New York Law Review

Tag: Hearsay

  • People v. Vasquez, 88 N.Y.2d 742 (1996): Hearsay Exception for Present Sense Impression Requires Contemporaneity

    88 N.Y.2d 742 (1996)

    The present sense impression exception to the hearsay rule requires that the statement be made contemporaneously with the event being described, leaving no time for reflection.

    Summary

    The New York Court of Appeals held that a 911 call reporting a past crime was improperly admitted as a present sense impression. The caller identified the defendant as the person who committed a murder several hours earlier. The court reasoned that the time lapse between the event and the statement allowed for reflection, undermining the reliability of the statement. While the admission was deemed erroneous, the court found it to be harmless given the overwhelming evidence of guilt from eyewitness testimony.

    Facts

    On August 12, 1993, at approximately 4:30 a.m., the defendant, Vasquez, allegedly shot and killed the victim. Two eyewitnesses identified Vasquez as the shooter. Between 7:11 a.m. and 7:31 a.m., an anonymous caller made 911 calls claiming to observe the person who committed the murder earlier that morning. The caller described the suspect’s clothing. These 911 tapes were introduced as evidence at trial.

    Procedural History

    The defendant was convicted of homicide and weapons possession. The trial court admitted the 911 tapes under the present sense impression exception to the hearsay rule. The defendant appealed, arguing the tapes were improperly admitted. The Appellate Division affirmed the conviction. The New York Court of Appeals then reviewed the case.

    Issue(s)

    1. Whether the 911 tapes were properly admitted under the present sense impression exception to the hearsay rule when the caller referred to observations made several hours earlier.

    2. Whether the admission of the 911 tapes, if erroneous, constituted harmless error.

    Holding

    1. No, because the caller had time for reflection between the event (the shooting at 4:30 a.m.) and the 911 call (made after 7:00 a.m.), which negates the reliability that underlies the present sense impression exception.

    2. Yes, because the proof of guilt was overwhelming based on eyewitness testimony, and there was no significant probability that the jury would have acquitted had the 911 tapes not been introduced.

    Court’s Reasoning

    The Court of Appeals determined that the 911 tapes were erroneously admitted because they did not meet the requirements of the present sense impression exception. The court emphasized that the key to this exception is the contemporaneity of the statement and the event observed, which eliminates the possibility of reflection or faulty recollection. The court quoted People v. Brown, stating that “because the contemporaneity of the event observed and the hearsay statement describing it leaves no time for reflection * * * the likelihood of deliberate misrepresentation or faulty recollection is eliminated.” The court found that the three-hour time lapse provided ample opportunity for reflection, rendering the identification unreliable.

    The court then addressed whether the error was harmless. It applied the nonconstitutional harmless error standard from People v. Crimmins, which requires assessing whether (1) proof of guilt was overwhelming; and (2) there was no significant probability that the jury would have acquitted had the proscribed evidence not been introduced. The court found that the eyewitness testimony and the defendant’s flight demonstrated overwhelming evidence of guilt. The court further noted that the 911 tapes lacked detail and contained potential discrepancies, making it unlikely that the jury’s verdict depended on their admission. Therefore, the court concluded that the erroneous admission of the 911 tapes was harmless error.

  • People v. Casey, 95 N.Y.2d 354 (2000): Preserving Objections to Hearsay in Criminal Informations

    People v. Casey, 95 N.Y.2d 354 (2000)

    Hearsay pleading defects in the factual portion of a local criminal court information must be preserved by timely objection to be reviewable on appeal.

    Summary

    Casey was convicted of criminal contempt for violating a Temporary Order of Protection. He appealed, arguing the information charging him was jurisdictionally defective because it lacked non-hearsay allegations of his knowledge of the order and failed to attach the order itself. The Court of Appeals held that while the information had a potential hearsay defect, Casey’s failure to raise a timely pretrial objection waived his right to challenge it on appeal. The Court clarified that not all pleading defects are jurisdictional, distinguishing between failing to plead an element of the crime (non-waivable) and using hearsay to plead an element (waivable if not objected to). The Court emphasized the importance of preserving objections and the curability of hearsay defects through amendment.

