People v. Spencer, 96 A.D.3d 1552 (N.Y. App. Div. 2012). · Go Syfert
People v. Spencer, 96 A.D.3d 1552 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
18 citation events (18 in the last 25 years) across 2 distinct courts.
Strongest positive: People v. Jacque-Crews (nyappdiv, 2023-02-10)
Top citers, strongest first. 8 distinct citers.
discussed Cited as authority (rule) People v. Jacque-Crews
N.Y. App. Div. · 2023 · confidence medium
People v Almonte , 160 AD3d 594 , 594 [1st Dept 2018], affd 33 NY3d 1083 [2019]; People v Buie , 201 AD2d 156, 158-160 [4th Dept 1994], affd 86 NY2d 501 [1995]), we conclude that any error in admitting the recording was harmless ( see People v Spencer , 96 AD3d 1552, 1553 [4th Dept 2012], lv denied 19 NY3d 1029 [2012], reconsideration denied 20 NY3d 989 [2012]).
discussed Cited as authority (rule) People v. Tirado
N.Y. App. Div. · 2019 · confidence medium
In any event, even assuming, arguendo, that the court erred in admitting the statement in evidence under the excited utterance exception to the hearsay rule, we conclude that such error is harmless ( see People v Hernandez , 28 NY3d 1056, 1058 [2016]; People v Spencer , 96 AD3d 1552, 1553 [4th Dept 2012], lv denied 19 NY3d 1029 [2012], reconsideration denied 20 NY3d 989 [2012]).
discussed Cited as authority (rule) People v. Swift
N.Y. App. Div. · 2018 · confidence medium
Nevertheless, even assuming, arguendo, that the court erred in admitting the communications in evidence under the present sense impression and excited utterance exceptions to the hearsay rule ( cf. People v Jones , 28 NY3d 1037, 1039 [2016]; People v Hernandez , 28 NY3d 1056, 1057 [2016]; People v Brown , 80 NY2d 729, 731-734 [1993]), we conclude that any such error is harmless ( see Hernandez , 28 NY3d at 1058 ; People v Spencer , 96 AD3d 1552, 1553 [4th Dept 2012], lv denied 19 NY3d 1029 [2012], reconsideration denied 20 NY3d 989 [2012]).
discussed Cited as authority (rule) People v. Beasley
N.Y. App. Div. · 2017 · confidence medium
Even assuming, arguendo, that the court improperly admitted those recordings in evidence, we conclude that any such error is harmless inasmuch as the proof of defendant’s guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant had that evidence not been introduced (see People v Spencer, 96 AD3d 1552, 1553 [2012], lv denied 19 NY3d 1029 [2012], reconsideration denied 20 NY3d 989 [2012]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
discussed Cited as authority (rule) People v. Beasley
N.Y. App. Div. · 2017 · confidence medium
Even assuming, arguendo, that the court improperly admitted those recordings in evidence, we conclude that any such error is harmless inasmuch as the proof of defendant’s guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant had that evidence not been introduced (see People v Spencer, 96 AD3d 1552, 1553 [2012], lv denied 19 NY3d 1029 [2012], reconsideration denied 20 NY3d 989 [2012]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
discussed Cited as authority (rule) People v. Mulligan
N.Y. App. Div. · 2014 · confidence medium
Therefore, the witness’s statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim’s identification of defendant as the shooter (see People v Spencer, 96 AD3d 1552, 1553 [2012], lv denied 19 NY3d 1029 [2012], reconsideration denied 20 NY3d 989 [2012]; see generally People v Smith, 22 NY3d 462, 465-467 [2013]).
discussed Cited as authority (rule) People v. Mulligan
N.Y. App. Div. · 2014 · confidence medium
Therefore, the witness’s statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim’s identification of defendant as the shooter (see People v Spencer, 96 AD3d 1552, 1553 [2012], lv denied 19 NY3d 1029 [2012], reconsideration denied 20 NY3d 989 [2012]; see generally People v Smith, 22 NY3d 462, 465-467 [2013]).
discussed Cited "see" People v. Spencer
N.Y. App. Div. · 2020 · signal: see · confidence high
Moreover, we conclude that any error in admitting the challenged items in evidence is harmless inasmuch as the "proof of [defendant's] guilt was overwhelming . . . and . . . there was no significant probability that the jury would have acquitted [*4][him] had the proscribed evidence not been introduced" ( People v Kello , 96 NY2d 740, 744 [2001]; see People v Spencer , 96 AD3d 1552, 1553 [4th Dept 2012], lv denied 19 NY3d 1029 [2012], reconsideration denied 20 NY3d 989 [2012]).
The People of the State of New York
v.
Jabari H. Spencer
Appellate Division of the Supreme Court of the State of New York.
Jun 15, 2012.
96 A.D.3d 1552
Cited by 11 opinions  |  Published

Appeal from a judgment of the Erie County Court (Michael L. D’Amico, J.), rendered September 24, 2010. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him,[*1553] upon a jury verdict, of robbery in the first degree (Penal Law § 160.15 [4]), defendant contends that County Court erred in admitting in evidence the recording of the 911 call made by one of the victims following the robbery. We agree. The 911 recording constitutes hearsay (see People v Buie, 86 NY2d 501, 505 [1995]), and none of the exceptions to the rule against hearsay apply herein. The 911 recording is not admissible under the present sense impression exception because there is nothing in the record establishing that the victim’s “statement describes or explains an event or condition and was ‘made while the [victim] was perceiving the event or condition, or immediately thereafter’ ” (People v Vasquez, 88 NY2d 561, 575 [1996], quoting People v Brown, 80 NY2d 729, 732 [1993]). Specifically, it is not clear when the 911 call was made relative to when the robbery ended. Moreover, the victim’s statements on the 911 recording also included references to other events, i.e., one that occurred at least one day before the robbery and another that occurred a week prior to the robbery. Thus, those statements clearly do not reflect a present sense impression (see id.).

Further, the 911 recording is not admissible as an excited utterance because the victim’s statements clearly indicate that he had time to reflect on what had occurred prior to describing the robbery and who had committed the robbery. “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[,]’ preventing the opportunity for deliberation and fabrication” (People v Carroll, 95 NY2d 375, 385 [2000], quoting Vasquez, 88 NY2d at 574; see People v Edwards, 47 NY2d 493, 496-497 [1979]). Given that the 911 recording constituted hearsay, it was error to admit it in evidence and such admission constituted improper bolstering of the testimony of the victim who made the 911 call (see generally Buie, 86 NY2d at 510; People v McDaniel, 81 NY2d 10, 18 [1993]).

Nevertheless, we conclude that the court’s error in admitting in evidence the 911 recording is harmless because the “proof of [defendant’s] guilt was overwhelming . . . and . . . there was no significant probability that the jury would have acquitted [him] had the proscribed evidence not been introduced” (People v Kello, 96 NY2d 740, 744 [2001]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Two of the three victims of the robbery were acquainted with defendant, and they both recognized him almost immediately as the perpetrator, despite the fact that his face was covered. Moreover, those witnesses were consistent in their respective versions of the facts regard[*1554] ing the robbery and were unequivocal in their identification of defendant as the perpetrator.

The sentence is not unduly harsh or severe. We have reviewed defendant’s remaining contentions and conclude that none requires reversal. Present — Centra, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.