dissents and votes to affirm with the following memorandum, with which H. Miller, J., concurs. The issue as framed by the defendant in this appeal is limited in scope. During argument at the pretrial hearing, and subsequently at trial, the defendant contended that the statements made by the victim were inadmissible, inter alia, because of the amount of time between the shooting and when the statements were made, because they were made in response to questions, and because they were not excited utterances, but rather a violation of the Dead Man’s Statute. The defendant contends that these statements were inadmissible because they contradict the description of the events and the description of the perpetrator proffered by the victim to the police while still at the scene. The defendant argues that these contradictory descriptions evince the victim’s ability to reflect on the situation. This theory, however, was never advanced at the pretrial hearing or the trial. Therefore, the defendant failed to preserve this claim for appellate review (see, CPL 470.05 [2]).
In any event, the first statement which the victim made to the witness does qualify as an excited utterance and was properly admitted at trial. The witness testified that he heard gunfire, turned, and saw the defendant riding a bicycle away *518from the scene holding a gun in his hand. Within three to five seconds after the shooting, he was at the victim’s side. The witness testified that the victim immediately spoke of his injury and pain. The next remark by the victim was that he could not believe that the defendant had shot him.
The circumstances under which the victim made this statement reasonably justified the Supreme Court’s conclusion that the remark was not made under the impetus of studied reflection (see, People v Edwards, 47 NY2d 493, 497; People v Harris, 276 AD2d 562). The defendant was allowed, through cross-examination at trial, to examine the circumstances surrounding this statement and the jury could have rationally accepted a version which resulted in a verdict of guilty. In light of the compelling evidence of guilt as described, coupled with the victim’s identification of the defendant as the perpetrator immediately after the shooting, any error in allowing subsequent remarks by the victim in evidence was harmless (see, People v Crimmins, 36 NY2d 230). Accordingly, I vote to affirm the conviction.