Opinion
12-31-2015
The PEOPLE of the State of New York, Respondent, v. Nathaniel MOORE, Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York City (Michael McLaughlin of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York City (Michael McLaughlin of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Evelyn J. Laporte, J.), rendered March 26, 2013. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree. ORDERED that the judgment of conviction is affirmed.
Defendant was charged, in a prosecutor's information, with attempted assault in the third degree (Penal Law §§ 110.00, 120.00[1] ), attempted criminal obstruction of breathing or blood circulation (Penal §§ 110.00, 121.11[a] ), menacing in the third degree (Penal Law § 120.15), and harassment in the second degree (Penal Law § 240.26[1] ), based on allegations that defendant had beaten and choked his female companion. At a nonjury trial, the arresting officer testified that, while on motor patrol, she was flagged down by the victim, who was “crying, bleeding from the left side of her face, ... highly upset,” and exhibiting “bruising and swelling.” The officer asked her “what was wrong,” whereupon the victim “pointed to the defendant,” who stood nearby among a crowd of onlookers, and stated that he had “assaulted” her. The victim's statement was received into evidence, over objection, under the excited utterance exception to the hearsay rule. After photographs of the victim, taken shortly after the incident by the arresting officer, were admitted without objection, the People rested their case, noting that the victim, having apparently left the District Attorney's jurisdiction, would not testify. The defense moved for a trial order of dismissal, arguing that the victim's statement that defendant had “assaulted” her was “ conclusory,” that the People's failure to establish the time between the incident and the victim's statement rendered it inadmissible as an excited utterance, and that, without the statement, the People's proof was legally insufficient. The Criminal Court reserved decision on the motion, and the defense rested without presenting a case. Without ruling on the motion, the court convicted defendant of attempted assault in the third degree and acquitted defendant of the remaining charges. On appeal, defendant raises the arguments made in support of the dismissal motion, adding that, even if the victim's statement was properly admitted, the proof was legally insufficient to establish defendant's intent to commit the offense, and, if legally sufficient, the conviction was against the weight of the evidence.
An excited utterance results from “the stress of excitement caused by an external event sufficient to still ... reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful” (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 [1979]; see also People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003] [an excited utterance is one made “under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection”], quoting People v. Marks, 6 N.Y.2d 67, 71, 188 N.Y.S.2d 465, 160 N.E.2d 26 [1959] ). It is “[t]he spontaneity of the declaration [that] guarantees its trustworthiness and reliability” (People v. Cantave, 21 N.Y.3d 374, 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257 [2013] ). The trial courts are accorded “wide discretion” in determining whether the standard of admissibility of such statements has been met, and their rulings “should not be disturbed on appeal” absent an abuse of that discretion (People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000] ). There is no dispute as to the victim's “agitated or stressed condition” at the time of the statement, and it cannot be said that the exception is inapplicable because it was uttered in response to a question (Edwards, 47 N.Y.2d at 498–499, 419 N.Y.S.2d 45, 392 N.E.2d 1229; People v. Gantt, 48 A.D.3d 59, 64, 848 N.Y.S.2d 156 [2007] ), which is “merely” a factor bearing on the analysis of a statement's admissibility (People v. Brown, 70 N.Y.2d 513, 519, 522 N.Y.S.2d 837, 517 N.E.2d 515 [2011]; see e.g. People v. Fratello, 92 N.Y.2d 565, 570–571, 684 N.Y.S.2d 149, 706 N.E.2d 1173 [1998] ). Here, the challenge to the statement is based principally on the lack of evidence as to the precise time that elapsed between the attack and the accusation, which, defendant contends, renders the foundation proof insufficient to establish that the victim spoke with genuine spontaneity, uninfluenced by “the impetus of studied reflection” (Edwards, 47 N.Y.2d at 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229). Addressing this factor, the Johnson court stated:
“As we have several times noted, there can be no definite or fixed period of time within which the declaration must have been made, and each case must depend upon its own circumstances. The test is whether the utterance 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' (People v. Brown, 70 N.Y.2d 513, 518, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987] ).... Ultimately, the time for reflection is not measured in minutes or seconds, but rather is measured by facts' (People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ).... [T]he test [is] ... whether the declarant is capable of studied reflection and therefore capable of fabrication” (1 N.Y.3d at 306–307, 772 N.Y.S.2d 238, 804 N.E.2d 402; see also People v. Cotto, 92 N.Y.2d 68, 79, 677 N.Y.S.2d 35, 699 N.E.2d 394 [1998] ).