    Facts

    A Temporary Order of Protection was issued against Casey in connection with a harassment charge. The complainant reported a violation of the order to the police. A detective verified the order and interviewed the complainant, who showed him a certified copy. The detective contacted Casey, who confirmed he was served with the order. Casey surrendered, was given Miranda rights, and made statements implying he violated the order.

    Procedural History

    Casey moved to suppress his statements, which was denied. He was convicted of criminal contempt. The Appellate Term affirmed, rejecting Casey’s arguments that the information was defective and his statements inadmissible. Casey appealed to the Court of Appeals.

    Issue(s)

    Whether a hearsay pleading defect in a local criminal court information, specifically the failure to include a non-hearsay allegation of the defendant’s knowledge of the order violated, must be preserved by timely objection to be reviewable on appeal.

    Holding

    No, because hearsay pleading defects in the factual portion of a local criminal court information must be preserved to be reviewable on appeal. Casey’s failure to raise a timely objection waived the defect.

    Court’s Reasoning

    The Court of Appeals addressed whether the hearsay allegation regarding Casey’s knowledge of the order was a jurisdictional defect that could be raised for the first time on appeal. The Court distinguished People v. Alejandro, clarifying that while failure to plead an element of a crime is a non-waivable jurisdictional defect, using hearsay to plead an element is waivable if not objected to. The Court reasoned that pre-CPL case law required non-hearsay criminal pleadings, but any hearsay defect was waived if not raised in a pretrial motion. The court found no legislative intent in the Criminal Procedure Law to change this. It stated that the non-hearsay requirement is met if the allegation falls under a hearsay exception. Here, the detective’s allegation of service was admissible under the public documents exception (certified copy of the order) and Casey’s admission to the detective. The Court stated, “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” The Court emphasized that pleading deficiencies cannot be jurisdictional because a court must have and exercise subject matter jurisdiction to rule on the sufficiency of a pleading. Moreover, the defect was curable by amendment. The Court concluded that because Casey failed to object to the hearsay defect before trial, he was precluded from raising it on appeal.

  • People v. Hansen, 95 N.Y.2d 227 (2000): Effect of Guilty Plea on Challenging Grand Jury Proceedings

    People v. Hansen, 95 N.Y.2d 227 (2000)

    A guilty plea generally forfeits the right to appellate review of claims relating to rights deprivations occurring before the plea, except for jurisdictional defects or constitutional rights impacting the process’s integrity.

    Summary

    Hansen pleaded guilty to attempted burglary. He then sought to challenge his indictment, arguing that the Grand Jury proceedings were impaired by the prosecutor’s introduction of inadmissible hearsay (a news report). The trial court rejected this argument, and the Appellate Division affirmed, holding that the guilty plea waived the right to challenge the Grand Jury proceeding. The New York Court of Appeals affirmed, holding that the guilty plea forfeited the right to challenge the Grand Jury proceeding because the defect was evidentiary, not jurisdictional or constitutional.

    Facts

    Harold Stickney testified before the Grand Jury that he awoke to noises outside his home, saw Hansen on his porch with a shovel trying to break in, and confronted him with a gun. Deputy Stark testified that he apprehended Hansen, who claimed he was there to shovel snow. Hansen testified that he was under the influence of medication and hallucinating. The prosecutor then played a portion of a news report where a reporter stated that Hansen was charged with attempted burglary. The prosecutor told the grand jurors to only consider Hansen’s statement on the tape. Hansen was indicted for burglary and related charges.

    Procedural History

    Hansen moved to dismiss the indictment, arguing the Grand Jury proceeding was defective due to the hearsay in the news report. The motion court denied the motion. Hansen pleaded guilty to attempted first-degree burglary. The Appellate Division affirmed, holding the plea waived the challenge to the Grand Jury proceeding. Hansen appealed to the New York Court of Appeals.

    Issue(s)

    Whether a defendant who pleads guilty forfeits the right to argue on appeal that the Grand Jury proceedings were impaired by the prosecutor’s introduction of inadmissible hearsay evidence.

    Holding

    No, because the defect was not jurisdictional or a constitutional violation that impacted the integrity of the process. The Court of Appeals held that the defendant’s guilty plea forfeited his right to challenge the Grand Jury proceeding on the basis of the inadmissible hearsay.

