sense impression exception in New York

2024Further, the victim's statement to her friend that the defendant had "just" broken her cell phone was properly admitted under the present sense impression exception to the hearsay rule ( see People v Brown , 80 NY2d 729, 732-733 ; People v Porter , 210 AD3d 1012, 1014 ).

2022Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in admitting into evidence recordings of two 911 calls made from the apartment where the shooting occurred under the present sense impression exception to the prohibition against the admission of hearsay ( see People v Brown , 80 NY2d 729, 732 ; People v Portious , 201 AD3d 820, 821 ).

2023The statements did not qualify under the present sense impression exception to the prohibition against the admission of hearsay because the People did not satisfy the element of contemporaneity ( see People v Vasquez , 88 NY2d 561, 575 ; People v Ortiz , 33 AD3d 1044, 1045 ).

2023During the call, the complainant told the 911 operator "I need the police here, I'm shaking, I'm scared." An objection to the admission of the 911 call would not have been meritorious, because the call was properly admitted "under the excited utterance exception to the hearsay rule inasmuch as the statements were made while [the complainant] was under the extraordinary stress of" the situation, as well as "under the present sense impression exception . . . because [the call] [was] made while the declarant was perceiving 'the event as it [was] unfolding' " ( People v Jones , 66 AD3d 1442 , 1443

2025Moreover, the County Court properly admitted into evidence the audiotapes of a telephone call to the 911 emergency number under the present sense impression exception to the hearsay rule, as the caller's comments indicated that she was observing the subject crimes as they occurred ( see People v Buie , 86 NY2d 501, 506 ; People v Williams , 208 AD3d 1263, 1265 ; People v McCall , 80 AD3d 626, 627 ).

2022Moreover, the Supreme Court properly admitted into evidence the audiotapes of 911 emergency calls under the present sense impression exception to the hearsay rule as the callers' comments indicated that they were observing the subject crimes as they occurred ( see People v Buie , 86 NY2d 501, 506 ; People v McCall , 80 AD3d 626, 627 ).

2022The present sense impression exception to the hearsay rule applies to statements that are “(1) made by a person perceiving the event as it is unfolding or immediately afterward” and “(2) corroborated by independent evidence establishing the reliability of the contents of the statement” (People v Cantave, 21 NY3d 374, 382 [2013]). “[D]escriptions of events made by a person who is perceiving the event as it is unfolding” are “deemed reliable . . . because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty m

2018The present sense impression exception is also inapplicable, since the out-of-court statement from plaintiff to the foreman that he fell while climbing up the scaffold is not corroborated by independent evidence ( see People v Cantave , 21 NY3d 374, 382 [2013]).

2016The victim was clearly describing events unfolding before her ( see People v Vasquez , 88 NY2d 561, 575-577 [1996]): in the first call, the victim stated that defendant was in front of the victim's window "right now" making threats against her; in the second call, the victim stated that defendant was "banging on [the victim's] front door." The calls were sufficiently corroborated by the testimony at trial of the victim ( see People v Buie, 86 NY2d at 512 ), "giving the defendant the opportunity to verify and test the statements' trustworthiness as an added assurance of reliability" ( People v

2016As an alternative holding, we find that there was no “corroboration problem, since the declarant[ ] testified in court” (People v Robinson, 282 AD2d 75, 82 [1st Dept 2001]).

2012People v Vasquez, 88 NY2d 561 [1996]; cf. People v York, 304 AD2d 681 [2003]; People v Melendez, 296 AD2d 424, 424-425 [2002]; People v Smith, 267 AD2d 407, 408 [1999]).

2012The time delay between the occurrence of the events and the call was not sufficient to destroy the indicia of reliability upon which this hearsay exception rests (see People v Vasquez, 88 NY2d 561 [1996]; People v York, 304 AD2d 681 [2003]; People v Smith, 267 AD2d 407, 408 [1999]).

2018We agree with the County Court's determination to admit into evidence, under the present sense impression exception to the hearsay rule, a recording of a 911 call made by a witness for the purpose of reporting the subject stabbing ( see People v Brown, 80 NY2d 729, 734 ; People v Bowers, 144 AD3d 1049 ; People v Ross, 112 AD3d 972 ).

