Opinion
No. 2016BX051852.
10-20-2017
The PEOPLE of the State of New York, v. Emmanuel PEREZ, Defendant.
Darcel D. Clark, District Attorney, Bronx County by Cassandra Papandrew, for People. The Bronx Defenders by Alicia Sanchez Ramirez, Esq., for Defendant.
Darcel D. Clark, District Attorney, Bronx County by Cassandra Papandrew, for People.
The Bronx Defenders by Alicia Sanchez Ramirez, Esq., for Defendant.
CORI WESTON, J.
The defendant was initially charged with one count of Strangulation in the Second Degree (PL § 121.12); one count of Assault in the Third Degree (PL § 120.00[1] ); three counts of Endangering the Welfare of a Child (PL § 260.10 [1] ); one count of Criminal Obstruction of Breathing or Blood Circulation (PL § 121.11[a] ); one count of Aggravated Harassment in the Second Degree (PL § 240.30[4] ); and one count of Harassment in the Second Degree (PL § 240.26 [1] ). On December 2, 2016, the sole felony count of Strangulation in the Second Degree (PL § 121.12) was dismissed, the People answered ready on the first party misdemeanor complaint and the matter was deemed an information.
The People seek to introduce at trial a 911 call placed on the night of the alleged incident by the complainant's son stating, among other things, that his stepfather choked his mother. Throughout the call, a female voice, which is clearly the caller's mother (he refers to her as "mom"), is heard in the background sometimes correcting the caller's answers to the 911 operator's questions and at times discussing with him in Spanish and English the answers to the questions. The People have informed the Court and defense counsel that neither the caller nor his mother are expected to testify at trial.
The People seek to introduce the 911 call under the excited utterance and present sense impression exceptions to the hearsay rule. The defense maintains that the call should not be admitted because it is not an excited utterance or present sense impression and because the call violates the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004).
Hearsay is "an out-of-court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement." Guide to N.Y. Evid Rule 8.00, Admissibility of Hearsay; see also People v. Edwards, 47 N.Y.2d 493 (1979) ; People v. Nieves, 67 N.Y.2d 125 (1986) ; People v. Robinson, 27 Misc.3d 1216(A) (N.Y. Dist Ct, Nassau County 2010). Out-of-court statements may be introduced into evidence "only if they fall within one of the recognized exceptions to the hearsay rule." People v. Brensic, 70 N.Y.2d 9, 14 (1987). Since it is the People who seek to introduce the 911 call into evidence, they have the burden of proving that the call falls under an exception to the hearsay rule. People v. Cantave, 21 NY3d 374, 381 (2013) ; People v. Brensic, 70 N.Y.2d 9, 14 (1987) citing People v. Nieves, 67 N.Y.2d 125, 131 (1986).
The People concede, and the Court agrees, that it is unclear whether the caller actually witnessed the alleged incident or if he was merely repeating what was told to him by his mother. People's Memorandum of Law, ¶ 14. Since the People have the burden, and they concede the foregoing, the Court finds that the statements on the 911 call constitute double hearsay and both the caller's and the mother's statements to the caller must conform to an exception to the hearsay rule.
The People first seek to admit the 911 call into evidence as an excited utterance. The excited utterance exception to the hearsay rule provides that an out-of-court statement made in relation to a startling event or condition while the declarant was under the stress of excitement is admissible. People v. Vasquez, 88 N.Y.2d 561, 574 (1996). "Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy." People v. Edwards, 47 N.Y.2d 493, 497 (1979) ; see also People v. Nieves, 67 N.Y.2d 125, 135 (1986) ; People v. Johnson, 1 NY3d 302, 306 (2003) ; People v. Caviness, 38 N.Y.2d 227, 230–231 (1975). Factors to consider in determining whether a statement constitutes an "excited utterance" may include: "(1) the nature of the startling event; (2) the amount of time between the event and the statement; (3) the activities of the declarant between the event and the statement; (4) whether the declarant had an opportunity to deliberate and thus deviate from the truth; and (5) whether the circumstances indicate that the statement was not made ‘under the impetus of studied reflection.’ " People v. Diaz, 21 AD3d 58, 65–66 (1st Dept 2005), quoting People v. Edwards, 47 N.Y.2d 493, 497 (1979).
In the instant case, there is nothing on the 911 call to demonstrate that either the caller or his mother were operating under the stress of a startling event. They both spoke in a calm, measured manner and neither was crying or yelling.
The People claim that the mother was "desperately seeking help after being strangled by the defendant" and "was out of breath and crying for help." People's Memorandum of Law, ¶ 13 & ¶ 14. The People completely misrepresent the content of the 911 call. Upon listening to the 911 call, there is absolutely no indication that the caller described his mother's appearance or emotional state. Further, the caller never related that his mother was out of breath or crying for help. The mother is heard throughout the call communicating with the caller in a calm manner and certainly did not sound out of breath and was not crying.