    Court’s Reasoning

    The Court of Appeals reasoned that a guilty plea generally marks the end of a criminal case. A guilty plea encompasses a waiver of specific trial rights and forfeits the right to revive certain pre-plea claims. However, issues relating to jurisdictional matters or constitutional rights that go to the heart of the process survive a guilty plea. The court distinguished between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not. Here, the Court found that the introduction of the videotaped remarks was an evidentiary error, not a jurisdictional or constitutional one. “Flaws of an evidentiary or technical nature are thus forfeited by a guilty plea.” The court noted that a valid and sufficient accusatory instrument existed, enabling the court to acquire jurisdiction. The court distinguished this case from People v. Pelchat, where the prosecutor knew there was no evidence to support the indictment. Here, there was sufficient evidence, even without the videotape. The court emphasized that after a guilty plea, the sufficiency of the evidence before the Grand Jury cannot be challenged.

  • People v. James, 93 N.Y.2d 620 (1999): Admissibility of Intent to Prove Joint Action

    93 N.Y.2d 620 (1999)

    A declarant’s statement of future intent is admissible to prove the joint or cooperative action of the declarant and another person, provided certain foundational safeguards are met to ensure the statement’s reliability.

    Summary

    Defendant James was convicted of perjury for falsely denying his presence at a meeting where an upcoming police promotional exam was discussed. The prosecution introduced a recorded conversation between Lieutenant Gordon and Lizette Lebron, where Gordon mentioned that James would be at the meeting. The Court of Appeals upheld the conviction, ruling that Gordon’s statement of intent was admissible under the state of mind exception to the hearsay rule. The court extended the exception to include statements of intent to prove the joint action of the declarant and another, provided that specific reliability requirements are satisfied. This case clarifies the scope of the state of mind exception and provides a framework for admitting statements of intent to prove joint conduct.

    Facts

    Defendant James, along with other Transit Police officers, was preparing for a sergeant’s promotional exam. Lieutenant Gordon, who helped draft the exam, arranged a meeting to disclose exam contents to James and others. Lebron’s phone inadvertently recorded a conversation where Gordon confirmed the meeting and mentioned James’s attendance. During a Grand Jury investigation, James denied attending the meeting. At trial, Gordon invoked his privilege against self-incrimination, but the recording was admitted to prove James’s presence at the meeting, contradicting his Grand Jury testimony.

    Procedural History

    Defendant was indicted on six counts of perjury. At trial, the recorded conversation was admitted over defendant’s objection. The jury convicted James on two counts of perjury. The Appellate Division affirmed the conviction. The New York Court of Appeals affirmed the Appellate Division’s order, upholding the trial court’s evidentiary rulings.

    Issue(s)

    1. Whether Gordon’s October 20 statement to Lebron is admissible under the state of mind exception to the hearsay rule to prove the joint action of Gordon and the defendant.

    2. Whether the trial court erred in admitting Gordon’s October 24 statement, without redacting the defendant’s name, as a declaration against penal interest.

    3. Whether the admission of the pre-meeting and post-meeting statements violated the defendant’s right to confront witnesses.

    4. Whether the trial court erred in refusing to grant defendant’s request for a permissive adverse inference charge as a sanction against the People for Lebron’s destruction of evidence.

    Holding

    1. Yes, because the statement of future intent can be admitted to prove the joint action of the declarant and another, provided certain foundational safeguards are met.

    2. No, because the specific naming of the defendant was self-inculpatory to Gordon and falls within the declaration against penal interest exception.

    3. No, because the circumstances surrounding Gordon’s statements bear sufficient indicia of reliability to satisfy constitutional requirements.

    4. No, because the People had no affirmative obligation to preserve it at the time the evidence was destroyed.

    Court’s Reasoning

    The Court reasoned that Gordon’s statement of intent to hold the meeting and reveal exam questions was relevant to prove the materiality element of the perjury charge. The court relied on Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), to support the admissibility of the statement, emphasizing that it could be used to infer not only Gordon’s actions but also the joint action with James. The court established foundational safeguards for admitting such statements, including unavailability of the declarant, unambiguity of intent, recency of any prior arrangement, and independent evidence of reliability. The court found these safeguards were met in this case. The court also held the statement admissible as a declaration against penal interest. The Court further reasoned that the admission of Gordon’s statements did not violate the Confrontation Clause, as the statements bore particularized guarantees of trustworthiness. Lastly, the court found no abuse of discretion in the trial court’s refusal to grant the defendant’s request for a permissive adverse inference charge as a sanction against the People for Lebron’s destruction of evidence. The evidence had not been “gathered by the prosecution or its agent” and, thus, the People had no affirmative obligation at that point to preserve it.

