People v Watson

[*1] People v Watson 2004 NY Slip Op 51364(U) Decided on November 8, 2004 Supreme Court, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 2004
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK,

against

CHARLES WATSON, Defendant.



7715/90

Marcy L. Kahn, J.

On December 10, 1991, following a jury trial, defendant was convicted of robbery in the first and second degrees (PL §§160.15, 160.10), and criminal possession of a weapon in the second and third degrees (PL §§265.02[4], 265.03[2]), in connection with a gunpoint robbery of a Burger King restaurant in lower Manhattan. Defendant now moves this court pursuant to CPL §440.10(1)(h) to vacate the judgment against him, claiming that his conviction was obtained in violation of his rights to confrontation under the federal Constitution. (CPL §440.10[1][h]). In support of his claim, defendant relies on the recent Supreme Court decision in Crawford v. Washington, __ US __, 124 S. Ct. 1354 (2004), which he contends should be retroactively applied on this post-conviction motion.

Although this court agrees that it must apply Crawford retroactively to defendant's case and concludes that New York's excited utterance exception to the rule against hearsay does not automatically constitutionally exempt out-of-court statements from Crawford analysis, the court nevertheless denies the present motion, based on the facts presented.

I.FACTUAL AND LEGAL BACKGROUND

A. The Trial

1. The People's Case

According to the testimony of the People's witnesses, at approximately 4:00 p.m. on June 26, 1990, defendant Charles Watson entered the Burger King restaurant located at 275 Canal Street in Manhattan. Once inside, he threatened several employees with a gun and demanded money. (Transcript of trial at 30-33, 71-73 ["Tr."]). Defendant hit one employee, Blair Alexander, in the head with the gun. He then put another employee, Louis Torres, into a headlock, pointed the gun at his head, and forced him to lead defendant to the safe located in the restaurant's basement. Richard Crespo, the manager of the Burger King, was then in the basement counting out the money from the cash register and preparing bank deposit slips. [*2]Defendant stole $1038 from the cash register and the safe and then left the restaurant. (Tr. at 35).

Meanwhile, three plainclothes New York Police Officers, George Loydgren, Kevin Tyrell and Tucker Gray, were in a variety store located at 273 Canal Street, next door to Burger King. (Tr. at 63-68, 101-103). At 4:15 p.m. they heard people screaming that there were men with guns next door. The officers drew their firearms and ran to the Burger King, where they encountered defendant standing alone on the steps outside the entrance to the restaurant. He was sweating profusely, and his eyes were darting back and forth. Defendant held a large canvas money bag in his left hand. (Tr. at 66-67, 69, 86-90, 101-103). Officer Tyrell could see that in his right hand defendant held an automatic pistol which he had partially concealed in his pocket. (Tr. at 103-104, 110-111).

The three officers grabbed defendant and recovered the bag, later found to contain $938, and removed the gun from his hand. (Tr. at 69-70, 92-93, 104-105, 108). The officers also recovered $100 from defendant's pants pocket. Once apprehended, Watson asked the police officers: "How did you guys get me so quick?" He then told them that if he had had "five more feet," he would have "shot it out" with them. (Tr. at 70, 90, 99, 104).

A minute later, Richard Crespo and Blair Alexander came out of the Burger King. Each made an immediate statement to the police identifying defendant as the man who had just robbed the restaurant. (Tr. at 44-45, 71).[FN1] Alexander, who was bleeding profusely from the head, visibly shaken and nervous, without prompting, noticed defendant and told Officer Loygdren that defendant "just robbed me. He just robbed us in Burger King." (Tr. at 71). Loydgren asked Alexander whether any other perpetrators had been involved, and Alexander responded that defendant had acted alone. Officer Loydgren then asked Alexander to tell the officer what had happened. Alexander responded that defendant had entered the Burger King, had walked past the counter, entered the kitchen, pointed a gun at him, and had demanded money from the safe. When Alexander told defendant that there was no safe, defendant had thrown him to the ground, hit him in the head with the gun, and threatened to "blow his head off." (Tr. at 72-73).

Alexander was treated by paramedics at the scene and was later taken to Beth Israel Medical Center for treatment for scalp lacerations and contusions. (Tr. at 73). His medical records indicated that he received three staple sutures to the head, and that he subsequently returned to the hospital on two occasions complaining of dizziness, pain and blurred vision.

2. Defendant's Case

Defendant's case at trial established that on June 26, 1990, defendant left the apartment of his girlfriend, Theresa Moody, in Brooklyn and went to see his associate, Boo, in a neighboring apartment. (Tr. at 144, 153). Defendant, who had no money, was seeking some cash from Boo. (Tr. at 144). Boo told defendant that he was similarly broke, but remarked that his acquaintance, Alexander, owed him money. Boo also told defendant that if he would accompany Boo to Alexander's job on Canal Street, to "watch [his] back," Boo would give defendant some of the money he got from Alexander. (Tr. at 144-145).

On their way to Canal Street, defendant and Boo smoked some marijuana mixed with crack. (Tr. at 144). On arriving at Canal Street, Boo entered the Burger King while defendant [*3]waited outside the restaurant. Defendant saw Boo confront Alexander and hit him in the head. Boo then went downstairs. (Tr. at 144). A minute or two later, Boo came outside and handed defendant a "Burger King bag" and $100, and then went to get the car. Watson put the cash into his pocket, and remained in front of the restaurant as a look-out. Unbeknownst to defendant, the bag he was holding contained a pistol.

According to defendant, as he stood on the steps of Burger King making sure that nobody followed Boo (Tr. at 145, 165), a police officer suddenly ran up to him, threw him to the ground, grabbed the bag, and found the gun inside. The officer also recovered the $100 from his pocket. (Tr. at 145, 165-67).

B. Post-Conviction Proceedings

Defendant was convicted of robbery in the first and second degrees (PL §§160.15, 160.10) and criminal possession of a weapon in the second and third degrees (PL §§265.02[4], 265.03[2]). On January 16, 1992, defendant was sentenced as a second violent felony offender. Defendant's conviction was affirmed by the Appellate Division, First Department. (People v. Watson, 205 AD2d 398 [1st Dept. 1994]), and leave to appeal to the Court of Appeals was denied on August 18, 1994. (People v. Watson, 84 NY2d 834 [1994]).

