People v. Ocasio , 635 N.Y.S.2d 969 ( 1995 )

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered April 14, 1994, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third 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 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, 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]).

The defendant’s contention that the trial court erred in permitting testimony as to two statements that the victim made after being shot, in which he identified his assailant, is without merit. The statements were made within minutes of the victim having been shot five times while standing on a street corner and while he was bleeding to death. The circumstances surrounding the making of the statements reasonably justified the court’s conclusion that they were, not made under the impetus of studied reflection and that they were, therefore, admissible under the excited-utterance exception to the hearsay rule (see, People v Brown, 70 NY2d 513, 517-519; People v Garcia, 189 AD2d 587; People v Moore, 173 AD2d 568).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Santucci, Joy and Friedmann, JJ., concur.