  • People v. Sadler, 96 N.Y.2d 297 (2001): Necessity of Sirois Hearing When Witness Intimidation is Alleged

    People v. Sadler, 96 N.Y.2d 297 (2001)

    When the prosecution seeks to introduce an unavailable witness’s hearsay statements based on defendant’s alleged misconduct procuring that unavailability, a Sirois hearing is required unless the evidence of witness tampering is so overwhelming as to satisfy the clear and convincing standard and render a hearing superfluous, or the defendant waives such a hearing.

    Summary

    Sadler, a pastor, was convicted of rape and sodomy involving a 12-year-old parishioner. At trial, the victim refused to testify. The prosecution sought to introduce her grand jury testimony, arguing Sadler had intimidated her into silence. The trial court admitted the testimony without a Sirois hearing, finding defendant had silenced the witness. The Appellate Division reversed, holding a hearing was necessary. The Court of Appeals affirmed, reiterating that a Sirois hearing is crucial to protect the defendant’s confrontation rights, unless the evidence overwhelmingly establishes witness tampering or the defendant waives the hearing. Here, competing inferences existed, necessitating a hearing.

    Facts

    Defendant, a 52-year-old pastor, engaged in a relationship with a 12-year-old girl from his congregation. The girl’s mother discovered sexually explicit letters the girl had written to defendant. After a pregnancy test confirmed the girl was pregnant, the mother took her to the police. The girl, at the police station, made recorded phone calls to the defendant. After defendant’s arrest, the victim testified before the Grand Jury and at a suppression hearing. At trial, however, she refused to testify.

    Procedural History

    Defendant was convicted of rape and sodomy in the second degree and endangering the welfare of a child. He appealed, arguing the trial court erred in admitting the Grand Jury testimony without a Sirois hearing. The Appellate Division reversed. The People appealed to the Court of Appeals by permission.

    Issue(s)

    Whether the trial court erred in admitting the victim’s Grand Jury testimony without holding a Sirois hearing to determine if the defendant’s misconduct procured the witness’s unavailability.

    Holding

    Yes, because the evidence before the trial court did not so overwhelmingly establish witness tampering as to satisfy the clear and convincing standard, and the defendant did not waive his right to a hearing.

    Court’s Reasoning

    The Court emphasized the importance of a Sirois hearing to safeguard a defendant’s Sixth Amendment confrontation rights, stating that the hearing plays the “valuable role of sentry, admitting statements not subject to cross-examination only where the requisite link between the defendant’s misconduct and the witness’s silence has been established.” The court cited People v. Geraci, noting that it required “clear and convincing evidence” to overcome a defendant’s constitutional rights. It quoted: “Obviously, a defendant’s loss of the valued Sixth Amendment confrontation right constitutes a substantial deprivation. Additionally, and even more significantly, society has a weighty investment in the outcome, because of the intimate association between the right to confrontation and the accuracy of the fact-finding process.”

    The Court acknowledged that the taped phone calls suggested the defendant exerted pressure on the victim, but also noted that these calls happened before the Grand Jury testimony and arrest. Defendant had a right to challenge the People’s theory at a hearing, which was denied. The Court rejected the argument that defense counsel had waived the hearing, stating he merely argued the application was insufficient and promptly requested a hearing when the court ruled on the Sirois issue. Because a Sirois hearing was necessary to fully vet the issue of witness tampering, the court affirmed the decision of the Appellate Division.

  • People v. Cotto, 92 N.Y.2d 68 (1998): Admissibility of Witness Statements After Witness Intimidation

    92 N.Y.2d 68 (1998)

    When a defendant intimidates a witness, resulting in the witness’s refusal to testify, the court may admit the witness’s prior out-of-court statements if the prosecution demonstrates, by clear and convincing evidence, that the defendant’s misconduct caused the witness’s unavailability.