II. DEFENDANT'S CRAWFORD CLAIM

A. Retroactivity[FN2]

1. The Federal Standard

When a decision of the United States Supreme Court establishes a new rule of constitutional law, it applies to all cases still pending on direct review. (See Griffith v. Kentucky, 479 US 314, 328 [1987]). The Supreme Court has also established standards for determining when a new rule of constitutional law applies retroactively to cases on collateral review. While new substantive rules will generally apply retroactively (Bousley v. United States, 523 US 614 [1998]), new rules of constitutional procedural law will generally not have retroactive application when raised collaterally. In Teague v. Lane, 489 US 288 (1989)(plurality opinion), the Court held, however, that a new procedural rule must be applied retroactively on collateral review if it either (1) places "private individual conduct beyond the power of the criminal law-making authority to proscribe," or (2) constitutes a "watershed rule" of criminal procedure which is "implicit in the concept of ordered liberty." (Id. at 311-312).

The Court did not provide a list of which constitutional rules are considered "watershed." It noted, however, that if the rule "alter[s] our understanding of [a] bedrock procedural [element]" and "vitiate[s] the fairness" of a conviction, then the rule is considered a "watershed" rule. (Id.). The Court further stated that in order to be applied retroactively on collateral review, the new rule must "implicate the fundamental fairness of the trial," and must be a rule of procedure "without which the likelihood of an accurate conviction is seriously diminished." (Id.). The Supreme Court later clarified that it is not enough under Teague to say that a new rule that is aimed at improving the accuracy of the trial is watershed. (See Sawyer v. Smith, 497 US 227, 242 [1990]). To be watershed, the rule must also "alter our understanding of bedrock procedural elements essential to the fairness of the proceeding." (Id.). The rule must also have "primacy and centrality," like the defendant's right to counsel, "or other rules which may be thought to be within the exception." (Saffle v. Parks, 494 US 484, 495 [1990]).

An analysis under Teague involves three steps. (See Beard v. Banks, __ US __, 124 S.Ct. [*4]2504, 2507 [2004]). First, the court must determine the date on which a defendant's conviction became final, in order to decide whether the new decision was rendered after the defendant's case had by then finally been decided on direct review. (Id.). Second, it must "ascertain the legal landscape" as it existed at the time the defendant's conviction became final, in order to determine whether the law to be applied retroactively is actually a "new" law. (Id., quoting Graham v. Collins, 506 US 461, 468 [1993]). Finally, if the rule is new, the court must then consider whether it falls within either of the two Teague exceptions that permit the retroactive application of a new rule on collateral review. (See Beard v. Banks, supra , 124 S.Ct. at 2507).

Prior to its decision in Teague, the Supreme Court had held that certain rules of constitutional law applied retroactively to cases on collateral review. (See e.g., Roberts v. Russell, 392 US 293 [1968][rule of Bruton v. United States, 391 US 123 (1968), prohibiting admission into evidence of a non-testifying co-defendant's statement, held retroactive on collateral review]; Gideon v. Wainwright, 372 US 335 [1963][rule providing a defendant with a right to counsel fully retroactive]). Since Teague, however, the Court has not applied any new rule of constitutional law retroactively to cases on collateral review.[FN3] In a recent decision, the Supreme Court noted that the class of watershed rules that warrant retroactive application is "extremely narrow" and it is "unlikely that any [has] yet to emerge." (Schriro v. Summerlin, __ [*5]US __, 124 S. Ct. 2519 [2004] [citations omitted]).

2. The New York Standard

In People v. Eastman, 85 NY2d 265 (1995), the New York Court of Appeals applied the Teague standard in determining the retroactive application of a new rule of federal constitutional procedure on collateral review in New York state cases. In Eastman, the Court was presented with the question of whether the Supreme Court's decision in Cruz v. New York, 481 US 186 (1987), applied retroactively to the defendant's case where the issue was raised on a post-conviction motion. In Cruz, the Supreme Court had determined that the admission at trial of an incriminating confession of a non-testifying co-defendant violates the Confrontation Clause of the Sixth Amendment, even where the defendant's own confession "interlocks" with that of the co-defendant. (Id.).

The Eastman Court first noted that in holding that due process is denied in the jury's determination of guilt or innocence by the introduction of the confession of a non-testifying co-defendant which implicates a defendant, Cruz "marks a break" from both federal and state constitutional precedents. (People v. Eastman, 85 NY2d at 274-75, citing Cruz v. New York, 481 US at 192-93). The Court then announced that it would be applying federal law in resolving the issue before it:

Because Cruz fundamentally alters the Federal constitutional landscape, the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition of this case.



(People v. Eastman, 85 NY2d at 275).

The Court of Appeals next acknowledged the general rule that new constitutional rules of criminal procedure not cabined within one of Teague's two exceptions will not be applicable to cases which have become final on direct review prior to the Supreme Court's announcement of the new rule. (Id.). In doing so, the Court cited Mackey v. United States, 401 US 667, 675 (1971) (Harlan, J., concurring in part and dissenting in part), and Desist v. United States, 394 US 244, 256-257 (1969) (Harlan, J., dissenting), upon which the Supreme Court had relied in formulating its Teague doctrine. Focusing on the second Teague exception, pursuant to which new rules of constitutional criminal procedure are applied "where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness of the trial," (People v. Eastman, 85 NY2d at 275), the Court observed that the Cruz decision "unquestionably departs from established precedent" and "implicates a bedrock procedural element the Sixth Amendment right of Confrontation." (Id. at 276). On considering the holding of Cruz, that the introduction of interlocking confessions, even accompanied by limiting instructions, "never assured the defendant a fair determination of guilt or innocence," and finding that the new rule announced by the Supreme Court in that case was "central to an accurate determination of guilt or innocence," the Court of Appeals then held that retroactive application of Cruz was constitutionally commanded on collateral review of the judgment. (People v. Eastman, 85 NY2d at 276).

The Eastman Court continued its analysis by recognizing that Cruz itself had held that Confrontation Clause violations are subject to harmless error analysis. Examining the record before it, and finding the Cruz error not to have been harmless beyond a reasonable doubt, the [*6]Court granted the motion vacating the judgment, and ordered a new trial.

Research not having revealed any contrary Court of Appeals rulings, it is fair to conclude that the present state of the law in New York is that a new federal constitutional criminal procedural rule announced by the United States Supreme Court will be given retroactive application to cases on collateral review, where the new rule alters our understanding of the Sixth Amendment right of confrontation, affects the fundamental fairness of the trial and is central to an accurate determination of innocence or guilt.[FN4]

3. Application

In this case, the threshold question to be decided is whether Crawford, another Confrontation Clause case, applies retroactively to cases on collateral review. Following the three-step Teague analysis, the first issue to be resolved is whether defendant Watson's case was final on direct review at the time the Supreme Court announced its decision in Crawford. A defendant's conviction becomes final when "a judgment of conviction has been rendered, the availability of the appeal exhausted, and the time for a petition for a writ of certiorari elapsed or a petition for certiorari finally denied." (See Griffith v. Kentucky, 479 US at 321 n. 6). The time to file a petition for a writ of certiorari expires ninety days after the entry of a Court of Appeals judgment. (See Sup. Ct. R. 13.1).

