People v. Shelter

—Judgment unanimously affirmed. Memorandum: County Court properly exercised its discretion in admitting a statement of an off-duty police officer pursuant to the excited utterance exception to the hearsay rule. The statement was made contemporaneously with a startling event, i.e., within minutes of the officer’s having observed a burning vehicle and two men leaving the scene (see, Prince, Richardson on Evidence § 8-604 [Farrell 11th ed]; see also, People v Cotto, 92 NY2d 68, 78-79; People v Edwards, 47 NY2d 493, 497).

Contrary to defendant’s contention, the court properly refused to give an expanded identification charge. No witness identified defendant as the perpetrator of the arson; rather, defendant’s identity as the perpetrator was based upon circumstantial evidence. Thus, there was no issue concerning the evaluation of identification testimony and no basis for an expanded identification charge (see, People v Figueroa, 172 AD2d 387, lv denied 78 NY2d 922). The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Monroe County Court, Marks, J. — Arson, 3rd Degree.) Present — Pigott, Jr., P. J., Wisner, Scudder, Burns and Gorski, JJ.