    Summary

    Richard Cotto was convicted of second-degree murder. A key witness, Echevarria, initially identified Cotto as the shooter but later recanted, claiming his family was in danger. The prosecution argued that Cotto intimidated Echevarria. A Sirois hearing was held to determine the validity of the claim of witness tampering. The trial court found clear and convincing evidence of intimidation and admitted Echevarria’s prior statements. Cotto appealed, arguing that the evidence was insufficient and that his right to cross-examine Echevarria was improperly curtailed. The Court of Appeals affirmed the conviction, finding sufficient evidence to link the threats to Cotto and holding that Echevarria’s statements were sufficiently reliable.

    Facts

    Anthony Echevarria was an eyewitness to the shooting death of Steven Davilla. Echevarria initially identified Richard Cotto as the shooter in statements to police and prosecutors. Before trial, Echevarria informed the prosecution that he would no longer identify the shooter, citing concerns for his family’s safety. At trial, Echevarria claimed he could not identify the shooter. The prosecution alleged that Cotto had intimidated Echevarria into silence, pointing to threats received by Echevarria’s family.

    Procedural History

    The trial court held a Sirois hearing to determine if Cotto had intimidated Echevarria. The trial court found clear and convincing evidence of intimidation and admitted Echevarria’s prior statements. Cotto was convicted. The Appellate Division affirmed the conviction. Cotto appealed to the Court of Appeals.

    Issue(s)

    1. Whether the People presented clear and convincing evidence that Cotto, through violence, threats, or chicanery, caused Echevarria’s unavailability as a witness.

    2. Whether Echevarria’s out-of-court statements possessed sufficient indicia of reliability to be admitted.

    3. Whether the trial court improperly precluded cross-examination of Echevarria after the Sirois hearing.

    4. Whether the victim’s statements to the police officer in the ambulance should have been admitted as an excited utterance.

    Holding

    1. Yes, because the circumstantial evidence, including threats to Echevarria’s family, Cotto’s knowledge of Echevarria’s identity, and Cotto’s prior intimidation of Echevarria, sufficiently linked Cotto to the threats.

    2. Yes, because Echevarria’s statements were made shortly after the event, were consistent, and were corroborated by the testimony of multiple witnesses, indicating their reliability.

    3. The issue was unpreserved for appeal.

    4. Yes, because the victim was under extreme stress from a recent gunshot wound, preventing the victim from engaging in reflection and giving his statements the necessary indicia of reliability.

    Court’s Reasoning

    The Court of Appeals affirmed, holding that the prosecution had met its burden of demonstrating witness tampering by clear and convincing evidence. The Court reasoned that direct evidence of witness tampering is often difficult to obtain, making circumstantial evidence permissible. The Court found a sufficient link between the threats and Cotto, noting that Cotto knew Echevarria from the neighborhood, was out on bail, and had a motive to silence him. The court emphasized that the threats occurred immediately after Echevarria’s identification of Cotto. Regarding the reliability of Echevarria’s statements, the Court found them sufficiently reliable because they were repeated shortly after the event, were lucid and credible, and described the events in detail. The Court noted that the witnesses recounting the statements were subject to cross-examination. The Court declined to review the issue of cross-examination as it was not preserved. The court held that the victim’s statements were properly admitted under the excited utterance exception because the victim was under severe stress from his gunshot wound and was in great pain, preventing him from engaging in reasoned reflection. The court stated, “the relevant time period `is not measured in minutes or seconds’ but rather `is measured by facts’.”

  • People v. Robinson, 89 N.Y.2d 648 (1997): Admissibility of Grand Jury Testimony Under Due Process When Witness is Unavailable

    People v. Robinson, 89 N.Y.2d 648 (1997)

    A defendant’s due process rights may require the admission of a witness’s Grand Jury testimony when that witness is unavailable to testify at trial, the testimony is material and exculpatory, and bears sufficient indicia of reliability, even if such admission is not explicitly authorized by statute.

    Summary

    Robinson was convicted of sexual abuse and misconduct. His defense hinged on the testimony of his then-fiancée, who testified before a grand jury corroborating his version of events. When she became unavailable for trial, Robinson sought to admit her grand jury testimony. The trial court denied the motion, but the Appellate Division reversed, ordering a new trial. The Court of Appeals affirmed, holding that the exclusion of the grand jury testimony violated Robinson’s due process rights because the testimony was material, the witness was unavailable, and the testimony bore sufficient indicia of reliability due to the prosecutor’s probing questioning before the grand jury.

