PEOPLE v. LUKE

The court properly admitted the testifying victim's statement to a social worker as an excited utterance ( see People v. Johnson, 1 N.Y.3d 302). The evidence established that the distraught victim, described by a witness as hysterical, was still under the stress of the brutal beating that defendant had inflicted a short time before.

The court properly refused to submit assault in the third degree as a lesser included offense of assault in the second degree. Given the nature of the victim's injuries, as well as fact that her testimony constituted an integrated whole ( see People v. Negron, 91 N.Y.2d 788), there was no reasonable view of the evidence that defendant assaulted the victim with just his hands rather than with a dangerous instrument.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.