People v King

[*1] People v King 2005 NY Slip Op 50803(U) Decided on May 31, 2005 Supreme Court, Bronx County Lieb, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 31, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK

against

Liquey King, Defendant.



60362C-2004

Judith Lieb, J.

The defendant is charged with Attempted Assault in the Third Degree and Harassment in the Second Degree. Prior to trial, the People advised the Court that they were not calling the complainant as a witness, but that they were seeking to introduce a tape recording of statements made by the complainant during a 911 call as well as testimony from a police officer who responded to the call concerning her statements at the scene to that officer (together, the "complainant's statements").

The defendant has moved in limine to preclude the complainant's statements. The defendant argues that the complainant's statements are inadmissible as they are hearsay and do not fit within any exception to the hearsay rules. The defendant further contends that pursuant to the United States Supreme Court's ruling in Crawford v. Washington, 541 U.S. 36 (2004), the admission of the complainant's statements at trial would violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. For the reasons set forth below, the defendant's motion to preclude is denied.

FINDINGS OF FACT

This Court conducted an evidentiary hearing to determine the circumstances of the complainant's statements. At the hearing, the People played a tape recording of a 911 call placed by the complainant. The tape recording contained the following: Operator: Police Operator 1214, what is the emergency? Caller on the line, you've reached 911, you need the police? Hello?Caller: Help, I'm at 299 Walton Avenue.[*2]Operator: 299 Walton Avenue in the Bronx?Caller: Yes, Apartment 33. 1-6-6 and Walton . . . my baby's father just beat me up.Operator: Apartment 33? What floor is it on?Caller: Huh?Operator: What floor is it on . . . 33?Caller: Third.Operator: The third floor?Caller: Yes.Operator: Any weapons involved?Caller: (Scream) . . Call the police, the third floor.Operator: Hello, hello, ma'am?

The call was then abruptly terminated. At times during the call, the complainant sounded out of breath. Further, after she screamed, her voice was frantic.

The People also presented at the hearing the testimony of Officer Edward Cantaloupe of the 44th Precinct. This Court credits the testimony of Officer Cantaloupe in full and makes the following findings of fact in accordance with his testimony.

At 9:00 p.m., Officer Cantaloupe received a 911 call of a family dispute. Officer Cantaloupe and his partner arrived at 299 Walton Avenue two to three minutes later; they were the first officers to arrive at the scene. The officers knocked on the apartment door and the defendant opened it partially. The officers asked the defendant what was "going on" and the defendant replied that he "got into an argument with his girlfriend." Officer Cantaloupe asked if his girlfriend was still in the apartment and the defendant replied that she was. Officer Cantaloupe instructed the defendant to ask her to come into the hallway.

When the complainant entered the hallway, Officer Cantaloupe observed that she had "a lot of blood coming from her ear." Officer Cantaloupe further observed some swelling to her face, as well as dried teardrops, which indicated to the officer that she had been crying. The complainant appeared nervous. In order to determine what was "going on," the officer asked her how she had received her injuries and what she and the defendant had been arguing about. The complainant replied that she and her boyfriend had argued because he thought that she was having sex with someone else and he had smacked her in the face. The officer asked the complainant what her relationship was with the defendant and she said that they had a child in common. The entire conversation took about four minutes.

On cross-examination, the officer testified that he interviewed the complainant in [*3]order to investigate what led to the 911 call and to determine if he should make an arrest. He also testified that the information would be included in police reports and would be used at trial.

After the conversation with the complainant, Officer Cantaloupe entered the apartment and placed the defendant under arrest.

CONCLUSIONS OF LAW

A. Excited Utterances

The People argue that the complainant's statements are excited utterances. It is well settled under the common law that excited utterances are admissible at trial as exceptions to the hearsay rule. A statement qualifies as an excited utterance when it is made contemporaneously with or immediately after a startling event and at a time when the declarant was "so influenced by the excitement and shock of the event that it [was] probable that he or she spoke impulsively and without reflection, rather than reflectively and with deliberation." People v. Caviness, 38 NY2d 227, 231 (1975); see also People v. Edwards, 47 NY2d 493, 497 (1979).

