Opinion
No. 2003-6 K CR.
Decided January 27, 2004.
Appeal by defendant from a judgment of the Criminal Court, Kings County (D. Chun, J), rendered on January 29, 2002, following a jury trial, convicting him of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40), and imposing sentence.
Judgment of conviction unanimously affirmed.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
Initially, we note that the court below erred in admitting the 911 tape under the excited utterance exception to the hearsay rule. At no point does the caller state that she personally witnessed a man climbing into a window; rather, she merely states that "someone just climbed in a window" of a building. Upon request, she described the building's location and added that an old man lives in the apartment. At no point in the call does she make any statement that would demonstrate that she was personally witnessing the occurrence, as opposed to relaying information supplied by another, especially since another voice can be heard in the background. Moreover, the call was made in a calm tone of voice with none of the interjections, expressions of urgency or interruptions of the 911 operator that would indicate spontaneity and an excited mental state ( see e.g. People v. Vasguez, 88 NY2d 561, 574-575). It therefore fails to give the requisite indication that the caller was "under the stress of excitement caused by an external event sufficient to still [her] reflective faculties, thereby preventing opportunity for deliberation . . ." ( People v. Brown, 70 NY2d 513, 519, quoting People v. Edwards, 47 NY2d 493, 497).
However, under the circumstances of this case, the error was harmless beyond a reasonable doubt ( see People v. Johnson, ___ NY2d ___ [Dec. 22, 2003]). The People presented evidence through unequivocal testimony, unshaken in all essentials upon cross-examination, that defendant was apprehended emerging from the complainants' apartment window; that he did not live there or otherwise have permission to be on the premises; that a beeper recovered from defendant's person belonged to one of the complainants; and that defendant did not have permission to possess the beeper, establishing the elements of both crimes of which defendant was convicted ( see People v. Jensen, 86 NY2d 248, 252-253 [19951; People v. Chavel, 161 AD2d 413). The evidence of guilt was overwhelming, and, despite the prosecutor's reference in summation to the 911 tape as evidence of defendant's guilt, there is no reasonable possibility that the erroneous admission of the 911 tape contributed to defendant's conviction ( People v. Smith, 97 NY2d 324 [hearsay statement]; People v. Crimmins, 36 NY2d 230, 237; see also Chapman v. California, 386 US 18).