    Facts

    Robinson was accused of sexually abusing the complainant. At trial, the complainant stated that the act was non-consensual. Robinson claimed the sex was consensual and occurred in the presence of his then-fiancée (later his wife). Before the grand jury, Robinson’s fiancée corroborated his account. The grand jury indicted Robinson on some charges, but not on first-degree rape. Prior to trial, Robinson’s wife left the jurisdiction and refused to return to testify despite a court order.

    Procedural History

    The Monroe County Court denied Robinson’s motion to admit his wife’s grand jury testimony. Robinson waived his right to a jury trial and was convicted by the bench. The Appellate Division reversed the conviction and ordered a new trial, finding that the grand jury testimony was sufficiently reliable and material. The People appealed to the Court of Appeals, which affirmed the Appellate Division’s order.

    Issue(s)

    Whether a defendant’s constitutional right to due process requires the admission of hearsay evidence consisting of Grand Jury testimony when the declarant has become unavailable to testify at trial, and the testimony is material, exculpatory, and possesses sufficient indicia of reliability.

    Holding

    Yes, because under the circumstances of this case, where the hearsay testimony is material, exculpatory and has sufficient indicia of reliability, the trial court’s failure to admit such evidence was reversible error.

    Court’s Reasoning

    The Court acknowledged that CPL 670.10 does not explicitly authorize the admission of grand jury testimony at trial. However, it recognized that a defendant’s right to present a defense is a fundamental element of due process. Citing Chambers v. Mississippi, 410 U.S. 284 (1973), the court emphasized the importance of allowing a defendant to present witnesses in their own defense. The Court found that the testimony was material because the declarant was the only other person with firsthand knowledge of the events. The witness was deemed unavailable despite Robinson’s due diligence. Concerning reliability, the Court noted that while the absence of cross-examination typically impairs the reliability of grand jury testimony, in this case, the prosecutor’s direct examination of the witness served the essential purpose of cross-examination by exploring potential biases and testing the accuracy of her testimony. The Court highlighted that the prosecutor’s questions explored the witness’s relationship with both the complainant and the defendant, and even elicited testimony unfavorable to the defendant. The court found that the prosecutor’s questioning “clearly partook of cross-examination as a matter of form.” Because the erroneous exclusion of the proffered evidence was not harmless beyond a reasonable doubt, the court affirmed the Appellate Division’s order for a new trial. As the Court stated, “[t]he prosecutor explored the long-standing relationship between the witness and the complainant which the complainant corroborated. Similarly, the prosecutor questioned the witness about her relationship with the defendant which revealed any biases which might have affected her credibility.” This demonstrated reliability, allowing the Grand Jury testimony to be admitted.

  • People v. Vasquez, 88 N.Y.2d 561 (1996): Admissibility of 911 Calls as Present Sense Impressions

    88 N.Y.2d 561 (1996)

    For a statement to be admissible under the present sense impression exception to the hearsay rule, it must be made substantially contemporaneously with the event it describes and be corroborated by independent evidence supporting the statement’s content.

    Summary

    This case consolidates three appeals concerning the admissibility of 911 calls as present sense impressions. The New York Court of Appeals clarified the requirements for this hearsay exception, emphasizing contemporaneity and corroboration. In People v. Vasquez, a 911 call reporting a shooting was deemed inadmissible due to lack of corroboration of the caller’s description. In People v. Dalton, the defendant’s 911 call after a shooting was excluded because it wasn’t contemporaneous with the event. In People v. Adkinson, a 911 call reporting a sexual assault was deemed inadmissible. The Court affirmed the lower courts’ decisions, stressing the need for statements to be made during or immediately after the event and supported by independent evidence to ensure reliability.

    Facts

    • People v. Vasquez: An anonymous 911 caller reported a shooting, describing a black man fleeing. A defense witness described the shooter differently.
    • People v. Dalton: The defendant called 911 after shooting the victim, claiming self-defense.
    • People v. Adkinson: A victim’s aunt called 911 after a sexual assault; the victim stated he couldn’t see the attacker’s face, contradicting his later testimony.