Among the factors to be considered by a trial court in determining whether a statement qualifies as an excited utterance is the period of time between the startling event and the out-of-court statement. There is no definite or fixed period of time within which the declaration must have been made, and each case must depend upon its own circumstances. People v. Johnson, 1 NY3d 302, 306 (2003). The test as to whether a statement is an excited utterance is "whether the statement 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." Id. (quoting People v. Brown, 70 NY2d 513, 518 (1987)). Ultimately, "the time for reflection is not measured in minutes or seconds, but rather is measured by facts." People v. Johnson, 1 NY3d at 306 (quoting People v. Vasquez, 88 NY2d 561 (1996)). Nor does the fact that statements are made in response to police questioning, "standing alone any more than do other specific circumstances defeat the admissibility of the responses as excited utterances." People v. Johnson, 1 NY3d at 306-307 (quoting People v. Brown, 70 NY2d at 522)).

Applying this analysis to the instant case, the complainant's statements to the 911 operator and to Officer Cantaloupe, who arrived on the scene in response to that call, are admissible as excited utterances. With regard to the 911 call, the complainant was under the influence of the startling event when she told the 911 operator that her baby's father had just beaten her up. As she spoke with the operator, she sounded out of breath. In addition, the complainant's scream, her frantic cry for the police, and her sudden termination of the call while the 911 operator remained on the line, suggest that even as she made the call, events were continuing to unfold around her. As a result, she did not have time to reflect while she was speaking.

With regard to the statements made in person to Officer Cantaloupe at 299 Walton Avenue, the circumstances show that the complainant was still under the influence of the startling event. Officer Cantaloupe and his partner arrived at the apartment within two to three minutes of receiving the radio call. The complainant's scream at the end of the 911 call and the [*4]fact that she was unable to finish the conversation indicate a continuing assault. In addition, the defendant's reluctance to open the door fully suggests that there was an ongoing problem. Further, although the complainant had called 911, she stepped into the hallway only after the officer asked the defendant to have her do so. Her hesitation indicates that she was afraid. Indeed, Officer Cantaloupe's first impression of the complainant was that she was nervous. He also noticed that her face was swollen, was marked from dried tears, and she was bleeding profusely from her ear, as if her injury had only recently occurred. Thus, when the officer asked her general questions to determine what her immediate situation was and how her injuries had occurred, she was not in a position to reflect on her answers or to contemplate just how her answer would be used. As a result, her response to Officer Cantaloupe's brief and general inquiry was admissible as an excited utterance.

B. Confrontation Clause

Although the complainant's statements are admissible under a common-law exception to the hearsay rule, in its landmark decision, Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court of the United States held that the statements of an unavailable witness are not admissible at a criminal trial to prove the matter asserted, if such statements are testimonial and the defendant did not have a prior opportunity to cross-examine the witness. By contrast, if a witness does not testify at trial and the statement is not testimonial, the statement is admissible regardless of the defendant's prior opportunity to cross-examine the witness if the statement falls within a hearsay exception recognized by state law. Crawford, supra, 541 U.S. at 68. As noted above, the complainant in this case will not be called as a witness for the prosecution. In addition, the defendant has not had a prior opportunity to cross-examine the witness. Thus, the issue of whether her statements are admissible turns on the question of whether they are testimonial.

The Crawford Court declined to define the term, "testimonial." Id. at 68, n.10. However, the Supreme Court noted that "the constitutional text, like the history underlying the common-law right of confrontation," reflected "an especially acute concern with a specific type of out-of court statement." The Court described three categories of the "core class of testimonial statements." Id. at 51-52. Testimonial statements in the first category consist of "ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. at 51. Testimonial statements in the second category consist of "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Id. at 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992)). Finally, the third group of statements that the Court categorized as testimonial were those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52. The Court noted that, "whatever else the term [testimonial] covers, it applies . . . to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations. These are the modern abuses at which the Confrontation Clause was directed." Id. at 68. While the Court declined to define the term, "interrogation," it noted that a recorded statement made in response to structured police questioning as was at issue in Crawford qualified under any conceivable definition. Id. at [*5]53, n.4.

In People v. Coleman, 791 N.Y.S.2d 112, 2005 NY App. Div. LEXIS 3009 (1st Dept. March 22, 2005), which is discussed further below, the Supreme Court, Appellate Division, First Department, underscored that "Crawford repeatedly stresses the element of formality and reiterates that the Confrontation Clause was primarily directed at evidence bearing a resemblance to depositions and affidavits, even if unsworn." In light of that conclusion, the Coleman Court stated, "we find little support in Crawford for the argument that virtually any report of criminal activity, knowingly made to the authorities should be viewed as testimonial." In People v. Watson, 5 Misc 3d 1013A, 2004 NY Misc. LEXIS 2133 (NY Co. Sup. Ct. 2004), the Court listed several factors that courts have considered in determining whether a statement made to a government official is testimonial under Crawford. Those factors include whether the statement was the result of formal interrogation by the official, whether it was the government or the civilian witness who initiated the circumstances under which the statement was made, whether the statements were made with an investigatory or prosecutorial purpose, and whether the declarant was aware that his or her statement may later be used at trial. Watson, 2004 NY Misc. LEXIS 2133 at **34, n9.

