dissents and votes to reverse the judgment and grant the defendant a new trial with the following memorandum in which Goldstein, J., concurs. I respectfully disagree with my colleagues. In my opinion, it was reversible error not to strike the 911 tape recording from evidence after the complainant admitted on cross-examination that she had knowingly and purposely lied to the 911 operator that the defendant had a gun. Accordingly, I would reverse and grant a new trial.
The underpinnings of the excited utterance exception to the prohibition against hearsay evidence require that in order for a statement to be admitted as an excited utterance, it must have been made contemporaneously or immediately after a startling event, while the person was still under the influence of the excitement precipitated by the event, and therefore, lacked the reflective capacity essential for fabrication (see, *614People v Edwards, 47 NY2d 493, 497; see also, People v Caviness, 38 NY2d 227; Barker and Alexander, Evidence in New York State and Federal Courts § 803 [l].l [West 1996]). The test is "whether the declarant was so influenced by the excitement and shock of the event that it is probable that he or she spoke impulsively and without reflection rather than reflectively and with deliberation” (People v Caviness, supra, at 231).
In the instant case, the fact that the complainant had the cognitive ability to purposely lie to the 911 operator that the defendant possessed a gun in an effort to prompt a more immediate police response demonstrates that she was acting "under the impetus of studied reflection” (People v Edwards, supra, at 497; see also, People v Brown, 70 NY2d 513; People v Esquilin, 207 AD2d 686; People v Lee, 177 AD2d 288; People v Russell, 161 AD2d 815). In my view, her prevarication undermined the essential reliability of the subject statement (see, People v Edwards, supra; People v Caviness, supra).
Nor can I agree with my colleagues’ assessment that admission of the 911 tape recording was a provident exercise of the trial court’s discretion. In its findings, on which it based its denial of the defendant’s motion for a mistrial following the court’s jury charge, the court stated, "were it not for the fact that she did fabricate admittedly * * * it would seem to me inescapably that her statements to the 911 operator were an excited utterance”. It appears to me, therefore, that the court recognized, but improvidently chose to disregard, an essential criterion that an excited utterance must lack the reflective capacity essential for fabrication (see, People v Edwards, supra). My colleagues find this acceptable. I do not.
Furthermore, it is my opinion that inasmuch as the evidence related to the sexual offenses committed was hardly overwhelming, the error stemming from admission of the tape cannot be deemed harmless (see, People v Crimmins, 36 NY2d 230).