Here, after the Appellate Division, First Department affirmed defendant's conviction, he sought leave to appeal to the Court of Appeals. On August 18, 1994, the Court of Appeals denied defendant's leave application. (People v. Watson, 84 NY2d 834 [1994]). The time for defendant to have sought a writ of certiorari to the Supreme Court lapsed on November 16, 1994, ninety days after the Court of Appeals denied his leave application. Defendant's failure to have petitioned for a writ of certiorari to the Supreme Court during this time rendered his conviction final as of November 16, 1994, well before Crawford was decided on March 8, 2004.

The second step under the Teague analysis is to determine the "legal landscape" at the time defendant's conviction became final. In 1994, the controlling precedent governing the admission of hearsay evidence under the Confrontation Clause was Ohio v. Roberts, 448 US 56 (1980). Under Roberts, a non-testifying declarant's statement could be admitted at trial without offending the Confrontation Clause, so long as there was a showing that it fell within a "firmly rooted hearsay exception" or bore other "indicia of reliability." (Id. at 66). The Court's holding in Crawford, that testimonial hearsay evidence may not be admitted at trial unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine him or her, appears to overrule Ohio v. Roberts.[FN5] (See e.g., Crawford v. Washington, 124 S.Ct. at 1371). [*7]Accordingly, the rule Crawford is "new" for the purposes of the Teague analysis. (See Teague v. Lane, 489 US at 301 ["a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final"] [italics in original]).

Once a determination has been made that a rule is new, under the third step of the Teague analysis, the court must consider whether the rule falls under either one of the two Teague exceptions permitting the retroactive application of a new rule on collateral review. Here, the decision in Crawford addresses the Sixth Amendment's Confrontation Clause, which provides that "in all criminal prosecutions, the accused shall enjoy . . . the right to be confronted with witnesses against him . . . ." (U.S. Const. amend. VI). It therefore does not deal with the range of conduct which a state may criminalize. Accordingly, the first exception under Teague is inappliable. (See Teague v. Lane, supra ; People v. Eastman, supra ).

Under the second Teague exception, a new rule which requires the observance of a watershed rule of criminal procedure which is "implicit in the concept of ordered liberty" must be applied retroactively. (Teague v. Lane, 489 US at 311-312). As discussed above, in order for a rule to be considered watershed, it must "alter our understanding of [a] bedrock procedural element," and must also "implicate the fundamental fairness of the trial" and the accuracy of the conviction. (Id. at 312).

Here, the majority opinion in Crawford clearly acknowledges that the Sixth Amendment's Confrontation Clause is unquestionably a "bedrock procedural guarantee." (Crawford v. Washington, 124 S.Ct. at 1359). In its earlier jurisprudence, the Supreme Court has also held that the Sixth Amendment right to confront witnesses implicates the fundamental fairness of the trial and the accuracy of a defendant's conviction. In Pointer v. Texas, 380 US 400, 403-404 (1965), the Court made obligatory on the states the Sixth Amendment's right of an accused to confront witnesses against him or her, precisely because it is a "fundamental right" essential to a fair trial. In Pointer, the Court also recognized "the value of cross-examination in exposing falsehood and bringing out the truth in a criminal case." (Id.). Indeed, the Court has since held that cross-examination is important because it is "the greatest legal engine ever invented for the discovery of truth." (White v. Illinois, 502 U.S. 346, 356 [1992], quoting California v. Green, 399 US 149, 158 [1970]). And the Court has also explained that the "basic purpose" of the Confrontation Clause is the "promotion of the integrity of the fact finding process." (White v. [*8]Illinois, 502 US at 356, quoting Coy v. Iowa, 487 US 1012 [1988]).

In two cases decided before Teague v. Lane, the Supreme Court was called upon to determine the retroactivity of new rules of law which were based upon the defendant's right to confront witnesses. In Roberts v. Russell, supra , the Court applied retroactively on collateral review its decision in Bruton v. United States, 391 US 123 (1968), holding that the admission of a non-testifying co-defendant's statement was a "serious flaw" that deprived the defendant of "a fair determination of his guilt or innocence." (Roberts v. Russell, 392 US at 294). The Court has never modified its ruling in Roberts that the new rule in Bruton, which altered our understanding of the Confrontation Clause, was retroactive on collateral review.

Similarly, in Berger v. California, 393 US 314 (1969), the Court held that the rule in Barber v. Page, 390 US 719 (1968), that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the state made a good faith effort to secure the witness's presence, applied retroactively to cases on direct appeal.[FN6] In so holding, the Court noted that the inability to cross-examine a witness at trial may have had a "significant effect on the integrity of the fact-finding process." (Berger v. California, 393 US at 315).

The Supreme Court has not considered the retroactivity of any new rule of constitutional law implicating the Confrontation Clause since its decision in Teague, supra . Therefore, notwithstanding the fact that Roberts v. Russell and Berger v. California were not decided according to the Teague standard, they support the view that the constitutional right to confront witnesses is a watershed rule, because they indicate that a violation of this right implicates the fairness of the trial and the accuracy of the fact-finding process.

The language used in the Crawford decision itself also lends support to the view that its declaration of the rule prohibiting the admission of testimonial statements at trial unless they have been subject to cross-examination is watershed. The Crawford majority opinion repeatedly emphasized the unique role that cross-examination plays in the fact-finding process. In this regard, the Court noted that the framers realized that "nothing can be more essential" to the fact finding process "than the cross-examination [of] witnesses." (Crawford v. Washington, 124 S. Ct. at 1363 [citations omitted]). It further held that the previous standard under Roberts had replaced "the constitutionally proscribed method of assessing reliability with" a "mere judicial determination of reliability," which the Court described as "wholly foreign" to what the Constitution requires. (Id.). The Court found that "[w]here testimonial statements are involved, we do not think the framers meant to leave the Sixth Amendment's protection to the vagueries of the rules of evidence, much less to amorphous notions of reliability." (Id. at 1370). Accordingly, the Court held that the Confrontation Clause "commands that [the] reliability of [statements] be assessed in a particular manner: by testing in the crucible of cross-examination." (Crawford v. Washington, 124 S.Ct. at 1370).