Thus, the failure precisely to establish the time that elapsed between an incident and a statement does not, standing alone, require that the statement be deemed inadmissible (see People v. Smith, 170 A.D.2d 548, 548, 566 N.Y.S.2d 96 [1991]; People v. Valentine, 40 Misc.3d 28, 31, 969 N.Y.S.2d 718 [App.Term, 2d, 11th & 13th Jud.Dists.2013] ). The officer's account of her initial encounter with the victim, the credibility of which is not questioned, permits the inference that the victim was fleeing the scene of an incident that had occurred shortly before, for example, to obtain medical attention, or protection from her assailant who stood nearby among a crowd of onlookers. Further, the injuries exhibited by the victim, most tellingly, a wound from which she was still bleeding, do not support defendant's assertion that there may well have been “a significant lapse of time between the (statement) and the startling event” (People v. Smith, 48 A.D.3d 298, 299, 851 N.Y.S.2d 502 [2008]; see People v. Livrieri, 125 A.D.3d 579, 579, 6 N.Y.S.3d 5 [2015] [911 tape “reveals that the victim was in an agitated state and was still operating under the influence of defendant's attack, notwithstanding intervening events”]; People v. Sykes, 26 A.D.3d 203, 203, 812 N.Y.S.2d 468 [2006] [while there was no testimony as to the time interval between the incident and the statement by a nontestifying parking garage attendant that two cars had been stolen at gunpoint, “the evidence, including testimony as to the declarant's demeanor, supported the conclusion that the robbery had just occurred and that the declarant was still under the influence of the stress of the incident”]; People v. Johnson, 272 A.D.2d 555, 555, 709 N.Y.S.2d 96 [2000] [statement of the victim who “flagged down a police vehicle” to report that he had just been robbed and who appeared “ nervous” and “shocked” was properly admitted because “the delay between the robbery and the declarations ... was not sufficient to destroy the indicia of reliability upon which this hearsay exception rests”] ). Certainly, there appears to be less time involved than the 10 to 15 minutes of driving through traffic by the victim, between an attack and her statement to relatives, which was held in People v. Auleta, 82 A.D.3d 1417, 1419, 919 N.Y.S.2d 222 (2011) to not preclude, based on the victim's agitated state, a finding that her accusation was an excited utterance. Similarly, in People v. Hayes, 21 Misc.3d 131(A), 2008 N.Y. Slip Op. 52089(U), *1, 2008 WL 4648260 (App.Term, 1st Dept.2008), a statement was deemed an excited utterance notwithstanding that the incident occurred “within the previous 15 minutes at a location approximately 20 blocks away” from the scene of the statement. Thus, upon the available facts, it cannot be said that the Criminal Court abused its discretion when it ruled that the victim's statement herein was admissible pursuant to the excited utterance exception to the hearsay rule.