    Procedural History

    • People v. Vasquez: The trial court excluded the 911 call; the Appellate Division affirmed the conviction.
    • People v. Dalton: The trial court excluded the 911 call; the Appellate Division affirmed the conviction.
    • People v. Adkinson: The trial court excluded the 911 call; the Appellate Division affirmed the conviction.
    • Each case was appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the 911 call in People v. Vasquez was admissible as a present sense impression.
    2. Whether the 911 call in People v. Dalton was admissible as a present sense impression or an excited utterance.
    3. Whether the 911 call in People v. Adkinson was admissible as a present sense impression.

    Holding

    1. No, because the content of the 911 call was not sufficiently corroborated by independent evidence.
    2. No, because the statement was not contemporaneous with the event, nor was it made under the stress of excitement.
    3. No, because the statement was not contemporaneous with the event.

    Court’s Reasoning

    The Court of Appeals emphasized that the present sense impression exception requires both contemporaneity and corroboration. Contemporaneity means the statement must be made during or immediately after the event, leaving no time for reflection. Corroboration requires independent evidence supporting the substance of the statement. In Vasquez, the 911 call lacked corroboration because the caller’s description of the fleeing man differed from the defense witness’s description of the shooter. In Dalton, the defendant’s call was made after the shooting and his retreat indoors, allowing time for reflection. The court noted, “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.” In Adkinson, the victim’s statement on the 911 call was not contemporaneous with the assault. The Court distinguished present sense impressions from excited utterances, noting that the former relies on contemporaneity and corroboration, while the latter depends on the declarant’s excited state. The Court stated, “‘Excited utterances’ are the product of the declarant’s exposure to a startling or upsetting event that is sufficiently powerful to render the observer’s normal reflective processes inoperative…’Present sense impression’ declarations, in contrast, are descriptions of events made by a person who is perceiving the event as it is unfolding.”

  • People v. Rosario, 78 N.Y.2d 583 (1991): Fellow Officer Rule and Probable Cause Based on Hearsay

    78 N.Y.2d 583 (1991)

    Under the fellow officer rule, an arresting officer can rely on information from a fellow officer to establish probable cause, even if that information is hearsay, provided the sending officer possessed the requisite probable cause.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that the arresting officer had probable cause to arrest the defendant based on the fellow officer rule. The undercover officer’s radio transmission of a “positive observation,” which the arresting officer understood to mean a drug transaction, coupled with a detailed description of the participants, was sufficient to establish probable cause. The court found that the undercover officer’s observation of a drug transaction provided adequate grounds for the arrest, negating the need for the undercover officer to testify at the suppression hearing.

    Facts

    On October 16, 1991, undercover police officer Anthony Romano, a member of the Queens Tactical Narcotics Task Force (TNT), observed defendant Rosario exchanging what appeared to be drugs for money with two individuals. Romano radioed fellow officer Evelyn Cardenales, who was working as his backup, informing her that he had made a “positive observation.” He provided a detailed description of the participants’ clothing, physical characteristics, and location. Cardenales proceeded to the location and arrested Rosario and the other individuals.

    Procedural History

    The defendant was arrested and charged with drug-related offenses. At a suppression hearing, the defendant argued that the police lacked probable cause for the arrest. The trial court denied the motion to suppress. The Appellate Division affirmed the trial court’s decision. The case was appealed to the New York Court of Appeals.

    Issue(s)

    Whether the arresting officer had probable cause to arrest the defendant based on the undercover officer’s radio transmission of a “positive observation” and a detailed description of the participants.

    Holding

    Yes, because under the fellow officer rule, an arresting officer is entitled to act on the strength of a radio bulletin from a fellow officer and to assume its reliability, and the undercover officer’s observation of the drug transaction established probable cause for the arrest.

    Court’s Reasoning

    The Court of Appeals relied on the fellow officer rule, which allows a police officer to act on the strength of a radio bulletin from a fellow officer and to assume its reliability (People v Lypka, 36 NY2d 210, 213). The court also cited People v Petralia, 62 NY2d 47, 52, stating that a court may rely on the hearsay testimony of the arresting officer alone to establish probable cause at a suppression hearing, without needing to produce the undercover officer. The court found that the arresting officer, Cardenales, was justified in relying on Romano’s personal observation of the crime.

    The court addressed the defendant’s argument that the phrase “positive observation” was insufficient to communicate the nature of the conduct observed. However, Cardenales testified that the phrase was commonly used among police officers to indicate an exchange of drugs for money, and she understood it to mean that Romano had personally witnessed such an exchange. The court drew an analogy to People v Maldonado, 86 NY2d 631, where a “positive buy” was deemed sufficient to establish probable cause.

