Opinion
23398/02.
Decided June 16, 2004.
Hon. Dennis Dillon, District Attorney, Mineola, NY, for the People.
Alfredo Johannes, Esq., Bronx, NY, for the Defendant.
This case came before this Court without jury, the defendant having waived his right to the same. Now on for decision are (1) the defendant's motion to strike from evidence the tape of two 911 calls which the People proffered, and which were admitted subject to the defendant's motion; and (2) the defendant's motion to thereupon dismiss made at the close of the People's case.
The defendant is charged with two misdemeanor charges of menacing, in violation of Penal Law § 120.14(1). The defendant asserts that the charges against him are untrue.
The People failed to produce any witness. No explanation for the absence of a witness was offered.
The People offered into evidence an admission albeit an unsworn one made by the defendant.
However, the legislature has prohibited this Court from rendering a guilty verdict based upon the admission alone.
Criminal Procedure Law § 60.50 provides that "[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed."
"[S]uch [additional proof] need not establish guilt or corroborate every detail of the confession [citation omitted]. It may be either direct or circumstantial and does not even have to connect the defendant to the crime [citation omitted]." People v. Guillery, 260 A.D.2d 661 (3rd Dep't), lv. to app. den'd, 93 N.Y.2d 971 (1999). However, this "additional proof" is statutorily required.
In this case, in the absence of testimony from any witness that any crime had in fact ever been committed, the People sought to meet their statutory "additional proof" burden by introducing a tape of two 911 calls. This Court accepted the tape, subject to determination of the defendant's motion to strike.
In Crawford v. Washington, 124 S.Ct. 1354 (2004), the United States Supreme Court, in an opinion by Justice Antonin Scalia, determined that the Confrontation Clause of the Sixth Amendment of the United States Constitution prohibits the admission into evidence of an out-of-court testimonial statement of a declarant against a defendant in a criminal case unless (1) the declarant is present at trial and the defense has an opportunity to cross-examine the declarant, or
(2) the defendant has had a prior opportunity to cross-examine an unavailable declarant. See, People v. Cortes, 2004 N.Y. Slip Op. 24185, 2004 WL 1258018, at *1 (Sup.Ct., Bronx Co.) (Bamberger, J.).
The defendant does not contest that the complaining witness was "unavailable" within the meaning under law of that term, i.e., unable to be located and produced after reasonably diligent efforts. People v. Castro, 291 A.D.2d 292, 293 (1st Dep't), lv. to app. den'd, 98 N.Y.2d 636 (2002); People v. Jules, 2 Misc.3d 1002(A), 2004 WL 396487, at *3 (Crim.Ct., Kings Co.). Conversely, the People do not contend that the defendant played any role through wrongdoing in procuring the unavailability of the complaining witness. See, Crawford, 124 S.Ct. at 1370.
Since in the instant case the defendant has never had the opportunity to cross-examine the declarant, the 911 tape would be admissible only if it (1) were not "testimonial" in nature, and (2) otherwise met the criteria for some exception to the hearsay rule.
Crawford expressly announced that "[w]e leave for another day any effort to spell out a comprehensive definition of `testimonial," 124 S.Ct. at 1374, and acknowledged that "our refusal to articulate a comprehensive definition in this case will cause interim uncertainty." 124 S.Ct. At 1374 fn. 10.
As a result, noted in one comment on the Crawford decision, under Crawford "virtually all of the exceptions to the hearsay rule that permit out-of-court testimonial evidence to be admitted at trial violate the Sixth Amendment . . . State courts will have to examine many of the hearsay exceptions they have come to take for granted . . . Prosecutors and defense attorneys will be presented with a myriad of new evidentiary challenges in light of this decision." Brian MacNamara, Re-Examining New York's Hearsay Exceptions in Light of `Crawford,' N.Y. Law Journal, March 29, 2004, at 4, col. 4.
The early nisi prius cases examining the effect of Crawford on the admissibility of tapes of 911 calls in New York have already come to differing conclusions.
In Cortes, supra, at issue was the admissibility, in an attempted murder trial, of the tape of a 911 call during which the caller yells, "[h]e's killing him, he's killing him, he's shooting him again," and in the end gets off the line with the comment that "I gotta hang up because people, people are gonna think I'm out calling the cops." The caller could not be identified or located to give testimony at trial.
Justice Bamberger, following a thorough and scholarly historical review and analysis, rejected both (1) the suggestion that under Crawford the definition of "testimonial" is "limited to formal documents, affidavits or depositions," and (2) the suggestion that the admissibility of tapes of 911 calls rest on fact-specific scrutiny of each particular call, to determine the purpose of the caller in making the call.
According to Justice Bamberger in Cortes, 2004 WL 1258018, at *12, in view of the fact that they are made to civilian police department employees, result in questioning of the caller, and are routinely recorded, by their very nature "[c]alls to 911 to report a crime are testimonial under the test set out. When a 911 call is made to report a crime and supply information about the circumstances and the people involved, the purpose of the information is for investigation, prosecution, and potential use at a judicial proceeding; it makes no difference what the caller believes." Continued Justice Bamberger in Cortes, 2004 WL 1258018, at *13, "[t]he 911 call in this case was for the purpose of invoking police action and the prosecutorial process. The only use of the statements was for government intervention including judicial proceedings."
However, almost contemporaneously with the decision in Cortes, in, People v. Moscat, 2004 N.Y. Slip Op. 24090, 2004 WL 615113 (Crim.Ct., Bronx Co.) (Greenberg, J.), Judge Greenberg came to the opposite conclusion from Justice Bamberger.
