| People v Mitchell |
| 2007 NY Slip Op 10491 [46 AD3d 480] |
| December 27, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Mitchell, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jessica Slutsky of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered October6, 2006, convicting defendant, after a jury trial, of attempted rape in the first degree and sexualabuse in the first degree, and sentencing him to an aggregate term of 3½ years,unanimously affirmed.
The court properly admitted the victim's statements as excited utterances. The evidenceestablished that the witnesses arrived immediately after the attack, and that the victim, describedby the witnesses as "screaming," "hysterical," and "gasping for air," was still under the influenceof the stress of that incident (see Peoplev Johnson, 1 NY3d 302 [2003]).
Defendant claims that the court failed to respond to a jury note or inform counsel of itsexistence (see People v O'Rama, 78 NY2d 270 [1991]). However, under all thecircumstances of the case, the only reasonable interpretation of the note in question is that thejury's request for "all evidence" referred to exhibits and not testimony. The note came at the veryoutset of deliberations, and the jury later asked for very specific readbacks of testimony, withoutmaking any reference to its earlier request for "all evidence." Since the parties had agreed thatexhibits would be delivered to the jury immediately on its request (see CPL 310.20 [1]),there is no basis for reversal.
Defendant's claim regarding the imposition of a mandatory surcharge and fees is unpreservedand we decline to review it in the interest of justice. Were we to review this claim, [*2]we would reject it (see People v Lemos, 34 AD3d 343 [2006], lv denied 8NY3d 924 [2007]). Concur—Tom, J.P., Friedman, Nardelli and Catterson, JJ.