    The court rejected the defendant’s attempt to distinguish the case from Maldonado, arguing that it involved a police officer’s mere observation of a drug transaction, rather than a purchase of narcotics by the undercover officer. The court stated that Romano’s observation of the exchange of drugs for money, standing alone, established probable cause, referencing People v McRay, 51 NY2d 594, 604: “[e]xchange of currency negates all but the most implausible explanations for the transaction, and thus conveys more than sufficient indicia of a drug sale to warrant an arrest.” The Court of Appeals emphasized that an experienced officer’s observation of a drug transaction provides sufficient probable cause for an arrest under the fellow officer rule, supporting effective law enforcement and efficient investigations.

  • People v. Guidice, 83 N.Y.2d 630 (1994): Admissibility of Police Line-Sheets as Business Records

    People v. Guidice, 83 N.Y.2d 630 (1994)

    Line sheets created by police officers during a surveillance operation to track recorded phone conversations are admissible as business records if they are made in the regular course of police business, even if they are also potentially useful for litigation.

    Summary

    The New York Court of Appeals addressed whether line sheets, created by police during a surveillance operation to document intercepted phone conversations, were admissible as business records. The defendant argued the line sheets were created solely for litigation purposes and thus inadmissible. The Court held that the line sheets were admissible because they served an administrative function in the police surveillance operation, were required by court order, maintained an inventory of tapes, and were included in progress reports, making them records made in the ordinary course of police business, regardless of potential litigation use.

    Facts

    Defendants David and Anthony Guidice, along with James Smith, were convicted of assault after an altercation with Tom Meyer at a construction site. The assault occurred after David Guidice called his father, Anthony, for help following a dispute with Meyer. Anthony then contacted Smith to assist David in exacting retribution. As evidence, the prosecution presented tape recordings of intercepted telephone conversations. The conversations were recorded during an unrelated investigation, so the prosecution sought to establish the chain of custody using line sheets prepared by monitoring agents at the time of each conversation. The line sheets contained details such as the master tape number, date, call number, conversation times, and recorder counter numbers.

    Procedural History

    The defendants were convicted of assault in the second degree after a jury trial. The Appellate Division affirmed the judgments of conviction. The defendants appealed to the New York Court of Appeals, arguing that the line sheets were improperly admitted and that venue was improper.

    Issue(s)

    1. Whether line sheets prepared by police officers during a surveillance operation are admissible as business records under CPLR 4518.
    2. Whether venue was properly established in New York County.
    3. Whether the trial court erred in refusing to give a circumstantial evidence charge regarding defendant Anthony Guidice.

    Holding

    1. Yes, because the line sheets were records made in the ordinary course of police business, serving an administrative function beyond potential litigation use.
    2. Yes, because defendant Anthony Guidice formulated the criminal intent to commit assault in New York County.
    3. No, because Anthony Guidice’s statements constituted direct evidence of his involvement in the assault.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s ruling, finding the line sheets admissible as business records under CPLR 4518. The Court reasoned that law enforcement agencies qualify as “businesses” for the purposes of the business records exception to the hearsay rule. The Court relied on People v. Foster, 27 NY2d 47, 52, noting that while the line sheets might foreseeably be used for litigation, that was not their sole purpose. The Court stated that the linesheets served an important administrative function, were required by court order to maintain an inventory of tapes, safeguard them against tampering, and were included in progress reports filed with the judge supervising the wiretap order.

    The court also held that venue was proper in New York County because Anthony Guidice formed the intent to commit the assault there. Citing People v. Ribowsky, 77 NY2d 284, 292, the Court stated that whenever a defendant commits an act in a county sufficient to establish an element of a charged offense, co-defendants may likewise be tried in that county.

    Finally, the Court determined that a circumstantial evidence charge was not required because Anthony Guidice’s statements were direct evidence of his guilt. His statements that he “sent two guys to break [Meyer’s] legs” and that he “put him in the hospital” were acknowledgments that he solicited the attack. The court referenced People v Rumble, 45 NY2d 879, 880, stating that a defendant’s statement is considered direct evidence if it constitutes a relevant admission of guilt.