Applying these standards, the complainant's statements to the 911 operator in this case do not qualify as testimonial under Crawford. They were not ex parte in-court testimony or its equivalent; they were not contained in formalized documents such as affidavits, depositions, or prior testimony transcripts. Nor were they the result of a confession that stemmed from custodial interrogation. Rather, the complainant's initial statements were made in the context of a 911 call in which the caller was seeking help.

In People v. Coleman, 791 N.Y.S.2d 112, 2005 NY App. Div. LEXIS 3009, supra, the Supreme Court, Appellate Division, First Department, held that a trial court had properly admitted a tape recording of a 911 call during which the caller described an attack in progress. The operator asked for and received a description of the assailant. The operator otherwise asked questions that requested that the caller repeat information that he had already volunteered. In concluding that admission of the tape did not violate the Confrontation Clause, the Court found that the purpose of the call was to seek police intervention in an urgent situation. 2005 NY App. Div. LEXIS 3009 at *3. In addition, the Court found that the statements were not the result of structured questioning, and noted that there was no indication that the 911 operator was following a protocol for obtaining information. Id. Finally, the Court held that the response to a question designed to help the police arrest an assailant in an emergency situation is not testimonial, and therefore the response to the 911 operator's request for a description was not testimonial. Id. In this case, as in Coleman, the caller made a request seeking police intervention in an urgent situation. Indeed, the urgency of the request is demonstrated by the caller's scream and sudden termination of the call.

Similarly, in People v. Moscat, 3 Misc 3d 739 (Crim. Ct. Bronx Co. 2004), which was cited with approval in Coleman, the Court determined that the victim's 911 call was admissible as an excited utterance and concluded that 911 calls were generally not testimonial. The Court found that such statements were not initiated by the police, but were made by persons seeking some sort of immediate assistance. In addition, the Court found that such statements could not be analogized to the statements taken in the 16th and 17th century by English [*6]magistrates conducting pre-trial examinations. Finally, the Court concluded that, for the most part, a person making a 911 call was not contemplating that he or she would be a witness at any resulting proceeding, and that often a person calling 911 was not contemplating appearing as a witness in a future legal proceeding, but was "usually trying simply to save her own life." Id. at 746. See also People v. Conyers, 4 Misc 3d 346, 350 (Sup. Ct. Queens Co. 2004) (two 911 calls were not testimonial and were admissible as excited utterances where the witness's intention was to stop an assault in progress); People v. Isaac, 4 Misc 3d 1001A, 2004 NY LEXIS 50582U, **11-12 (Dist. Ct. Nassau Co. 2004) (911 calls that qualify as excited utterances are not testimonial in nature).

The defendant relies on People v. Cortes, 4 Misc 3d 575 (Sup. Ct. Bronx Co. 2004), in which a trial court, upon concluding that the evidence would violate the confrontation clause, precluded the prosecution from introducing a tape recording of a 911 call when the caller was unavailable to testify. During the call, an unidentified caller reported that a man was shooting another person. In response, the 911 operator asked the caller about the shooter's description, location, and direction of movement. Significantly, the Court concluded that the transcript demonstrated that "the information was elicited in a particular way and order and that the operator was asking questions in the accepted pattern." In Coleman, the Appellate Division specifically distinguished the facts before it from those present in Cortes, concluding that in Coleman there was no indication that the operator had followed a specific protocol. The facts before this Court are more akin to those in Coleman than those in Cortes. In this case, the operator merely asked for the caller's address and if any weapons were involved. These questions would facilitate the response of police officers who are called upon to secure a potentially dangerous situation, and are not the kind of formal structured questions that Crawford intended to classify as eliciting testimonial statements.

