Opinion
7819.
February 9, 2006.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered May 21, 2002, convicting defendant, after a jury trial, of criminal possession of stolen property in the third degree, and sentencing him to a term of 2 to 6 years, unanimously affirmed.
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), and Cadwalader, Wickersham Taft LLP, New York (Sean M. Tepe of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Before: Andrias, J.P., Friedman, Marlow, Catterson and Malone, JJ., concur.
The trial court properly admitted, as an excited utterance, a declaration made by the nontestifying attendant at a parking garage to his supervisor and friend in which he stated that two cars had just been taken at gunpoint by four men. The evidence, including testimony as to the declarant's demeanor, supported the conclusion that the robbery had just occurred and that the declarant was still under the influence of the stress of the incident ( see People v. Johnson, 1 NY3d 302; People v. Neloms, 8 AD3d 136, lv denied 3 NY3d 710; People v. Soba, 1 AD3d 205, 206, lv denied 1 NY3d 634). In any event, were we to find any error in the receipt of this evidence, we would find it to be harmless. Defendant was acquitted of robbery, and the evidence at issue added little or nothing to the proof supporting the charge of criminal possession of stolen property.
Defendant's Confrontation Clause argument and his argument concerning the court's charge are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.