PEOPLE v. CORKER

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Wykeme CORKER, a/k/a Wykeme Cooper, Appellant.

Decided: October 14, 2003

A. GAIL PRUDENTI, P.J., NANCY E. SMITH, WILLIAM D. FRIEDMANN and HOWARD MILLER, JJ. Robert C. Wilkie, Suffern, NY, for appellant, and appellant pro se. Michael E. Bongiorno, District Attorney, New City, N.Y. (Ann C. Sullivan and Carrie A. Ciganek of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Meehan, J.), rendered August 10, 2000, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

Contrary to the defendant's contention, the trial court properly admitted, as an excited utterance, the stabbing victim's out-of-court statement identifying the defendant as his assailant.   Whether a statement falls within the excited utterance exception to the hearsay rule is a determination to be made, in the first instance, by the trial court after consideration of all the circumstances (see People v. Brown, 70 N.Y.2d 513, 519-520, 522 N.Y.S.2d 837, 517 N.E.2d 515;  People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229;  People v. Caviness, 38 N.Y.2d 227, 231, 379 N.Y.S.2d 695, 342 N.E.2d 496).   Under the circumstances of this case, where the victim made the statement while under the influence of nervous excitement caused by his life-threatening injury and at a time when he was incapable of reasoned reflection and deliberation, the trial court properly admitted the statement as an excited utterance (see People v. Fratello, 92 N.Y.2d 565, 570, 684 N.Y.S.2d 149, 706 N.E.2d 1173, cert. denied 526 U.S. 1068, 119 S.Ct. 1462, 143 L.Ed.2d 548;  People v. Caviness, supra).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, either are unpreserved for appellate review or without merit.

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