The defendant also relies on People v. Dobbin, 2004 NY Misc. LEXIS 2848, **7-8 (Sup. Ct. NY Co. 2004). The facts in Dobbin are likewise distinguishable from those present here. In Dobbin, a 911 call was placed by a witness to a robbery, who stated that the robber had just left the scene. According to the Dobbin Court, the caller was advising the relevant governmental agency of the fact that a crime had occurred. As such, the Court reasoned, the witness would reasonably believe that the statement would be available for later use at trial, and therefore would be testimonial. In this case, by contrast, by dialing 911, the victim of an alleged crime was reaching out for assistance from the police during the course of an ongoing violent incident. Thus, statements by the caller would not be testimonial. Moreover, in Dobbin, the police operator asked the witness approximately 15 questions during the call, leading the court to conclude that the operator was engaging in "structured questioning." By contrast, as discussed above, the operator in this case merely asked the caller about her location and whether weapons were involved. These questions are not the kind of structured questioning the Crawford Court would consider would give rise to testimonial statements.

Under the circumstances present here, the complainant's 911 call was a cry for help and was made without reflection or deliberation. This was not the type of statement contemplated by the Crawford Court as testimonial. Accordingly, this Court concludes that the Confrontation Clause does not bar the admissibility of the complainant's statement during the call. [*7]

The complainant's statements to Officer Cantaloupe, while presenting a closer question, also do not qualify as testimonial under Crawford. The officer engaged in brief, investigatory questioning that simply was not the kind of structured, formal interrogation envisioned by the Crawford Court. As set forth above, the officers arrived at the apartment within two to three minutes of receiving their radio run. The officers needed to ascertain whether the complainant was injured or in danger, particularly when faced with the defendant's reluctance to open the door to them. When the complainant exited the apartment, Officer Cantaloupe noticed that she appeared very nervous, had tear streaks on her face, and was bleeding profusely from her ear. He asked the complainant some brief, general questions to ascertain the cause of her injuries and to determine if there were any immediate concerns for her safety that needed to be addressed.

This Court has not found appellate cases from New York State that consider this precise issue. However, guidance may be had from the Court's decision in People v. Newland, 6 AD3d 330 (1st Dept. 2004). In that case, the Court looked at the nature of the statement and the surrounding circumstances to determine if it was testimonial. In Newland, a police officer investigating a burglary spoke briefly to a person who was across the street from the burglary site. As a result of that conversation the officer searched a shopping cart and found a paper bearing the defendant's name. The Supreme Court, Appellate Division, First Department, concluded that a brief, informal remark to the officer conducting the field investigation was not made in response to "structured police questioning" and should not be considered testimonial, because it "bears little resemblance to the civil-law abuses the Confrontation Clause targeted." Id. at 331.

Two decisions from New York trial courts are also instructive: People v. Watson, 5 Misc 3d 1013A, 2004 NY Misc. LEXIS 2133 (NY Co Sup. Ct. 2004), relied on by the defendant, and People v. Mackey, 5 Misc 3d 709 (NY Co. Crim. Ct 2004), relied on by the prosecution. In Watson, the Court considered three statements that a robbery victim made to police officers. The Court noted that the Supreme Court's discussion in Crawford "suggests that a testimonial statement in the context of a police interrogation is one which the declarant makes knowingly in response to structured questioning which the government is undertaking in furtherance of the prosecution of the defendant, or under some other circumstances which renders the statement a 'formal' declaration." People v. Watson, 2004 NY Misc. LEXIS 2133 at **34.

The Court concluded that the victim's initial, unprompted statement to a police officer that the defendant had just robbed him in Burger King was not a formal statement made in response to structured questioning, or, in fact, to any questioning at all. The Court further reasoned that the spontaneous statement was not one that the victim would reasonably have expected to be used in a future judicial proceeding. Accordingly, the Court determined that the initial statement was not testimonial and was therefore not barred by the Confrontation Clause under the rule enunciated in Crawford. Id., 2004 Misc. LEXIS 2133 at **44-45.

Next, the Court analyzed the victim's second statement, which was made in response to the officer's question as to whether anyone else had been involved in the crime. The victim replied that the defendant had acted alone. The Court found that the police officer's question was not a structured question asked with an eye toward trial, but was asked immediately after the police had been summoned to the scene of an armed robbery in progress. Accordingly, [*8]the Court found that the question stemmed from the officer's desire to secure the area and determine whether the police should search for other armed robbers in close proximity in order to ensure the safety of the officers, victims and other civilians in the area. The Court further determined that the victim undoubtedly believed that the officer's inquiry sought to determine whether the danger had passed due to the apprehension of the sole participant in the crime and therefore, the victim's second statement was not testimonial. Id. at **45-46.

