Judgment modified, on the law, by reducing the conviction of assault in the first degree to assault in the second degree, and vacating the sentence imposed thereon. As modified, judgment affirmed and matter remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

This case involves the holdup of a Brooklyn social club during which one person was killed and another was injured by a gunshot wound to the leg. As police arrived at the scene, numerous bystanders, presumably patrons of the club, shouted, "he killed him" and "he's one of them, he shot him", referring to defendant. Two police officers were permitted to testify, over objection, that they heard those statements, and thereafter placed defendant under arrest.

It may well be that the brutal circumstances of this crime were such as would "reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection" ( People v Edwards, 47 N.Y.2d 493, 497) and should, therefore, be admissible as spontaneous declarations. The spontaneous declaration exception to the hearsay rule applies to remarks made by bystanders, as well as participants ( People v. Caviness, 38 N.Y.2d 227). Here, little time elapsed between the event and the statements, and there is no reason to believe the hearsay declarants may have fabricated their statements (cf. People v Marks, 6 N.Y.2d 67, cert den 362 U.S. 912; People v. Sostre, 70 A.D.2d 40, affd 51 N.Y.2d 958). However, there was no proof of who those declarants were, much less whether they had "adequate opportunity to observe the event" ( People v. Caviness, supra, p 232). Accordingly, it was error to permit such testimony. However, since proof of defendant's guilt was overwhelming there is no reasonable probability the error affected the outcome of the trial, and we therefore deem it to be harmless ( People v Crimmins, 36 N.Y.2d 230).

However, the judgment must be modified because the People failed to adduce legally sufficient evidence to support the conviction of assault in the first degree. The victim of the gunshot wound did not testify. The record of his three-day hospitalization was received in evidence, but failed to establish that the wound created a substantial risk of death or that the wound caused a protracted impairment of the victim's health, a protracted disfigurement, or a protracted loss or impairment of the function of a bodily organ (Penal Law, §§ 10.00, subd 10; 120.10, subd 4). Since there is no dispute that the victim suffered a physical injury (Penal Law, § 10.00, subd 9), we reduce the conviction to assault in the second degree (Penal Law, § 120.05, subd 6). Titone, J.P., Mangano, Weinstein and Brown, JJ., concur.