725 N.Y.S.2d 505 | N.Y. App. Div. | 2001
—Judgment
Supreme Court properly determined that the testimony of the security guard concerning the statements made to him by defendant’s wife were admissible under the excited utterance exception to the hearsay rule. “[T]he decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” (People v Edwards, 47 NY2d 493, 497). Under the circumstances presented here, we conclude that the
Defendant contends that the court erred in responding to an oral request by the jury foreperson for further instructions, made in the presence of counsel and defendant, without first affording defense counsel the opportunity to participate in formulating the response. By failing to object at a time when the error could have been corrected, defendant failed to preserve that contention for our review (see, People v DePillo, 262 AD2d 996, 997, lv denied 93 NY2d 1044).
Finally, the court properly denied defendant’s request to instruct the jury on the defense of justification. “Even when the evidence is viewed in [the] light most favorable to the defendant, as is required whenever a claim is made that the trial court should have instructed the jury on the defense of justification * * * it is clear that the jury would be engaging in sheer speculation if it were asked to draw the inference that the defendant was acting * * * in self defense” because he believed that he was the victim of a “home invasion” robbery (People v Johnson, 123 AD2d 330). (Appeal from Judgment of Supreme Court, Monroe County, Ark, J. — Attempted Murder, 1st Degree.) Present — Pigott, Jr., P. J., Wisner, Scudder, Kehoe and Burns, JJ.