| People v Fernandes |
| 2009 NY Slip Op 03746 [62 AD3d 721] |
| May 5, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v FrankFernandes, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Rossof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal,J.), rendered May 8, 2007, convicting him of attempted assault in the second degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress his statement to lawenforcement officials.
Ordered that the judgment is affirmed.
The record supports the hearing court's determination that the defendant's statement, takenafter he was placed in custody but before Miranda warnings (see Miranda vArizona, 384 US 436 [1966]) were given, was made voluntarily and spontaneously and wasnot the product of police interrogation or its functional equivalent (see People v Lynes,49 NY2d 286, 294 [1980]; People v Nevone, 258 AD2d 944 [1999]; People vHarrison, 251 AD2d 681 [1998]; People v Zanders, 241 AD2d 531 [1997]).
Contrary to the defendant's contention, the court properly admitted into evidence a statementmade by the complainant's then-10-year-old daughter shortly after she witnessed the subjectcrime and struggled with the defendant over the weapon used in the crime, under the excitedutterance exception to the hearsay rule (see People v Edwards, 47 NY2d 493, 497[1979]; People v Donahue, 50AD3d 820, 821 [2008]; People v [*2]Rodriguez, 306AD2d 686, 688 [2003]). Mastro, J.P., Skelos, Santucci and Hall, JJ., concur.