Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Fernando M. Camacho, J.), rendered January 21, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the third degree, criminal possession of a weapon in the fourth degree, menacing, and resisting arrest.

Judgment of conviction affirmed.

When the police arrived at the complainant's home in response to a 911 call, they heard shrieks and screams, and upon entering the premises, they encountered defendant, with his back toward them, seated on complainant's chest and appearing to strike her with a closed fist. Within moments of when the police separated defendant from complainant, who was half clothed, bloody, in "disarray," and had suffered
lacerations and had a swollen face, she stated that defendant had attempted to "cut" her and that he choked her, punched her in the mouth dislodging two of her teeth, and had threatened to kill her. For a time thereafter, the complainant was crying and "hysterical," and could not speak in complete sentences. The complainant did not testify at the trial.

Defendant's claim that the complainant's statements were admitted in violation of his Confrontation Clause rights is without merit. "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" (Davis v Washington, 547 US , 126 S Ct 2266, 2273 [2006]). As the circumstances herein clearly satisfy that standard, and as the criteria for the statements' admission under the excited utterance exception to the hearsay rule are also well-met (People v Vasquez, 88 NY2d 561, 579 [1996]), we find no error in the statements' admission (e.g. People v Smith, 37 AD3d 333, 334 [2007]; People v Marino, 21 AD3d 430, 431 [2005]). We note that defendant's alternate ground for suppression, that by the time certain of her statements were made, she had sufficiently recovered [*2]her "reflective faculties" (People v Edwards, 47 NY2d 493, 497 [1979]) to render the exception inapplicable, is not preserved for appellate review as he "failed to identify the specific questions and answers he found objectionable" (People v Jacquin, 71 NY2d 825, 826 [1988]).

Defendant's claim that prosecutorial misconduct on summation deprived him of a fair trial is without merit. Because the complainant's arrest scene statements were properly admitted, the prosecutor's references thereto constituted fair comment on the evidence (People v Ashwal, 39 NY2d 105, 109 [1976]). As for the prosecutor's comments inviting the jury to consider why defendant did not call the non-testifying complainant on his behalf, such comments impermissibly shifted the burden of proof to defendant and were better left unsaid. Nevertheless, they do not require reversal. Although the comments were better left unsaid, defendant never objected to them and, in any event, they were harmless in light of the overwhelming evidence of defendant's guilt (see People v McCray, 30 AD3d 443 [2006]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: May 21, 2007