People v Gethers

[*1] People v Gethers 2012 NY Slip Op 50461(U) Decided on March 12, 2012 Supreme Court, Richmond County DiDomenico, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2012
Supreme Court, Richmond County

The People of the State of New York,

against

Herman Gethers, Defendant.



40081M-2010



For the People:

Rhiannon Haddad, Esq.

Office of the District Attorney, Richmond County

130 Stuyvesant Place

Staten Island, NY 10301

For the Defendant:

Scott M. Schwartz, Esq.

404 Manor Road

Staten Island, New York 10301

Catherine M. DiDomenico, J.

Recitation as required by CPLR 2219(a), of the papers considered in the review of the People's Motion.

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PapersNumbered

People's Notice of Motion to introduce 911 Call1

Defendant's Affirmation in Opposition2

People's Answer to Defendant's Opposition3

Official Court Transcript 2/14/124

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Upon the foregoing cited papers, the Decision/Order on the People's application is as follows:

The People move to introduce a recording of a 911 call made by the complaining witness. The People argue that the hearsay statements made to the 911 operator fall within the hearsay exception of present sense impression. For the reasons set forth below, the motion is granted. [*2]

Defendant was arrested on September 13, 2010 and charged with Criminal Contempt in the Second Degree [Penal Law §215.50(3)] for allegedly violating an Order of Protection in favor of his wife. The complaint alleges that on September 4, 2010, Defendant repeatedly drove past the complaining witnesses' residence and parked his vehicle in front of the home. The People contend that immediately after seeing Defendant drive away for the final time, the complaining witness called 911 to report what had occurred. The People now seek to introduce the recording as part of their case in chief against Defendant at trial.

The Applicable Law

A party is required to satisfy both components of contemporaneity and corroboration to prevail on the hearsay exception of present sense impression. People v. Williams, 16 Misc 3d 1104(A)(Sup. Ct. Kings Co. 2007). The Court may admit hearsay testimony of a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. See People v. Brown, 80 NY2d 729 (1993). This ensures that the statement is an accurate representation of the transpiring event, leaving no time for reflection or formulation of opinion. People v. Brown, 80 NY2d 729 (1993). The second component of corroboration requires that there "must be some evidence in addition to the statements themselves to assure the court that the statements sought to be admitted were made spontaneously and contemporaneously with the events described." People v. Vasquez, 88 NY2d 561, 575 (1996); People v. Brown, 80 NY2d 729, 737. A court will decide on a case by case basis as to the appropriate evidence to corroborate the statement. Once a court finds that the hearsay statement qualifies under the present sense impression exception, a court will then weigh the prejudicial value against the probative value of admitting such statements.

A. Contemporaneity

In this case, the People argue that Defendant's conduct began at approximately 8:30 a.m. and continued until approximately 8:50 a.m. Defendant contends that the Criminal Court Complaint, Omniform Online Booking sheet, Voluntary Disclosure Form, and the Detective's DD-5's indicate that the event occurred and ended at approximately 8:30 a.m. There is no dispute that the 911 call took place at 8:54 a.m.

Contrary to Defendant's argument the People provided the Court with the Omniform Complaint Report which stated that the event occurred from 8:30 a.m. through 8:50 a.m. as well as the Domestic Incident Report which stated that the event occurred at approximately 8:50 a.m. As there was only a four minute delay between the complaining witness's claim that the end of occurrence was at 8:50 a.m. and the undisputed 8:54 a..m. 911 call, the court finds that the call was sufficiently contemporaneous so as to satisfy the present sense impression exception. People v. York, 304 AD2d 681 (2nd Dept. 2003).

B. Corroboration

The People represented on the record that an additional witness will be called at the time of trial to corroborate the 911 call. Defendant argues that the promise to call a witness is insufficient to satisfy the corroboration requirement. Defendant cites no cases to support this proposition. In any event, the court is granted great discretion to decide whether or not a recording of a 911 call is sufficiently corroborated after observing the credibility of the witness and hearing their testimony. See People v. Brown, 80 NY2d 729 (1993); People v. Semple, 174 Misc 2d 879 (Sup. Ct. Kings Co. 1997).

[*3]C. Unduly Prejudicial

Defendant further contends that the 911 call will be unduly prejudicial since the recording will bolster the complaining witness's testimony at trial. The Court does not find that admittance of the 911 call would be unduly prejudicial as it reveals the urgency of the complaining witnesses' phone call to 911 and allows the jury or fact finder an opportunity to experience the crime as it unfolded. See People v. Buie, 86 NY2d 501 (1995).

Conclusion

The Court finds that the complaining witnesses' 911 call satisfies the present sense impression exception to the hearsay rule and its probative value outweighs any prejudicial effect. Accordingly, the People may play the 911 tape at trial subject to corroboration and its admissibility will be ruled upon by the Court at that time.

This constitutes the Decision and Order of this Court.

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Dated: March 12, 2012Honorable Catherine DiDomenico

Acting Justice of the Supreme Court