2016In addition, some of those calls, and the remaining calls, were made by people who described events that were occurring, and the description of the events given by the prosecution witnesses provided the “additional indicia of reliability” that rendered them admissible under the present sense impression exception (People v Brown, 80 NY2d 729, 736 [1993]; see People v Ross, 112 AD3d 972 , 973 [2013], lv denied 22 NY3d 1158 [2014]; cf. People v Mulligan, 118 AD3d 1372 , 1373 [2014], lv denied 25 NY3d 1075 [2015]).

2014Thus, the recordings were admissible pursuant to the present sense impression exception to the hearsay rule (see People v Buie, 86 NY2d 501, 511 [1995]; People v Foster, 52 AD3d 957, 961 [2008], lv denied 11 NY3d 788 [2008]), as well as the excited utterance exception (see People v Barnes, 64 AD3d 890, 892 [2009], lv denied 13 NY3d 858 [2009]; People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624 [2003]).

2014Thus, the recordings were admissible pursuant to the present sense impression exception to the hearsay rule (see People v Buie, 86 NY2d 501, 511 [1995]; People v Foster, 52 AD3d 957, 961 [2008], lv denied 11 NY3d 788 [2008]), as well as the excited utterance exception (see People v Barnes, 64 AD3d 890, 892 [2009], lv denied 13 NY3d 858 [2009]; People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624 [2003]).

2014Thus, the recordings were admissible pursuant to the present sense impression exception to the hearsay rule (see People v Buie, 86 NY2d 501, 511 [1995]; People v Foster, 52 AD3d 957, 961 [2008], lv denied 11 NY3d 788 [2008]), as well as the excited utterance exception (see People v Barnes, 64 AD3d 890, 892 [2009], lv denied 13 NY3d 858 [2009]; People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624 [2003]).

2014Thus, the recordings were admissible pursuant to the present sense impression exception to the hearsay rule (see People v Buie, 86 NY2d 501, 511 [1995]; People v Foster, 52 AD3d 957, 961 [2008], lv denied 11 NY3d 788 [2008]), as well as the excited utterance exception (see People v Barnes, 64 AD3d 890, 892 [2009], lv denied 13 NY3d 858 [2009]; People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624 [2003]).

2022Nevertheless, the error in admitting the 911 call from the neighbor was harmless in light of the overwhelming evidence of the defendant's guilt without reference to the error, and the absence of any significant probability that the error might have contributed to the defendant's convictions ( see People v Crimmins , 36 NY2d 230 ; People v Leach , 137 AD3d 1300, 1301 ).

2012However, the error in admitting the 911 tapes into evidence was harmless, as there was overwhelming evidence of the defendant’s guilt and no significant probability that the jury would have acquitted the defendant were it not for the error (see People v Kello, 96 NY2d 740, 743-744 [2001]; People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Ortiz, 33 AD3d 1044, 1045 [2006]).

2012However, the error in admitting the 911 tapes into evidence was harmless, as there was overwhelming evidence of the defendant’s guilt and no significant probability that the jury would have acquitted the defendant were it not for the error (see People v Kello, 96 NY2d 740, 743-744 [2001]; People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Ortiz, 33 AD3d 1044, 1045 [2006]).

2001This Court need not reach the question of whether the present sense impression exception is a “firmly rooted hearsay exception,” since there were “particularized guarantees of trustworthiness” drawn from the circumstances of the making of the statement (Ohio v Roberts, 448 US 56, 66 ; People v Kello, 96 NY2d 740, 743-744 ).

2026Admission of these statements, which were not "'procured with a primary purpose of creating an out-of-court substitute for trial testimony'" (<i>People v Pealer</i>, 20 NY3d 447, 453 [2013], <i>cert denied</i> 571 US 846 [2013], quoting <i>Michigan v Bryant</i>, 562 US 344, 358 [2011]) did not violate defendant's rights under the Confrontation Clause (<i>see Crawford v Washington</i>, 541 US 36, 53-54 [2004]).</p> <p>The court also did not err in ruling that defendant voluntarily waived his right to trial by a jury of 12 and granting his request to proceed with a jury of 11, where defendant si

2023Nevertheless, contrary to the defendant's contention, the admission of the recording of the 911 call did not violate the defendant's right of confrontation because the declarant's [*2]statements were not testimonial ( see Crawford v Washington , 541 US 36 ; People v Bradley, 8 NY3d 124, 126 ).