[*9] As noted, the Supreme Court held in Crawford itself, and the New York Court of Appeals has held in Eastman, that the right to confront witnesses is a "bedrock rule" of criminal procedure. (Crawford v. Washington, 124 S. Ct. at 1359; People v. Eastman, 85 NY2d at 275). Further, the violation of a defendant's right to cross-examine a witness who has made a testimonial statement against him or her, according to Crawford, calls into question the reliability of the testimony admitted at trial. This concern implicates the fundamental fairness of the trial, may have a significant effect on the integrity of the fact-finding process, and could compromise the jury's determination of a defendant's guilt, as long-standing Supreme Court precedent has shown. Accordingly, applying Teague's teachings, this court finds that the rule announced in Crawford is a "watershed" rule of Criminal Procedure, and thus applies to cases on collateral review.

This court is aware that many lower federal courts have determined that the rule announced in Crawford should not apply retroactively on collateral review. (See e.g., Brown v. Uphoff, 381 F3d 1219[10th Cir. 2004]; Evans v. Luebbers, 371 F3d 438, 444-45 [8th Cir. 2004]; Garcia v. United States, 2004 WL 1752588 [N.D.NY August 4, 2004]; Hutzenlaub v. Portuondo, 325 F. Supp. 2d 236 [EDNY 2004]; Wheeler v. Dretke, 2004 WL 1532178 [N.D. Tex. July 6, 2004]; Murillo v. Frank, 316 F. Supp. 2d 744 [E.D. Wis. 2004]).[FN7] For the most part, however, with little analysis, these courts have generally held that Crawford cannot be applied retroactively on collateral review under Teague v. Lane because Crawford did not announce a watershed rule of criminal procedure. Where explanations have been proffered for this conclusion, these courts have generally pointed to the fact that a Confrontation Clause violation is subject to a harmless error analysis. (See Brown v. Uphoff, 381 F3d 1219(10th Cir. 1004); Garcia v. United States, 2004 WL 1752588 [N.D.NY 2004]). These courts have reasoned that because Confrontation Clause errors are subject to harmless error review (see Coy v. Iowa, 487 US at 1021), new rules altering the clause's application do not deprive a defendant of his or her fundamental right to due process and, therefore, cannot be considered a watershed rule.

While "the interpretation of a Federal constitutional question by the lower Federal courts may serve as a useful and persuasive authority" for New York state courts, these decisions are not binding on this court. (See In re Mason, 100 NY2d 56 [2003]; People v. Kin Kan, 78 NY2d 54, 60 [1991]; see generally, Lockhart v. Fretwell, 506 US 364, 375 [1993] [Thomas, J., concurring] [neither Supremacy Clause nor any other principle of federal law requires a state court's interpretation of federal law give way to a lower federal court's interpretation]). This court is therefore not bound by, and for the reasons previously discussed, declines to follow, the decisions of the lower federal courts which have rejected Crawford's retroactivity on collateral review.

Moreover, in contrast to the position of the federal courts in Brown and Garcia, this court is bound to follow the New York Court of Appeals' decision in People v. Eastman, supra . In Eastman, as noted, the Court specifically found that a new rule which alters the Sixth Amendment right to confront witnesses, a bedrock element of criminal procedure, and does so in [*10]a manner which implicates the fundamental fairness of the trial and is central to an accurate determination of guilt or innocence, falls within Teague's second exception, commanding retroactive application of the rule on collateral review. Significantly, the Court in Eastman found the rule announced by the Supreme Court in Cruz to be retroactive, notwithstanding that a Cruz violation is subject to a harmless error analysis.[FN8] Thus, contrary to the holdings of the lower federal courts mentioned above, under the New York Court of Appeals' decisional law interpreting the federal Constitution, which, in the absence of contrary United States Supreme Court authority binds this court,[FN9] the fact that a violation of a constitutional procedural rule is subject to a harmless error analysis does not bear on whether or not the rule can be considered watershed.

Accordingly, this court finds that it should, and it must, apply the Supreme Court's decision in Crawford v. Washington retroactively to defendant's case.

B. Analysis Under Crawford

1. The Crawford Rule

In Crawford, the defendant was charged with stabbing a man whom he believed had raped his wife. (Crawford v. Washington, 124 S.Ct. at 1356). The police arrested defendant, and took both defendant and his wife, Sylvia Crawford, to the police precinct. The police read defendant and his wife Miranda warnings, interrogated them, and tape recorded their interrogation of Sylvia Crawford. (Id. at 1357).

Sylvia Crawford could not testify at defendant's trial because the Washington state marital privilege prevented it. At trial, the prosecution introduced into evidence the tape recording of the interview with Sylvia Crawford as a statement against her penal interest, based on her admission in that statement that she had facilitated the assault. (Id. at 1358). Defendant challenged the admission of this statement on the ground that his constitutional right to confront his wife, who was a witness against him, had been violated. (Id.). Applying Ohio v. Roberts, supra , the Washington State Supreme Court upheld the admission into evidence of the defendant's wife's statement.

The United States Supreme Court granted certiorari and reversed, overruling its two-decades old decision in Roberts. The centerpiece of the Court's opinion was its detailed historic analysis of the early common law right to confrontation in England and the colonies. The Court found that the intent of the framers of the Constitution in establishing the right to confrontation in criminal cases was to eliminate the practice of using at trial ex parte statements made against the accused to justices of the peace, whose job was to investigate and prosecute [*11]cases for the government. (Id. at 1359-1364).

The Crawford Court held that any time a witness makes a testimonial statement against the accused, the accused has a constitutional right to confront that witness. A testimonial statement, therefore, may not be admitted at trial unless the declarant of the statement is unavailable and the defendant has had a prior opportunity to cross-examine him or her. (Id. at 1374).

In Crawford, the Court defined a witness at trial as someone who "bear[s] testimony," and it further defined "testimony" as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." (Id. at 1364, quoting 1 N. Webster, An American Dictionary of the English Language). In its decision, however, the Court declined to provide a definition of the phrase "testimonial statement."

Instead, the Court noted that "various formulations" of a "core class" of testimonial statements exist. (Id. at 1364 ["ex parte in-court testimony or its functional equivalent that is, materials such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that the declarant would reasonably expect to be used prosecutorially"; "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial"] [citations omitted]). The Court declined to adopt expressly any one of the proposed formulations, instead defining the term by example: We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.

(Id. at 1374). Reviewing the various formulations, the "common nucleus," as the Court described it (id. at 1364), for present purposes, would appear to be that a testimonial statement is a formal statement which the declarant would reasonably expect to be used in future judicial proceedings.