Judge Greenberg in Moscat held, 2004 WL 615513, at * 5, that even after Crawford, for the precise reasons that a statement made during a 911 call might qualify as an "excited utterance," it would "be seen as part of the criminal incident itself, rather than as part of the prosecution," and thus would not be "testimonial" under Crawford. "A 911 call is typically initiated not by the police, but by the victim of a crime. It is generated not by the desire of the prosecution or the police to seek evidence against a particular suspect; rather the 911 call has its genesis in the urgent desire of a citizen to be rescued from immediate peril. . . . A testimonial statement is produced when the government summons a citizen to be a witness; in a 911 call, it is the citizen who summons the government to her aid." Id. A "testimonial" statement, according to Judge Greenberg, is one made where "[a] person . . . gives a formal statement . . . conscious that he is bearing witness, and that his words will impact further legal proceedings." 2004 WL 615113, at *6.
Consequently, Judge Greenberg concluded, 2004 WL 615113, at * 6, "this Court finds that a 911 call for help is not `testimonial' in nature, as that term is used in Crawford; accordingly, it may be received in evidence without offending the Sixth Amendment provided that it meets the requirements for an `excited utterance' or other exception to the hearsay rule." Accord, People v. Conyers, 2004 N.Y. Slip Op. 24166, 2004 WL 1152720 (Sup.Ct., Queens Co.) (Rosenzweig, J.); see also, City of Las Vegas v. Walsh, ___ P.3d ___, 2004 WL 1293893, at *4-*5 (Sup.Ct., Nevada 2004).
This Court, as did the court in Conyers, agrees with and adopts Judge Greenberg's analysis. The law and logic of Cortes have much to recommend them, but this Court is unable to apply them quite so broadly.
Crawford announced that "[t]he unpardonable vice" of the prior authority, which it overruled, was that it permitted the admission into evidence of "core" testimonial statements. 124 S.Ct. at 1370. Crawford then identified those "core" testimonial statements, observing that the term "testimonial" "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." 124 S.Ct. at 1374.
Crawford was at pains to emphasize "that we apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law. . . ." 124 S.Ct. at 1370. "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law. . . ." 124 S.Ct. at 1374.
Rather than reaching out broadly to bring within the ambit of the term "testimonial" statements which are far different than the "core" testimonial statements identified in Crawford, and to therefore remove such categories of statements from the ability of the States to regulate their judicial use, this Court is required to interpret the term reasonably and with restraint.
This Court agrees that at the least, the "excited utterances" identified by Judge Greenberg in Moscat fall outside the reach of Crawford not because they fall within a hearsay exception, but because the characteristics which bring them within this particular hearsay exception negate the characteristics which would be required to make them "testimonial."
The caveat added by Judge Greenberg is significant, however. Judge Greenberg, in Moscat, 2004 WL 615113, at *4, observed that prior to Crawford, a "call for help to 911 would ordinarily be admitted into evidence as an `excited utterance,' provided that the evidence established all the elements of that hearsay exception [citations omitted, emphasis added]. In brief, to qualify a statement as an excited utterance the party offering the statement must show that the declarant was under the stress of excitement caused by an external event sufficient to still the declarant's reflective faculties, thereby preventing opportunity for deliberation. . . . In evaluating whether a statement qualifies as an excited utterance, the court must assess the nature of the startling event, the amount of time that passed between the event and the statement, and whether the nature of the declarant's activities during the interim was such that the declarant had an opportunity to reflect and falsify."
In People v. Vasquez, 88 N.Y.2d 561, 579 (1996), the Court of Appeals affirmed the exclusion from evidence of a 911 tape, holding that "[t]he existence of physical shock or trauma has often been cited as a key consideration," and noting that there "the declarant had suffered only a minor physical trauma, i.e., a bump on the head." Moscat, Conyers, and even Cortes, all involved no physical trauma to the declarant, but did involve what Justice Rosenzweig in Conyers, 2004 WL 1152720, at *3, described as a "life threatening crisis unfolding before the [declarant's] eyes."
In Vasquez, the Court of Appeals observed that "although there was evidence that [the declarant] was very upset . . . the record does not suggest that he was so agitated that he was unable to reflect or fabricate at the time he had made the 911 call." 88 N.Y.2d at 579.
A review of the tape in the instant case which involves charges of not the commission of any act of physical violence itself, but the alleged making of an ultimately unfulfilled implied threat reveals a declarant who displays some agitation, but does not appear from the demeanor of his voice or manner of speaking to be so under stress as to still his reflective faculties. The declarant, while concerned and offended, does not appear to believe himself in imminent danger. The declarant in the initial call declines an invitation to wait for police to arrive. The declarant is sufficiently self-possessed to tell the operator the defendant's name. The declarant acknowledges in both calls that the defendant was not remaining in his presence as any continuing threat. The declarant in fact tells the operator that the defendant is "probably in the book," suggesting that the police can look the defendant up.
This does not in any way minimize the seriousness of the offense charged, or impugn the likelihood of the declarant's veracity. It does, however, indicate that the recorded statement, standing on its own, was not made under such a high degree of excitement as to effectively make it "part of the criminal incident," and entitle the People to prove their case by it without affording the defendant the opportunity for cross-examination of the declarant which Justice Scalia has identified to be of such crucial importance.
Under the circumstances, and on the particular facts of this case, this Court must therefore grant the defendant's motion to strike the 911 tape from evidence.
Since the striking of the tape from evidence leaves the People with no "additional proof" of the commission of the crimes with which the defendant is charged, this Court is statutorily required to grant the defendant's motion pursuant to Criminal Procedure Law § 60.50 to dismiss the charges against the defendant.
So Ordered.