2023The statements did not qualify under the present sense impression exception to the prohibition against the admission of hearsay because the People did not satisfy the element of contemporaneity ( see People v Vasquez , 88 NY2d 561, 575 ; People v Ortiz , 33 AD3d 1044, 1045 ).

2019Nevertheless, defendant is correct that reversal is required in light of the erroneous admission into evidence, under the present sense impression exception to the hearsay rule, of a recording of a 911 call, as the call had been made about one hour after the incident, during which time the caller, among other things, filled out a report and related the incident to another party who suggested the caller make the 911 call ( see People v Matyszewski , 47 AD3d 646, 646 [2008]; People v Ortiz , 33 AD3d 1044 [2006]).

2021Here, the record establishes that the anonymous caller "described the entire course of events to the operator using the past tense, indicating that he was recalling and describing events that he observed in the recent past, rather than as [they were] occurring," and the defendant "failed to demonstrate that the delay between the conclusion of the event and the beginning of the call was not sufficient to destroy the indicia of reliability upon which the present sense impression exception rests" ( People v Parchment , 92 AD3d 699, 699 ).

2020Likewise, the declarations of the 911 caller were not admissible under the present sense impression exception to the hearsay rule since the [*3]defendant did not satisfy the element of contemporaneity ( see People v Thelismond , 180 AD3d at 1078 ; People v Casiano , 148 AD3d at 1046 ; People v Parchment , 92 AD3d 699, 699 ).

2024Moreover, the admission of the recording of the 911 call did not violate defendant's right of confrontation because the declarant's statements were not testimonial ( see Davis v Washington , 547 US 813, 822 [2006]; People v Rawlins , 10 NY3d 136 , 149 n 7 [2008]; People v Clay , 88 AD3d 14, 18 [2011]).

2022Further, the court did not violate the defendant's Sixth Amendment right to confrontation at trial by admitting into evidence the recorded 911 calls, in which nontestifying complainants sought help in an ongoing emergency situation ( see Davis v Washington , 547 US 813, 821-829 ; People v Phillips , 68 AD3d 1137, 1139 ).

2018The recording was admissible under the present sense impression exception to the hearsay rule ( see People v Buie , 86 NY2d 501, 506 ; People v Pooler , 98 AD3d 751, 752 ; People v Bradley , 73 AD3d 1198 ; People v Osbourne , 69 AD3d 764, 765 ).

2012Furthermore, the recording of the complainant’s call to the 911 emergency number was properly admitted into evidence under the present sense impression exception to the hearsay rule, since it contained the caller’s statements concerning his observations of the defendant, made contemporaneously with those observations (see People v Buie, 86 NY2d 501, 508 [1995]; People v Bradley, 73 AD3d 1198, 1198 [2010]; People v Carr, 277 AD2d 246 [2000]).

2022However, the Supreme Court erred in admitting into evidence a recording of a 911 call from a neighbor that was made after the shooting under either the present sense impression or excited utterance exceptions to the prohibition against the admission of hearsay. "'A spontaneous declaration or excited utterance—made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant is an exception to the prohibition against the admission of hearsay'" ( People v Thelismond , 180 AD3d 1076, 1077-1078 , quoting People v Cummings ,

2022Although the statement of a non-participant to the event described may be admitted as an excited utterance, "it must be inferable that the declarant had an opportunity to observe personally the event described in the declaration" ( People v Fratello , 92 NY2d 565, 571 ; see People v Cummings , 31 NY3d 204, 209 ; People v Thelismond , 180 AD3d 1076, 1078 ).

1992Defendant contends that Criminal Term erroneously admitted into evidence the "911” tape recording of the two telephone messages, upon the basis that said recording constituted a present sense impression exception to the hearsay rule (People v Luke, 136 Misc 2d 733 [1987], affd 147 AD2d 990 [1st Dept 1989]).

1989CONCLUSIONS OF LAW The tape was properly received into evidence as a present sense impression exception to the hearsay rule, as provided for in the common-law rule articulated in McCormick on Evidence (3d ed 1984); as also cited in People v Luke ( 136 Misc 2d 733 [1987], affd 147 AD2d 990 [1st Dept 1989]); and as set forth in Federal Rules of Evidence, rule 803 (1) and Proposed NY Code of Evidence § 803 (1) (1980).