Crawford makes clear that prior testimony at a preliminary hearing, before a grand jury, or at a formal trial are always testimonial statements. The precise contours of what constitutes a "police interrogation" remain unclear, however, as the Court did not expressly define interrogation in this context. (Id. at 1365, n.4). Instead, the Court provided some general guidance on how to determine what constitutes an interrogation. First, the Court specified that the term "interrogation" is to be used "in its colloquial, rather than any technical legal sense." (Id.). The Court also held that a declarant's statement "knowingly given in response to structured police questioning" is testimonial. (Id. [emphasis added]). By contrast, the Court opined that statements made "unwittingly" to an agent of the government do not violate the Confrontation Clause. (Id. at 1368 [observing that Bourjaily v. United States, 483 US 171 [1987], involving statements unwittingly made to a confidential FBI informant in furtherance of a conspiracy, although not decided under the proper standard, had the correct outcome]). The Court's discussion suggests that for a statement made in response to interrogation to be testimonial, it is necessary for the declarant to be aware that his or her statement is likely to be used in a future judicial proceeding. [*12]

The Court also suggested that the behavior of government officials is relevant to the determination of whether an interrogation has occurred. The Court found that police interrogations bear a "striking resemblance" to pre-trial examinations by justices of the peace at common law, notwithstanding their unsworn nature. (Id. at 1364). Further, the Court pointed out that there is a "unique potential for prosecutorial abuse" when government officers are involved "in the production of testimony with an eye toward trial." (Id. at 1367, n. 7). Crawford, therefore, 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.[FN10]

In Crawford, the Court also held that certain types of statements are never testimonial, based on the framers' intent to exclude them from the purview of the Confrontation Clause. (Id. at 1367). Specifically, the Court declared that out-of-court statements properly admitted under the business records and co-conspirators' exceptions to the hearsay rule are not testimonial, and thus need not satisfy the requirements of Crawford as a pre-requisite to their admission in [*13]evidence. (Id.). The Court also suggested that because the hearsay exception for dying declarations existed at common law, dying declarations may "the one deviation" from the Crawford rule prohibiting the admission of testimonial hearsay at trial. (Id. at 1367, n.6).

Crawford makes clear that the test in Roberts, which "condition[ed] the admissibility of all hearsay evidence on whether it [fell] within a 'firmly rooted hearsay exception' or [bore] 'particularized guarantees of trustworthiness,'" was not "faithful to the original meaning of the Confrontation Clause." (Id. at 1369 [citations omitted]). The Crawford Court instructed that the framers did not mean to leave "Sixth Amendment's protection" to "the vageries of the rules of evidence, much less to amorphous notions of 'reliability.'" (Id. at 1370). Accordingly, it held that "[w]here non-testimonial hearsay is at issue," states have "flexibility in the development of hearsay law," but "[w]here testimonial hearsay is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (Id. at 1374). Thus, under Crawford, analysis regarding whether the admission of an out-of-court statement violates a defendant's right to confront witnesses turns on whether the statement is testimonial, rather than on whether the statement falls within an exception to the rule against hearsay.

2. Application

The challenged statements in this case were admitted at trial under the excited utterance exception to the rule against hearsay. Under the new Crawford standard, however, a statement which qualifies as an excited utterance or fits within some other exception to the rule against hearsay still may not be admitted at trial if the statement is also testimonial, unless the demands of the Confrontation Clause are satisfied as well. Specifically, such a statement can only be admitted if the declarant is unavailable and was previously subject to

cross-examination. (See Crawford v. Washington, 124 S.Ct. at 1374).

In contrast to its clear exemption of business records and co-conspirator statements from the application of its new rule, the Crawford Court did not categorically exclude excited utterances from its purview. The Court merely observed that it was "questionable" whether testimonial statements would have been admitted as spontaneous declarations under the colonial common law. (Crawford v. Washington, 124 S. Ct. at 1368, n.8, citing Thompson v. Trevain, Skin. 402, 90 Eng. Rep. 179 [K.B. 1694] [noting that to the extent to which the spontaneous declaration hearsay exception existed in 1791, it required that the statement be "made immediately upon the hurt received, and before (the declarant) had time to devise or contrive anything for her own advantage"]).

The Court's reference to the common law hearsay exception for spontaneous declarations is significant, because it reveals that the scope of the common law hearsay exception for spontaneous declarations greatly differs from the scope of New York law governing its hearsay exception for excited utterances. In this regard, while admissibility at common law of a spontaneous declaration depended upon the statement having been made "immediately upon the hurt received" (id. [emphasis added]), there is no such requirement in New York.

In New York, by contrast, an out-of-court statement may be admitted at trial under the excited utterance exception if it is made by the declarant "while he is under the stress of nervous excitement resulting from" a "startling event, while his reflective powers are stilled and during the brief period when considerations of self-interest could not have been brought fully to bear by [*14]reasoned reflection and deliberation." (People v. Fratello, 92 NY2d 565, 570 [1998], cert. denied, 526 US 1068 [1999] [citations omitted]). Statements made in response to a police inquiry may qualify as an excited utterance in New York, as long as the other criteria for an excited utterance are satisfied. (See People v. Fratello, supra ; see also People v. Cotto, 92 NY2d 68, 78 [1998], denial of habeas corpus rev'd on other grounds by Cotto v. Herbert, 331 F.3d 217 [2nd Cir. 2003]).

In the leading case of People v. Brown, the Court of Appeals analyzed the evolution of the common law hearsay exception for spontaneous declarations, including its current status in New York as the hearsay exception for excited utterances. The Court noted that at common law, in order to be admissible, a spontaneous declaration had to be made "at the same time, or so nearly contemporaneous [with the transaction] as to characterize it, or throw [some] light upon it." (People v. Brown, 70 NY2d 513, 518 [1987] [citing Waldele v. New York Cent. & Hudson Riv. R.R. Co., 95 NY 274, 278 [1898]). The Court observed that at common law, a thirty-minute delay between a startling event and an out-of-court statement would have automatically rendered the statement inadmissible. (Id.). But the Court explained that the law on hearsay had evolved over time, and, as a result, in its decision in Brown, the Court held that the thirty-minute delay between the startling event and the excited utterance was acceptable, based on other factors there present. (Id. at 519).

