People v. Del Rosario

—Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered June 12, 1991 convicting defendant, after a jury trial, of three counts of robbery in the first degree, two counts of criminal possession of a weapon in the second degree, attempted robbery in the first degree, kidnapping in the second degree, and burglary in the first degree and sentencing him to an aggregate term of 25 years to 50 years, unanimously affirmed.

The hearing court properly determined that defendant’s post-arrest statements made at the hospital, several hours after he had been shot twice by the police, were admissible. The officer, whom the court deemed to be a credible witness, ascertained from medical personnel that defendant’s condition had stabilized and was alert and coherent before administering the Miranda warning, after which defendant made statements now sought to be excluded. Moreover, defendant was sufficiently alert to offer an exculpatory rather than an inculpatory statement. Under the totality of these circumstances (see, People v Anderson, 42 NY2d 35), the statements were voluntarily given (see, People v Pagan, 163 AD2d 122, lv denied 76 NY2d 942). Similarly, the hearing court properly permitted the out-of-court identification of defendant by one of the complaining witnesses since the identification was made spontaneously, moments after a shootout with police, and was not the product of a police-arranged showup (see, People v Duuvon, 77 NY2d 541, 545-546).

We have reviewed defendant’s remaining contentions and find them to be without merit. Concur—Ellerin, J. P., Kupferman, Williams and Tom, JJ.