By contrast, the Court concluded that the victim's final statement was testimonial in nature as it was made under circumstances different from the other statements. The Court stressed that when the third statement was given, the defendant had already been placed in custody and the police had recovered both the robbery proceeds and a loaded gun. It was at that point that the officer asked a formal, structured question seeking a narrative of events. The Court found that under those circumstances any questioning was clearly undertaken with an eye toward trial and a reasonable person in the victim's circumstances would have been cognizant that the officer's question, which sought to elicit the details of the crime after defendant was already apprehended, was intended to aid the police in future judicial proceedings involving defendant. Id. at **47.

The defendant argues that the circumstances before this Court are similar to the circumstances of the third statement considered in Watson. This Court disagrees. Unlike here, in Watson, the defendant was already under arrest at the time of the third statement. As a result, the questions were designed with an eye toward trial. The second statement in Watson, by contrast, was elicited in response to police questioning designed to secure the scene and ensure the safety of officers, victims, and civilians in the area, as was the case here. Thus, the statements in this case are more akin to the second statement, which was found to be non-testimonial by the Watson Court, than the third statement.

In People v. Mackey, 5 Misc 3d 709 (NY Co. Crim. Ct. 2004), the Court concluded that none of the victim's statements was testimonial. The facts in Mackey are as follows: a victim, who was crying and had a swollen cheek, approached a police officer. The officer asked the victim what was wrong and the victim replied that her boyfriend had punched her in the face, pushed her down, and tried to take her children. The officer asked whether the victim needed medical attention and where and when the incident had happened. After the victim answered those questions, the officer asked for a description of defendant. The victim pointed to defendant and stated, "There he goes," as the defendant approached them. In reaching its conclusion that the statements were not testimonial, the Court first noted that the victim initiated contact with the officer immediately after the alleged assault. The Court further noted that the victim's statements were not made in response to structured police questioning, given in a formal setting, nor contained within a formalized document, in contrast with the statement found inadmissible in Crawford, where the statement resulted from a custodial, Miranda-warned, tape recorded interrogation. The Mackey Court found that the primary purpose of the statements from both a subjective and objective perspective was to seek immediate protection, not to initiate investigative and prosecutorial action and bear witness against the defendant, and the questioning by the officer lacked the requisite formality to constitute a police interrogation. Id. at 714-715.

The circumstances of this case are strikingly similar to those in People v. Mackey. The officers arrived within minutes at the scene in response to the complainant's call for [*9]assistance. The police did not know the precise nature of the possible crime, whether the boyfriend had any weapons that could pose a danger to the officers or others, or whether the complainant needed medical attention. Officer Cantaloupe asked brief, general questions as part of a preliminary assessment of the situation and to determine whether there was imminent danger to the complainant. The complainant was visibly nervous, was still under the stress of the startling event, and was not in a position to contemplate just how her answer would be used. Moreover, when Officer Cantaloupe spoke with the complainant, the defendant was not in custody, when the need to get details in preparation for trial heightens. His informal questioning was not the functional equivalent of formal, focused police interrogation. Thus, the complainant's responses to Officer Cantaloupe's limited on-the-scene questioning before the defendant's arrest are not testimonial.

This Court's decision is not changed by the officer's testimony that in posing questions to the complainant, he was investigating the 911 call and deciding whether to make an arrest, nor his testimony that the complainant's information would be written in police reports and used at trial. Any time an officer responds to a 911 call the officer must decide whether to make an arrest, and, if so, the underlying information would likely be relevant to trial. That questions posed "may ultimately end up aiding the investigation and prosecution of a defendant," however, does not automatically render such questions testimonial. People v. Watson, supra, 2004 NY Misc. LEXIS 2133 at***43-44. This Court follows those courts that have concluded that statements made to police officers who are securing and assessing the scene of an alleged crime particularly in response to a civilian's cry for help are generally not testimonial.

