declarant exception in New York

2023"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 on hearsay" ( People v Cummings , 31 NY3d 204, 209 [internal quotation marks omitted]).

2022"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 on hearsay" ( People v Almonte , 33 NY3d 1083, 1084 [internal quotation marks omitted]). "[E]xcited utterances may be admissible because, 'as the impulsive and unreflecting [*2]responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant's belief as to the facts just

2025"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 on hearsay" ( People v Almonte , 33 NY3d 1083, 1084 [2019] [internal quotation marks omitted]; see People v Edwards , 47 NY2d 493, 496-497 [1979]).

2025"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 on hearsay" ( People v Almonte , 33 NY3d 1083, 1084 [2019] [internal quotation marks omitted]; see People v Edwards , 47 NY2d 493, 496-497 [1979]).

2025"The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance" ( Almonte , 33 NY3d at 1084 [internal quotation marks omitted]; see People v Brown , 70 NY2d 513, 518 [1987]).

2025"The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance" ( Almonte , 33 NY3d at 1084 [internal quotation marks omitted]; see People v Brown , 70 NY2d 513, 518 [1987]).

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 ,

2020"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 on hearsay" ( People v Cummings , 31 NY3d 204, 209 , quoting People v Edwards , 47 NY2d 493, 496-497 ). "[E]xcited utterances may be admissible because, 'as the impulsive and unreflecting responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant's belief as to t

2025"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 on hearsay" ( People v Almonte , 33 NY3d 1083, 1084 [2019] [internal quotation marks omitted]; see People v Edwards , 47 NY2d 493, 496-497 [1979]).

2025"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 on hearsay" ( People v Almonte , 33 NY3d 1083, 1084 [2019] [internal quotation marks omitted]; see People v Edwards , 47 NY2d 493, 496-497 [1979]).

2019"The test is whether the utterance was made 'before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance' " ( People v. Brown, 70 N.Y.2d 513 , 517, 522 N.Y.S.2d 837 , 517 N.E.2d 515 [1987], quoting People v. Marks, 6 N.Y.2d 67 , 72, 188 N.Y.S.2d 465 , 160 N.E.2d 26 [1959] ; see also People v. Nieves, 67 N.Y.2d 125 , 135, 501 N.Y.S.2d 1 , 492 N.E.2d 109 [1986] ).

2019"The test is whether the utterance was made 'before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance' " ( People v. Brown, 70 N.Y.2d 513 , 517, 522 N.Y.S.2d 837 , 517 N.E.2d 515 [1987], quoting People v. Marks, 6 N.Y.2d 67 , 72, 188 N.Y.S.2d 465 , 160 N.E.2d 26 [1959] ; see also People v. Nieves, 67 N.Y.2d 125 , 135, 501 N.Y.S.2d 1 , 492 N.E.2d 109 [1986] ).

2022Contrary to the People's contention, the defendant's challenge to the admission of this testimony under the excited utterance exception is preserved for appellate review. "'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 on hearsay'" ( People v Morris , 189 AD3d 1077, 1079 , quoting People v Cummings , 31 NY3d 204, 209 [internal quotation marks omitted]; see People v Edwards , 47 NY2d 493, 498 ).

2022"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 on hearsay" ( People v Almonte , 33 NY3d 1083, 1084 [internal quotation marks omitted]). "[E]xcited utterances may be admissible because, 'as the impulsive and unreflecting [*2]responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant's belief as to the facts just

2019"The test is whether the utterance was made 'before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance' " ( People v. Brown, 70 N.Y.2d 513 , 517, 522 N.Y.S.2d 837 , 517 N.E.2d 515 [1987], quoting People v. Marks, 6 N.Y.2d 67 , 72, 188 N.Y.S.2d 465 , 160 N.E.2d 26 [1959] ; see also People v. Nieves, 67 N.Y.2d 125 , 135, 501 N.Y.S.2d 1 , 492 N.E.2d 109 [1986] ).

2019"The test is whether the utterance was made 'before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance' " ( People v. Brown, 70 N.Y.2d 513 , 517, 522 N.Y.S.2d 837 , 517 N.E.2d 515 [1987], quoting People v. Marks, 6 N.Y.2d 67 , 72, 188 N.Y.S.2d 465 , 160 N.E.2d 26 [1959] ; see also People v. Nieves, 67 N.Y.2d 125 , 135, 501 N.Y.S.2d 1 , 492 N.E.2d 109 [1986] ).

2023"Although the statement of a nonparticipant to the event described may be admitted as an excited utterance, it must be inferable that [such] declarant had an opportunity to observe personally the event described in the [spontaneous] declaration" ( People v Samuel , 208 AD3d 1261, 1262-1263 [internal quotation marks omitted]; see People v Thelismond , 180 AD3d 1076, 1078 ).

2022"Present sense impression declarations . . . are descriptions of events made by a person who is perceiving the event as it is unfolding" ( People v Portious , 201 AD3d 820, 821 [internal quotation marks omitted]).

2021After the hearing, the Supreme Court granted the People's motion, holding that the statements "fit[ ] into" the permissive definition of "excited utterance." "'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 on hearsay'" ( People v Morris , 189 AD3d 1077, 1079 , quoting People v Cummings , 31 NY3d 204, 209 [internal quotation marks omitted]; see People v Edwards , 47 NY2d 493, 498 ). "[T]here can be no definite or fixed pe

2021"The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the [*3]reflective powers to be yet in abeyance" ( id. at 306 , quoting People v Brown , 70 NY2d 513, 518 ).

2020"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 on hearsay" ( People v Cummings , 31 NY3d 204, 209 , quoting People v Edwards , 47 NY2d 493, 496-497 ). "[E]xcited utterances may be admissible because, 'as the impulsive and unreflecting responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant's belief as to t

2019The determination of admissibility of a statement as an excited utterance is entrusted in the first instance to the trial court, which "must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth" ( People v Edwards , 47 NY2d at 497 ; see People v Cotto , 92 NY2d 68, 79 ; People v Simpson , 238 AD2d 611, 612 ).