Thus, unlike the common law hearsay exception for spontaneous declarations, which required true immediacy, the New York exception for excited utterances imposes no "arbitrary limitation on the permissible period between the event and the excited utterance." (People v. Brooks, 71 NY2d 877, 878 [1988] [holding a two to two-and-one-half hour interval between stressful event and statement permissible]). The common law exception for spontaneous declarations and the New York excited utterance exception, therefore, are not co-extensive, and indeed, differ markedly. Thus, whether or not it is possible to deem the Crawford Court's discussion of spontaneous declarations as somehow recognizing their admissibility at common law even when testimonial, the fact that New York's current iteration of the concept departs significantly from its precursor, at the very least, requires a fact-specific analysis to determine the applicability of Crawford to a New York excited utterance in each case. In other words, no automatic exemption from Crawford analysis exists for statements admitted under the excited utterance exception in New York.

Applying Crawford to defendant's case, then, it is first necessary to determine whether the statements that Blair Alexander made to Police Officer Loydgren are, in fact, testimonial statements. At trial, Loydgren testified that roughly one minute after he apprehended defendant, Alexander came out of Burger King. Alexander was holding his head, bleeding profusely, and was shaken up and nervous. He spontaneously told Officer Loydgren: "That man just robbed me. He just robbed us in Burger King." At trial, the prosecutor then asked Officer Loydgren:

Q:Did you say anything in response?

A:I asked him if there was anybody else. He said, "no, [defendant] was the only one."

Q:Did you have a further conversation with Blair Alexander at the scene in front of Burger King?

A:Yes, I did. [*15]

Q:And, about how long after you apprehended the defendant and Blair Alexander appeared was that further conversation?

A:Approximately two minutes.

Q:Could you tell us what you said and what he said?

A:I asked him to tell me what had happened. Mr. Alexander said he was in the kitchen area when the defendant walked in past the counter into the kitchen area with a gun out, pointing it at him, and the defendant said, "I want money. I want the money in the safe." Mr. Alexander said, "We don't have any money in the safe. I don't have any." Defendant said, "Give me the money in the safe. I want the money in the safe." Mr. Alexander said, "There is no money in the safe. We don't have one." He said, "give me the money in the safe," the defendant said. He said, "We don't have money in the safe." At that time the defendant grabbed Mr. Alexander, threw him to the ground, put the gun to his head, and said "give me the money in the safe or I am going to blow your head off." Mr. Alexander said, "We don't have any money in the safe," and at that time he was hit on the back of the head with the gun.

(Tr. at 72-73).

Alexander's statements can be broken down into three parts for analysis: 1) Alexander's initial, unprompted statement to the police that defendant had just robbed Burger King; 2) Alexander's statement in response to the police officer's first question, in which Alexander indicated that defendant had acted alone during the robbery; and 3) the remainder of Alexander's statement, which was made in response to the police officer's second question, and was essentially an evidentiary narrative that provided the police officer with the details of the crime.

Application of Crawford to defendant's case requires close analysis of these three statements and the circumstances surrounding their making, and demonstrates the need for fact-specific evaluation of excited utterances under the new rule. The statements in this case were made by the crime victim, immediately after the crime, to police officers who had just arrived on the scene. Although Crawford instructs that statements "knowingly given in response to structured police questioning" are testimonial (Crawford v. Washington, 124 S.Ct. at 1365), the decision provides very little guidance on how courts should evaluate statements made during an on-the-scene investigation immediately following a crime. In this case, both the police officers and the witnesses were under considerable pressure to sort out events quickly, determine what had occurred, and make sure that there was no continuing danger to anyone. Under such circumstances, the questions posed by the police will often not be formally structured, although questions may ultimately end up aiding the investigation and prosecution of a defendant.

Applying the factors previously discussed to Alexander's statements, it is clear that the initial statement that Alexander spontaneously made to Officer Loydgren ("That man just robbed me. He just robbed us in Burger King") is not a formal statement which Alexander would reasonably have expected to be used in a future judicial proceeding, and, accordingly, is not testimonial. Although a reasonable person in Alexander's position may have been aware that his initial statement might have been used in the police investigation and prosecution, it was Alexander, not the police, who first initiated the exchange. The statement was not made in response to structured police questioning, nor in response to any questioning at all. Rather, the [*16]remark was a spontaneous statement, made without prompting, immediately after a robbery, to a police officer who happened to be on the scene. (See People v. Newland, 6 AD3d 330 ["informal remark" to officer conducting field investigation not testimonial when not made in response to "structured police questioning"]). Under these circumstances, Alexander's initial statement was not testimonial, and thus is outside the rule in Crawford.

Alexander's second statement, informing Officer Loydgren that defendant had acted alone, was given in response to the police officer's initial question of him. However, the police officer's question was not a structured question asked with an eye toward trial. As the question was asked immediately after the police had been summoned to the scene of an armed robbery in progress, the greater likelihood is that it stemmed from Loydgren's desire to secure the area. The incident occurred at 4:00 p.m. on a summer day on Canal Street, one of Manhattan's busiest thoroughfares for both pedestrian and vehicular traffic. Under these circumstances, it is likely that the officer asked this question in order to 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. It is extremely doubtful that the purpose of the officer's inquiry was made in order to determine whether he could charge defendant with robbery in the second degree for having committed the robbery while aided by another person actually present. (See PL §160.10[1]).

Furthermore, it is doubtful that Alexander held a contemporaneous belief that his second statement would be used in a future judicial proceeding. It is far more likely that he, too, 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.

Accordingly, Alexander's second statement, not solicited by police to secure evidence for future judicial proceedings, and made without an awareness by Alexander of its potential use at trial, was not testimonial. Therefore, no violation of Crawford occurred as a result of its introduction.[FN11]

Alexander's final statement, however, was made under different circumstances, notwithstanding its temporal proximity to the other two remarks. The third statement was clearly made in response to a structured question posed by the police, seeking a narrative of the event. By the time Loydgren asked Alexander what had happened, defendant had already been placed in custody and the police had recovered both the robbery proceeds and the loaded gun from him. At this point, having recovered significant evidence connecting defendant to the crime, and believing that they had succeeded in securing the scene, the police were turning their attention to obtaining information to further their investigation and prosecution of defendant as the perpetrator of the crime. Their questioning at this point was clearly undertaken with an eye toward trial.

Furthermore a reasonable person in Alexander's situation would have been aware that the [*17]officer's question was not a preliminary inquiry designed to generally assess the situation or gauge the safety of civilians in the area. He 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.

Accordingly, Blair Alexander's third statement was testimonial in nature, and required an opportunity for cross-examination of its declarant in order to meet Crawford's constitutional standards for admission at trial.