The only mention of someone being out of breath is when the 911 operator asked the caller, "Any weapons? Any injuries? Does your mom need an ambulance or anything like that?" and the caller responded, "She said she couldn't breathe." This exchange is a clear indication that the 911 caller repeated something told to him rather than an observation made in the moment. It also relates to a description of what transpired during the alleged incident and not a report about the present moment. In fact, when asked by the 911 operator if an ambulance was needed, the caller is heard conferring with his mother and then stated, "She said no." Also, later, when the operator asked, "And he didn't have any weapons, and there was nobody injured?" the caller responded, "Yeah." The very fact that the caller and his mother conferred with one another and engaged in this type of back and forth discussion here, and throughout the call, evinces a capacity for reflection and deliberation.
The People compare this case to the First Department case of People v. Herndon, 41 AD3d 130 (1st Dept 2007) to support their argument. People's Memorandum of Law, ¶ 13 & ¶ 14. In Herndon, supra, the complainant, after being assaulted by the defendant with the sharp edge of a bottle, went upstairs to his apartment, "in a highly agitated state, bleeding profusely from a deep laceration in his shoulder." He told his wife he was just stabbed and almost robbed, but before his wife could respond, he ran out the door. His wife immediately called 911 and described her husband as "very hysterical", crying and confused. Id. The Court allowed the 911 call into evidence although the wife repeated the statement made by her husband. Id.
The People reason that the facts in Herndon mirror the facts of this case. They maintain that although the wife did not witness the startling event, the stabbing, the startling event for purposes of establishing an excited utterance was the wife seeing her husband bleeding profusely and being told by him that he had been stabbed and almost robbed. Likewise, they reason, the startling event for the caller in this case was "hearing from his mother who was out of breath and crying for help, that she was just strangled." People's Memorandum of Law, ¶ 14. The People's complete misrepresentation of the content of the 911 call leads to an incorrect analysis. There is nothing in the call to establish that the caller was startled by the way his mother appeared.
Additionally, the People's reasoning is flawed. The 911 call in Herndon also involved double hearsay and the Court allowed it into evidence as an excited utterance because both the husband's and wife's statements were made while they were under the stress of two separate starling events. 41 AD3d at 130. The first was the statement made by the husband to his wife that he had just been stabbed and almost robbed. The stabbing, perceived attempted robbery, his bleeding profusely, his hysterical, crying and confused state demonstrated he was under the stress of a startling and traumatic event. Id. Thus, his statement to his wife qualified as an excited utterance. The Court also held that while the wife did not witness the actual stabbing or attempted robbery, her statements to 911 qualified as an excited utterance because she experienced a startling event when she witnessed her husband bleeding profusely from a deep laceration to his shoulder and observed him to be hysterical, crying and confused. Id. Even more, the Court held the content of the 911 call demonstrated she was operating under the stress of a startling event. Id.
The caller here did not describe his mother as hysterical, crying, confused, bleeding or injured in any way, as the wife described the husband in Herndon. In fact, he did not describe his mother's appearance or emotional state at all. Moreover, the content of the 911 call in the case herein does not demonstrate that the caller was operating under the stress of a startling event as the content of the call in Herndon demonstrated with regard to the wife.
Furthermore, the Court in Herndon specifically noted that both the husband and the wife testified at trial and thus defense counsel had "unfettered cross-examination of both witnesses, providing an added assurance of reliability." 41 AD3d at 130. Here, the People acknowledge that neither the caller nor his mother are expected to testify at trial. "Where only direct evidence of a defendant's guilt is in the form of hearsay testimony, courts must be especially vigilant to ensure that only evidence that rises to the level of ‘inherent reliability’ is admitted at trial." People v. Johnson, 1 NY3d 302, 307–308 (2003), quoting People v. Edwards, 47 N.Y.2d 493, 499 (1979). This call cannot be deemed inherently reliable.
The People rely on other First Department cases to support their position. However, the facts of those cases are clearly distinguishable from the facts in this case. See People v. Rivera, 8 AD3d 53 (1st Dept 2004) [statement made by "crying screaming declarant"]; People v. Powell, 288 A.D.2d 5 (1st Dept 2001) [statements made by "crying, shaking and very upset" complainant]; and People v. Veeraswamy, 11 AD3d 345 (1st Dept 2004) [the Court held "the record establishe[d] that the declarant made the 911 call while still under the stress and excitement resulting from the incident" and the declarant testified at trial].
Accordingly, the People's motion to introduce the 911 call as an excited utterance is denied.
The People argue in the alternative that the 911 call is admissible as a present sense impression. The present sense impression exception to hearsay allows the introduction of out-of-court statements into evidence when they are made by a person who is perceiving the event as it is unfolding or immediately thereafter. People v. Vasquez, 88 N.Y.2d 561, 574–575 (1996) ; People v. Brown, 80 N.Y.2d 729, 732–734 (1993). The statements must also be corroborated by independent evidence establishing the reliability of the content of the statement. People v. Cantave, 21 NY3d 374 (2013). The rationale for admitting present sense impression statements is that they are deemed reliable because "the contemporaneity of the event observed and the hearsay statement describing it leaves no time for reflection. Thus, the likelihood of deliberate misrepresentation or faulty recollection is eliminated ." Brown, 80 N.Y.2d at 733 (internal citations omitted).