2022Further, the statements of the neighbor did not qualify under the present sense impression exception to the prohibition against the admission of hearsay, since the neighbor was not describing events that she personally perceived as the events were unfolding ( see People v Thelismond , 180 AD3d at 1078).

2022Further, the statements of the 911 caller did not qualify under the present sense impression exception, since the caller, who did not witness the stabbing, was not describing the stabbing as he personally perceived it, but was instead describing an impression he formed based on events occurring after the stabbing ( see People v Thelismond , 180 AD3d at 1078 ).

2019Nevertheless, defendant is correct that reversal is required in light of the erroneous admission into evidence, under the present sense impression exception to the hearsay rule, of a recording of a 911 call, as the call had been made about one hour after the incident, during which time the caller, among other things, filled out a report and related the incident to another party who suggested the caller make the 911 call ( see People v Matyszewski , 47 AD3d 646, 646 [2008]; People v Ortiz , 33 AD3d 1044 [2006]).

2017The 911 call did not qualify as a present sense impression because the element of contemporaneity was not satisfied (see People v Vasquez, 88 NY2d 561, 575 [1996]; People v Parchment, 92 AD3d 699 [2012]), and the People failed to demonstrate that the delay between the conclusion of the event and the beginning of the call was not sufficient to destroy the indicia of reliability upon which the present sense impression exception rests (see People v Parchment, 92 AD3d at 699; People v Matyszewski, 47 AD3d 646 [2008]).

1993See People v. Watson, 100 A.D.2d 452 , 474 N.Y.S.2d 978 (2d Dept 1984); People v. Luke, 136 Misc. 2d 733 , 519 N.Y.S.2d 316 (Sup. Ct., Bx.

1993New York traditionally did not recognize the present sense impression exception to the hearsay rule (see, Richardson, Evidence § 285-A [Prince 10th ed, Cumulative Supp]; People v Watson, 100 AD2d 452 [2d Dept 1984]).

1993To be sure, some textual versions of the present sense impression exception rule require no corroboration at all (see, e.g., Fed Rules Evid, rule 803 [1]; Proposed NY Code of Evidence § 804 [b] [1] [1982] ; Model Code of Evidence, rule 512 [a] [1942]; State v Flesher, 286 NW2d 215, 218 [Iowa 1979] [holding that corroboration, or the lack of it, will affect the weight given to the declaration but not its admissibility]).

1984However, three Justices held in a separate concurring opinion that the mother’s testimony was admissible solely under the “ ‘excited utterance’ ” exception to the hearsay rule and should not have been admitted on the basis of an “inapplicable exception”, i.e., the present sense impression exception (Commonwealth v Coleman, supra, p 123). 10 Finally, in State v Flesher ( 286 NW2d 215 [Iowa]), the decedent’s paramour testified that he had a conversation with the decedent shortly before her murder.

2024The recording of the entire 911 call was properly admitted into evidence under the present sense impression exception to the hearsay rule, and the probative value of this evidence outweighed any prejudicial effect ( see People v Deverow , 38 NY3d 157 , 165-166 [2022]; People v Porter , 210 AD3d 1012, 1014 [2022]; People v Chin , 148 AD3d 925 , 925 [2017]; People v Gil , 64 Misc 3d 135[A] , 2019 NY Slip Op 51113[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Coveney , 43 Misc 3d 140[A] , 2014 NY Slip Op 50810[U] [App Term, 2d [*3]Dept, 9th & 10th Jud Dists 2014]; People v Long

2024Further, the victim's statement to her friend that the defendant had "just" broken her cell phone was properly admitted under the present sense impression exception to the hearsay rule ( see People v Brown , 80 NY2d 729, 732-733 ; People v Porter , 210 AD3d 1012, 1014 ).

2023Further, the People did not establish that the complainant's capacity for reflection and deliberation remained stilled by the time she spoke to the police officer, and, thus, her statements did not qualify under the excited utterance exception to the prohibition against the admission of hearsay ( see People v Johnson , 1 NY3d 302, 307 ).

2018The excited utterance exception does not apply, since defendants have not provided sufficient evidence of plaintiff's mental state or established that he made the hearsay statement to the foreman under the stress of excitement ( see People v Johnson , 1 NY3d 302, 306 [2003]; cf. Heer v North Moore St.