Scott M. Bishop, for appellant. Westchester County District Attorney (William C. Milaccio, Raffaelina Gianfrancesco and Brian R. Pouliot of counsel), for respondent.

Appeal from judgments of the Justice Court of the Town of Greenburgh, Westchester County (Bonnie L. Orden, J.), rendered June 23, 2023. The judgments convicted defendant, upon jury verdicts, of two charges of assault in the third degree, and imposed sentences to run consecutively to each other.

ORDERED that the judgments of conviction are modified, on the law, by providing that the sentences shall run concurrently with each other; as so modified, the judgments of conviction are affirmed.

Following a jury trial, defendant was convicted of two charges of assault in the third degree (Penal Law § 120.00 [1]) and sentenced to, among other things, a 364-day term of incarceration on each charge, to run consecutively. Defendant served one 364-day term of incarceration and obtained a stay of the remainder of the incarceration component of the sentences. On appeal, defendant argues that the Justice Court improperly admitted, under the excited utterance exception to the hearsay rule, footage from a responding officer's body-worn camera (BWC) capturing statements made to the officer by the complainants; that the Justice Court erred when it failed to charge the jury on the withdrawal exception to the initial aggressor doctrine; that defendant's statutory right to a speedy trial was violated; and that the incarceration component of the sentences is illegal under Penal Law § 70.25 (3).

An excited utterance occurs "under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection" (People v Brown, 70 NY2d 513, 518 [1987] [internal quotation marks omitted]). "While it is critical that statements be made before a declarant had an opportunity to reflect, the relevant time period is not measured in minutes or seconds but rather is measured by facts" (People v Cotto, 92 NY2d 68, 79 [1998] [internal [*2]quotation marks omitted]). The court must examine "not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim" (People v Edwards, 47 NY2d 493, 497 [1979]). "That statements were made in response to an inquiry does not disqualify them as excited utterances but rather is a fact to be considered by the trial court" (Cotto, 92 NY2d at 79; see Edwards, 47 NY2d at 498-499). "The decision to admit hearsay as an excited utterance is an evidentiary decision, left to the sound judgment of the trial court" (People v Delacruz, 207 AD3d 652, 653 [2022] [internal quotation marks omitted]; see People v Cummings, 31 NY3d 204, 208 [2018]).

Here, it is clear from the BWC footage that the complainants were " 'still under the stress of excitement' " caused by the assaults (Delacruz, 207 AD3d at 653, quoting People v Hernandez, 28 NY3d 1056, 1057 [2016]) and "that the[ir] remarks were not made under the impetus of studied reflection" (People v Branch, 224 AD3d 919, 920 [2024] [internal quotation marks omitted]; see People v Jaber, 172 AD3d 1227, 1230 [2019]; People v Shah, 58 Misc 3d 95, 97-98 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Though some of the complainants' statements were preceded by a question from the officer, there is no basis for an inference that the statements represented "evolving fabrication[s] prompted by the [officer's] questioning" (People v Cantave, 21 NY3d 374, 382 [2013]; see People v Coveney, 43 Misc 3d 140[A], 2014 NY Slip Op 50810[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). "Moreover, there was 'an added assurance of reliability' since [the complainants] also [were] trial witness[es] and therefore subject to cross-examination" (People v Ortiz, 198 AD3d 924, 927 [2021], quoting People v Buie, 86 NY2d 501, 512 [1995]; see People v Caviness, 38 NY2d 227, 232 [1975]). Consequently, the Justice Court properly admitted the BWC footage under the excited utterance exception to the hearsay rule.

Defendant's claim regarding the jury charge is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]), and we decline to review it in the exercise of our interest of justice jurisdiction (see People v Swann, 172 AD3d 1110, 1110 [2019]; People v Lee, 167 AD3d 778, 779 [2018]; People v Seeley, 13 AD3d 562, 562 [2004]).

Since defendant never made a pretrial motion to dismiss the accusatory instruments on the ground that he was denied his statutory right to a speedy trial, he waived his right to a dismissal on statutory speedy trial grounds (see People v Lawrence, 64 NY2d 200, 203-204 [1984]; People v Key, 45 NY2d 111, 116 [1978]; People v Brown, 217 AD3d 681, 681-682 [2023]).

Penal Law § 70.25 (3) provides that, "[w]here consecutive definite sentences of imprisonment . . . are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate of the terms of such sentences shall not exceed one year." In the case at bar, defendant's convictions were based upon only one altercation even though it involved more than one victim. Therefore, as the People concede, the Justice Court was precluded by Penal Law § 70.25 (3) from imposing consecutive definite sentences that exceeded one year (see People v Orth, 125 AD3d 1474, 1474 [2015]; People v Gonzalez, 63 AD3d 1293, 1293-1294 [2009]; People v Frazier, 212 AD2d 976, 977-978 [1995]; People v Fraschilla, 198 AD2d 374, 374 [1993]; People v Judkins, 139 AD2d 792, 793 [1988]; cf. People v Almeida, 39 NY2d 823, 824 [1976]), and the judgments must be modified by providing that the [*3]364-day term of incarceration imposed on each charge of assault in the third degree shall run concurrently instead of consecutively.

Accordingly, the judgments of conviction are modified by providing that the sentences shall run concurrently with each other.

DRISCOLL, J.P., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.