People v. Arroyo , 685 N.Y.S.2d 11 ( 1999 )

—Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered January 23, 1995, convicting defendant, after a jury trial, of murder in the second degree and attempted murder in the second degree, and sentencing him, as a persistent violent felony offender, to consecutive terms of 25 years to life, unanimously affirmed.

The trial court properly admitted as an excited utterance the statement of a victim who had sustained, only minutes before, five gunshots, which penetrated vital organs, causing great pain and gasping for breath; the victim responded to the officer’s question, “what happened?” (see, People v Brown, 70 NY2d 513, 520).

The challenged portions of the prosecutor’s summation were for the most part fair comment upon the evidence directly responsive to defendant’s summation, and did not unfairly prejudice defendant (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976). Furthermore, the court’s instructions corrected any possible prejudice, and any error would be harmless in view of the overwhelming evidence of defendant’s guilt.

We have considered and rejected defendant’s remaining contentions, including those contained in his pro se supplemental brief. Concur—Rosenberger, J. P., Ellerin, Tom and Mazzarelli, JJ.