Opinion
May 11, 1992
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment is affirmed.
Contrary to the contention of the defendant, the trial court did not err in admitting the victim's statements to his girlfriend and a police officer identifying the defendant as his assailant since the statements were admissible as excited utterances (see, People v. Edwards, 47 N.Y.2d 493; see also, Fisch, New York Evidence § 1000). The testimony established that the victim made his unsolicited statement to his girlfriend minutes after being shot in the stomach in their apartment. The testimony also established that the victim was bleeding, breathing heavily, perspiring, weak, dizzy, and expressing a desire to go to the hospital when the statement was made. Although the victim's statement to the police officer was made approximately 30 minutes later, the surrounding circumstances justify the conclusion that the statement was not made under the impetus of studied reflection and that the victim was still under the continuing stress and excitement of the shooting (see, People v. Edwards, supra; People v. Brooks, 71 N.Y.2d 877; People v Brown, 70 N.Y.2d 513). Moreover, the fact that the statement was made in response to an inquiry does not warrant its exclusion (see, People v. Edwards, supra; People v. Brooks, supra; People v. Brown, supra).
Although the defendant argues that the absence of an identification charge constituted reversible error, the defendant's failure to request an identification charge or to except to the charge as given renders his argument unpreserved for appellate review (see, CPL 470.05; People v Hesterbey, 134 A.D.2d 615; People v. Rodriguez, 130 A.D.2d 522; People v. McCorkle, 119 A.D.2d 700). In any event, due to the overwhelming evidence of the defendant's guilt, there is no significant probability that, had the jury been given an identification charge, it would have acquitted the defendant (see, People v. Crimmins, 36 N.Y.2d 230; People v. Smith, 100 A.D.2d 857). Bracken, J.P., Sullivan, Eiber and Pizzuto, JJ., concur.