The People concede in their own arguments that it is unclear whether the caller actually witnessed the alleged incident, a critical fact in establishing that a statement is a present sense impression. Based upon this concession alone, it is clear the People failed to meet their required burden of establishing that the caller was describing events that he actually perceived. Remarkably, the People nevertheless advance the argument that the 911 call is a present sense impression and compare the case herein to the First Department case of People v. Richardson, 300 A.D.2d 13 (1st Dept 2002) in support of their argument. However, their analysis is flawed and contradictory.
In Richardson, supra, the defendant was accused of stealing the complainant's wallet. The Court in Richardson allowed into evidence a 911 call in which the complainant's sister described "seeing part of the wallet sticking out from the defendant's pants pocket and observed the victim following the defendant out of the store begging defendant to return it to her." 300 A.D.2d at 14. The People rely on Richardson because the Court allowed a statement into evidence as a present sense impression from a declarant who didn't witness the incident, but rather reported events that took place after the incident. Id. However, the Court allowed the statement into evidence because, while the declarant did not witness the incident, she still reported events that she personally observed, a critical fact missing in this case. Id. The People have failed to establish that the caller in this case ever described events he personally observed, whether during the alleged incident or after.
Even if the caller had personally perceived the events, the People have failed to prove that the 911 call is "contemporaneous[ ] with or even substantially contemporaneous with the events the caller is describing." People v. Vasquez, 88 N.Y.2d 561, 578 (1996). Contrary to the People's argument, the caller did not use contemporaneous language. When describing the alleged incident, the caller used the present tense once at the beginning of the call but, then, corrected himself and used the past tense throughout the rest of the call. He was, without a doubt, talking about an alleged incident that occurred in the past and had come to an end. In fact, the caller stated, after conferring with his mother, that the incident occurred two minutes before the call and that the defendant had already left the scene.
This case is very similar to the cases discussed in People v. Vasquez, 88 N.Y.2d 561 (1996). In Vasquez, the Court of Appeals reviewed three different cases involving present sense impressions. With respect to the contemporaneous requirement, the Court held that:
[A]lthough we recognize that there must be some room for a marginal time lag between the event and the declarant's description of that event, that recognition does not obviate the basic need for a communication that reflects a present sense impression rather than a recalled or recast description of events that were observed in the recent past. Without satisfaction of this requirement, the essential assurance of reliability—the absence of time for reflection and the reduced likelihood of faulty recollection—is negated and there is then nothing to distinguish the declaration from any other postevent out-of-court statement that is offered for the truth of its contents.
The Court found the 911 calls in all three cases did not qualify as present sense impressions. More importantly, in two of the cases reviewed, Dalton and Adkinson, the statements did not qualify as present sense impressions because they lacked the element of contemporaneity. In Dalton, the defendant called 911 after he shot and killed the victim. The content of the 911 call included the defendant's admission that after the deceased hit and smacked him in the back of his head with a gun, the defendant took the gun from the victim and shot him. The defense sought to introduce the 911 call as a present sense impression in support of his self-defense claim. The Court held that the call was inadmissible "for the simple reason that the statements it contained were not made contemporaneously or even substantially contemporaneously with the events they described. Instead, they were made after the entire sequence of events had come to a final and fatal end and defendant had run from the crime scene." Vasquez, 88 N.Y.2d at 578–579.
In Adkinson, the defense sought to introduce a tape of the 911 call made by the complainant's aunt on his behalf when he returned to his apartment immediately after being assaulted on the roof of his apartment building. The Court held that the call did not qualify as a present sense impression and found:
[L]ike the call in Dalton, the 911 call here took place after the events that were being described had come to an end and the declarant had removed himself to a different locale. Under these circumstances, the proffered statements could not rationally be characterized as recitations of an observer's present sense impressions.
Here, the two-minute time lag, the fact that the alleged incident had come to an end, the fact that the defendant had already left the scene, coupled with the back and forth discussions between the caller and his mother regarding the answers to the 911 operator's questions, demonstrates a time for reflection.
In an attempt to satisfy the corroboration requirement of the present sense impression exception, the People argue that the 911 call is corroborated by other evidence, including hearsay evidence, that they presume is admissible. However, they have not provided sufficient information for the Court to make a determination with regard to corroboration. Inasmuch as the Court finds that the People have failed to meet their burden of proving that the caller actually perceived the events or the contemporaneity requirement of this exception, it is not necessary for the Court to seek further clarification from the People regarding the alleged corroboration.
Accordingly, the People's motion to introduce the 911 call as a present sense impression is denied.
In light of the Court's decision denying the introduction of the 911 call as an excited utterance or a present sense impression, the Court need not determine whether the admission of the 911 call would violate the defendant's right under the Sixth Amendment's Confrontation Clause as it is moot.
This constitutes the decision of the Court.