The People nevertheless claim that because the police officer only asked two questions on the scene, the questioning did not constitute an interrogation and therefore did not produce any testimonial statements. (Peo. Affirm. at 9). This argument is not persuasive. Interrogation, even as that term is used in a colloquial sense, is not determined by the number of questions asked. When a police officer or any other law enforcement agent questions a potential witness for the purpose of gathering information to aid in a suspect's prosecution, and the witness is aware of the purpose of the officer's questions, structured questioning amounting to an interrogation has occurred. That the officer obtained all of the pertinent information from a single question is of no moment.

The People next argue that the introduction of Alexander's statements at trial as excited utterances renders them, by definition, exempt from the rule announced in Crawford. (Peo. Affirm. at 10). The People maintain that in People v. Rivera, 8 AD3d 53 (1st Dept.), lv. denied 3 NY3d 662 (2004), the Appellate Division, First Department ruled that a statement introduced as an excited utterance is categorically not testimonial, and is thus not subject to Confrontation Clause scrutiny.

Contrary to the People's contention, however, Rivera did not hold as a general proposition that excited utterances are exempt from analysis under Crawford. Instead, the Appellate Division held that on the particular facts there presented, involving an excited utterance made by the victim's girlfriend to the victim's sister, the excited utterance in question was not testimonial and thus its admission did not offend the Confrontation Clause. (People v. Rivera, 8 AD3d at 53). In this case, in contrast to Rivera, the excited utterance in Alexander's third statement was made to a police officer who was then conducting an official investigation into the alleged robbery. As discussed above, and as this case amply demonstrates, there is no categorical rule excluding excited utterances from analysis under Crawford. Instead, each excited utterance must be evaluated on an individual basis to see if it meets the Crawford standard.

Accordingly, because defendant never cross-examined Alexander, the admission at defendant's trial of Alexander's third testimonial statement violated defendant's Sixth Amendment right to confrontation. It is, therefore, necessary to determine whether or not the erroneous admission of this statement warrants the granting of the instant motion seeking the vacation of defendant's conviction.

C. Constitutional Harmless Error Analysis

A violation of the Confrontation Clause is subject to the constitutional harmless error standard. (See Coy v. Iowa, 487 US 1012, 1021 [1988]; People v. Kello, 96 NY2d 740, 744 [2001]; People v. Eastman, 85 NY2d at 276). Under this standard, a constitutional error is harmless only if it is harmless beyond a reasonable doubt. (See Coy v. Iowa, 487 US at 1021; People v. Kello, 96 NY2d at 740; People v. Eastman, 85 NY2d at 276). In determining whether [*18]a constitutional trial error is harmless, courts must assess whether there is any "reasonable possibility that the erroneously admitted evidence contributed to the conviction." (People v. Hamlin, 71 NY2d 750, 756 [1988]).

Here, there was ample evidence aside from Alexander's testimonial statement which established defendant's guilt of the crime beyond a reasonable doubt. Within minutes of the crime, both Alexander, who was admitted to the hospital immediately after the crime with head injuries, and Crespo, his co-worker, identified defendant as the man who had just robbed the restaurant. In addition, defendant was found by the police moments after the crime on the steps of Burger King, carrying a canvas money bag in one hand, and a loaded gun with the safety off, in the other. The police recovered $1038, the exact amount of money stolen from the Burger King, from defendant. Defendant's own testimony at trial corroborated that he was at the crime scene, in possession of the gun, the bank bag, and the money. Furthermore, upon apprehension, defendant threatened the police officers and expressed surprise that they had found him so quickly. This supports the general conclusion that defendant was engaged in criminal activity, and was not innocently waiting for his friend outside the restaurant, as he maintained.

The testimonial statement of Alexander merely provided the jury with additional details of the robbery; it did not fill any gaps in the proof of defendant's guilt. Indeed, a review of the evidence in this case exclusive of Alexander's testimonial statement makes clear that there is no reasonable doubt of defendant's guilt.[FN12] Thus, because there is no reasonable possibility that Alexander's testimonial statement contributed to the verdict, the error in its admission was harmless beyond a reasonable doubt. This is so, notwithstanding the facts that the jury requested a readback of Alexander's statements and the prosecutor relied upon them in summation.

Accordingly, defendant's Crawford claim does not establish, either legally or factually, his entitlement to a new trial. His CPL §440.10 motion based upon that claim is, therefore, denied without a hearing. (CPL §440.30[4][a], [b]).

III. CONCLUSION

For all of these reasons, defendant's motion to vacate his judgment pursuant to CPL §440.10(1)(h) is denied in its entirety, without a hearing.

This opinion constitutes the decision and order of the court.

_____________________________

Marcy L. Kahn, J.S.C.

Dated: November 8, 2004

New York, New York Footnotes

Footnote 1: Alexander did not testify at trial. Crespo testified, but was unable to identify defendant at trial, and his prior identification testimony was admitted pursuant CPL §60.25.

Footnote 2:The discussion of the issues relating to procedural bars under Article 440 have been omitted for publication purposes. (See, People v Charles Watson, NYLJ, Nov. 18, 2004, p. 18, col. 3 [Sup. Ct. N.Y. Co., Nov. 8, 2004]).

Footnote 3:Commencing with its decision in Teague, the Supreme Court has considered at least thirteen new rules of constitutional law and has held that none apply retroactively to cases on collateral review. (See e.g., Beard v. Banks, US , 124 S. Ct. 2504 [2004][rule announced in Mills v. Maryland, 486 US 367[1988], forbidding states from requiring that capital jury find mitigating factors unanimously in sentencing proceeding]; Schriro v. Summerlin, US , 124 S. Ct. 2519 [2004][rule announced in Ring v. Arizona, 536 US 584 [2002], that a sentencing judge may not find an aggravating circumstance necessary for imposition of the death penalty]; O'Dell v. Netherland, 521 US 151, 167 [1997][rule announced in Simmons v. South Carolina, 512 US 154 [1994], requiring that the defendant be able to inform the sentencing jury in a capital case that he is parole ineligible if prosecution argues future dangerousness]; Lambrix v. Singletary, 520 US 518 [1997][rule announced in Espinoza v. Florida, 505 US 1079 [1992], that the sentencing judge weigh aggravating factors against mitigating factors]; Gray v. Netherland, 518 US 152, 170 [1996][notice of evidence rule]; Goeke v. Branch, 514 US 115 [1995][rule providing fugitives with a right to appeal]; Caspari v. Bohlen, 510 US 383, 396 [1994] [rule requiring proof of persistent felony offender status]; Gilmore v. Taylor, 508 US 4333 [1993][rule announced in Falconer v. Lane, 905 F2d 1129 [1990], requiring jury instruction that it could not return a murder conviction if it found a mitigating mental state]; Graham v. Collins, 506 US 461, 478 [1993][requirement that jury be instructed as to mitigating factors]; Sawyer v. Smith, 497 US 227, 241-45 [1990][new rule announced in Caldwell v. Mississippi, 472 us 320 [1985], regarding capital sentencing]; Saffle v. Parks, 494 US 484, 495 [1990] [new rule regarding sentencing in a capital case]; Butler v. McKellar, 494 US 407, 416 [1990] [rule announced in Arizona v. Roberson, 486 US 675 [1988], that Fifth Amendment bars police interrogation following a request for counsel in a separate investigation]; Teague v. Lane, 489 US at 314 [rule in Taylor v. Louisiana, 419 US 522 [1975], requiring that jury be comprised of fair cross-section of the community]).