While not unanimous, the vast majority of courts have concluded that statements made at the initial stage of an encounter when officers are trying to ascertain whether a victim, officers, or other civilian witnesses are in danger and to secure the scene are not testimonial, because the officers at that point are not obtaining information for the purpose of making a case against a suspect. See, e.g., People v. Hembertt, 269 Neb. 840 (Neb. Sup. Ct. May 20, 2005) (excited utterances by domestic violence complainant to police officers were made to assist in securing the scene and apprehending the suspect and were not testimonial); Spencer v. State, 2005 Tex. App. LEXIS 3162 (Tex. Ct. App. April 28, 2005) (statements made to officers responding to a 911 call of domestic violence, during the initial assessment and securing of the scene, were not testimonial); Anderson v. State, 2005 Alas. App. LEXIS 40 (Alaska Ct. App. April 15, 2005) (domestic violence victim's statement to a police officer at the scene was not testimonial as it was an excited utterance made in response to minimal police questioning); State v. Veesenmeyer, 2005 Minn. App. LEXIS 287 (Minn. Ct. App. March 15, 2005) (victim's statements to police who arrived at the scene and asked preliminary investigatory questions were not testimonial); Key v. State, 2005 Tex. App. LEXIS 1573 (Tex. Ct. App. Feb. 28, 2005) (victim's statement was not testimonial where it was made to an officer responding to a call who was assessing and securing the scene); State v. Maclin, 2005 Tenn. Crim. App. LEXIS 108 (Tenn. Crim. App. Feb. 9, 2005) (statements made by domestic violence victim to officers who arrived at the scene in response to a 911 call were excited utterances and were not testimonial); People v. King, 2005 Col. App. LEXIS 111 (Colo. Ct. App. Jan. 27, 2005) (victim's statements made in the ambulance and at the hospital, although made partly in response to questioning from a police officer, were not testimonial as they were made spontaneously in reaction to being [*10]assaulted and injured); Stancil v. U.S, 866 A.2d 799 (D.C. Ct. App. Jan. 27, 2005) (statements made by victims or witnesses in response to preliminary questioning by the police to ascertain whether anyone is in danger and to secure the scene are not testimonial); People v. West, 355 Ill. App.3d 28 (Ill. Ct. App. Jan. 5, 2005) (victim's statements at scene were not testimonial where they were in response to preliminary questions posed by the officer for the purpose of attending to the victim's medical concerns and not for the purpose of producing evidence); People v. Corella, 122 Cal. App. 4th 461 (Cal. Ct. App. Sept. 16, 2004) (domestic violence victim's statements to a 911 operator and officers who arrived at the scene were not testimonial); State v. Barnes, 2004 ME 105 (SJC Maine Aug. 10, 2004)(victim's statements to the police regarding an assault by the defendant were not testimonial when the victim went to the police station seeking aid and any questions posed to her by the police were made to determine the cause of her distress); Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. June 14, 2004)(statements are not testimonial when made in response to initial questioning by police at the scene to determine what happened following 911 call of domestic dispute), lv. granted, 2004 Ind. LEXIS 1030 (Ind. Sup. Ct. Dec. 9, 2004); Hammon v. State, 809 N.E.2d 945 (Ind. App. June 14, 2004) (victim's statement that the defendant had attacked her was not testimonial, when it was made in response to preliminary, informal questioning by a police officer responding to request for assistance who was seeking to determine what had happened), lv. granted, 2004 Ind. LEXIS 1031 (Ind. Sup. Ct. Dec. 9, 2004); State v. Forrest, 164 N.C. App. 272 (N.C. Ct. App. May 18, 2004)(victim's statements to detective in response to questions were not testimonial where the victim was shaking, nervous, and spontaneously initiated the conversation immediately after she was rescued from a kidnapping), aff'd, 2005 N.C. LEXIS 460 (N.C. Sup. Ct. May 5, 2005); but see, e.g., State v. Byrd, 2005 Ohio 1902 (Ohio Ct. App., Fulton Co. April 15, 2005 (complainant's statements at the scene of a domestic dispute incriminating the defendant were testimonial when they were made in response to the police's questions about what had occurred and a reasonable person would have anticipated that they would be used to prosecute the defendant); Lopez v. State, 888 So. 2d 693 (Fla. Dist Ct. App. 1st Cir. Nov. 17, 2004) (victim's statements to officers at the scene regarding his abduction were testimonial where, even in his excitement, the victim contemplated that he was making a formal report to an officer that would be used in court against the defendant).

In light of the foregoing, the defendant's motion to preclude the complainant's

statements to the 911 operator and to Officer Cantaloupe under the hearsay rules and the Confrontation Clause is denied.

The foregoing shall constitute the Decision and Order of this Court.

Dated:May 31, 2005

Bronx, New York

______________________________

JUDITH LIEB, A.J.S.C. [*11]

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