Footnote 4:The Supreme Court's pronouncement of the retroactivity standard, consistently since at least Russell and continuing through Teague, as well as the New York Court of Appeals' application of it in Eastman, determines the issue of retrospective analysis on a categorical, rather than a fact-specific, basis. (See also cases cited in n.3, supra ). For that reason, I respectfully disagree (in this area fraught with doubt) with the retroactivity analysis of Crawford in People v. Khan, 4 Misc 3d 1003(A), 2004 WL 1463027 (Sup. Ct. Queens Co. 2004).

Footnote 5:The Crawford Court expressed its profound disapproval of the test in Roberts, holding that it "departs from the historical principles" behind the establishment of the Confrontation Clause. (Id. at 1369). The Court found that the Roberts reliability test has failed to serve the purposes of the Confrontation Clause because it is simultaneously too broad and too narrow. (Id. at 1369, 1371-72). The Court held that Roberts' "unpardonable vice" is its "capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude" (Id. at 1371-72), and found its test "inherently, and therefore permanently unpredictable" (Id. at 1374 n.10). The concurring opinion of the Chief Justice in Crawford expressly twice stated that the decision in Crawford had overruled Ohio v. Roberts. (Id. at 1374, 1378). These comments, coupled with the majority's analysis applying the Confrontation Clause's requirements only to testimonial statements, strongly suggest that Roberts has no continuing constitutional significance. (See discussion, infra, at §III.C.1; but see United States v. Saget, 377 F.3d 223, 228 [2nd Cir. 2004] [where challenged statement is non-testimonial, its admission is still to be tested under Ohio v. Roberts and jurisdiction's hearsay rules]).

Footnote 6:Although Berger v. California addressed the retroactive application of a new rule on direct appeal as opposed to collateral review, at the time that Berger v. California and Roberts v. Russell were decided, the retroactivity of any new rule was determined under the Linkletter standard, regardless of when the defendant's conviction became final. (See Linkletter v. Walker, 381 US 618 [1965]; see also Teague v. Lane, 489 US at 301-02 [noting that all cases addressing the retroactive application of a law formerly entailed the application of the Linkletter standard]).

Footnote 7:Some state courts have reached the same conclusion. (See, e.g., People v. Edwards, 2004 WL 1575250 [Ct. App. Colo. July 15, 2004]; People v. Khan, 4 Misc 3d 1003(A), 2004 WL 1463027 [Queens Sup. Ct. 2004]).

Footnote 8:The United States Supreme Court has never issued any decision casting doubt on the validity of the Court of Appeals decision in Eastman, nor has it issued any decision indicating that a rule which is subject to harmless error analysis cannot be considered a watershed rule. Absent contrary controlling authority from the United States Supreme Court, the Court of Appeals' decision in Eastman binds this court. (See generally, People v. Kin Kan, 78 NY2d at 60).

Footnote 9:See, e.g., People v. West, - AD3d -, - NYS2d - , 2004 WL 2472532 (1st Dept. Nov. 4, 2004) (holding that trial court must adhere to authoritative interpretation of federal constitutional requirements by New York Court of Appeals).

Footnote 10:Subsequent to Crawford, lower courts have considered several factors in determining whether a statement that is made to a government official is, in fact, testimonial. For example, courts have considered whether the statement was the result of a formal interrogation by the official. (See People v. Newland, 6 AD3d 330 [1st Dept. 2004][statement not testimonial when not in response to "structured police questioning"]; Brawner v. State, 2004 WL 2025885 [Ga. September 14, 2004][statements made as a result of police questioning testimonial]; Hammon v. State, 809 NE2d 945 [Ind. Ct. App. 2004] [statements made during informal questioning at scene of crime not testimonial]; Fowler v. State, 809 NE2d 960 [Ind. Ct. App. 2004] [same]). Additionally, courts have considered whether it was the government or the civilian witness who initiated the circumstances under which the statement was made. (See State v. Barnes, 854 A2d 208 [2004][statement not testimonial when, among other things, victim went to police station on her own]; People v. Moscat, 3 Misc 3d 739 [Crim. Ct. Bx. Co. 2004] [victim-initiated 911 call, statements to operator not testimonial]; cf. People v. Cortes, 4 Misc 3d at 595[statements made during victim-initiated telephone call to 911 operator always testimonial]). Courts have also examined whether the statements were made with an investigatory or prosecutorial purpose. (See United States v. Saget, 377 F3d 223, 228 [2d Cir. 2004][structured investigative environment among determining factors]); United States v. Saner, 313 F. Supp. 2d 896, 901 [SD Ind. 2004] [statement elicited by prosecutor to gather evidence against defendant testimonial]). Finally, courts have considered whether the declarant was aware that his or her statements may later be used at trial in evaluating whether the statement was testimonial. (See United States v. Saget, supra [declarant's awareness of later use of statement at trial among determining factors]); People v. Moscat, 3 Misc 3d at 745 [911 call made without contemplation of bearing witness not testimonial]; State v. Forrest, 596 SE2d 22 [N.C. Ct. App. 2004][declarant not conscious he was bearing witness; statement not testimonial]; People v. Conyers, 4 Misc 3d 346 [Sup. Ct. Queens Co. 2004][statements made during 911 call to stop assault in progress not testimonial since declarant was not conscious about statement's use in future judicial proceedings]).

Footnote 11:To the extent that defendant may seek to challenge the admission of Alexander's non-testimonial statements on state evidentiary grounds, or under Ohio v. Roberts, supra , assuming, arguendo, the Roberts rule holds any continuing vitality (but see discussion, supra , at n.4 and accompanying text), his claims are procedurally barred, as he could have raised them on his direct appeal, but unjustifiably failed to do so. (See CPL §440.10[2][c]).

Footnote 12:In view of the overwhelming proof at trial, defendant's guilt would have been established beyond a reasonable doubt even in the absence of evidence of any of Alexander's statements.