We also find that the evidence was legally sufficient to support the verdict. Defendant does not challenge the sufficiency of the proof to establish the victim's injuries. Defendant argues, rather, that the proof is insufficient to establish his specific intent to assault the victim as opposed to having acted negligently or recklessly. Here, there are no admissions and no direct proof of conduct, only the physical trauma suffered by Ms. Phillips and her claim that defendant “assaulted” her, by which, she clearly meant, not the technical legal meaning of the term but simply that defendant had attacked her, and by inference, caused that physical trauma. Further, given that an excited utterance is admissible because the circumstances of the statement provide indicia of truthfulness and reliability, and viewing that evidence in the light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we find that the proof was legally sufficient to support an inference that it was defendant who caused those injuries. Where, as here, there is “no direct evidence of ... defendant's mental state” (People v. Smith, 79 N.Y.2d 309, 315, 582 N.Y.S.2d 946, 591 N.E.2d 1132 [1992] ), “[t]he intent to cause physical injury may be inferred from the conduct itself and the surrounding circumstances” (People v. Johnson, 47 Misc.3d 152[A], 2015 N.Y. Slip Op. 50796[U], *2, 2015 WL 3369858 [App.Term, 2d, 11th & 13th Jud.Dists.2015]; see also People v. Rodriguez, 17 N.Y.3d 486, 489, 933 N.Y.S.2d 631, 957 N.E.2d 1133 [2011]; People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977]; People v. King, 85 A.D.3d 820, 820, 925 N.Y.S.2d 561 [2011] ). As an inference is permitted that a person intends the natural consequences of his or her acts (People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425 [1980] ), proof of conduct and the physical consequences thereof, that is, that it was defendant who caused the injuries in a manner that the victim considered an “assault” and the nature of the injuries caused, suffices to establish the intent element of attempted assault in the third degree, even though the trial evidence did not establish precisely how the injuries were inflicted (compare Matter of Eric C., 281 A.D.2d 543, 544, 722 N.Y.S.2d 61 [2001], with Matter of Wanji W., 277 A.D.2d 243, 244, 716 N.Y.S.2d 676 [2000]; see also People v. Williams, 42 Misc.3d 149[A], 2014 N.Y. Slip Op. 50400[U], *1, 2014 WL 1096620 [App.Term, 2d, 11th & 13th Jud.Dists.2014]; People v. Whatts, 116 A.D.3d 456, 457, 983 N.Y.S.2d 253 [2014]; People v. Johnson, 47 Misc.3d 152[A], 2015 N.Y. Slip Op. 50796[U], *2; Matter of Shakura J., 4 Misc.3d 1017[A], 2004 N.Y. Slip Op. 50925[U], 2004 WL 1878235 [Fam.Ct., N.Y. County 2004] ). The victim's excited declaration, which may be presumed truthful, and her objective physical condition which included both her agitated state and her multiple wounds, one still bleeding, sufficed to establish defendant's guilt of attempted assault in the third degree. It is noted that “the testimony of a single witness [is] sufficient to support a conviction” (People v. Arroyo, 54 N.Y.2d 567, 578, 446 N.Y.S.2d 910, 431 N.E.2d 271 [1982] ) absent “hopeless contradictions ... [which] make [ ] his or her testimony incredible or unreliable as a matter of law” (People v. Calabria, 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257 [2004] [internal quotation marks and citation omitted] ). Accordingly, even where the testimony of the sole witness involves an excited utterance by a nontestifying declarant, the legal sufficiency of the proof is not thereby necessarily impaired (see People v. Fratello, 92 N.Y.2d at 572–573, 684 N.Y.S.2d 149, 706 N.E.2d 1173 [“excited utterance” identification of the defendant, by the nontestifying victim to witnesses, as the person who shot him sufficient to support a conviction]; People v. Bradley, 22 A.D.3d 33, 43, 799 N.Y.S.2d 472 [2005], affd. 8 N.Y.3d 124, 830 N.Y.S.2d 1, 862 N.E.2d 79 [2006] [extrajudicial “excited utterance” by nontestifying declarant to investigating officers that it was the defendant who threw her through a glass door causing wounds observed by investigating officers, sufficient] ).
Defendant further notes that where a defendant is acquitted of charges that are based on a theory of facts upon which a factfinder necessarily relied to convict on other charges, the propriety of the convictions may thereby be cast into doubt (see e.g. People v. Fisher, 104 A.D.3d 868, 869, 963 N.Y.S.2d 122 [2013]; People v. Flint, 42 Misc.3d 144[A], 2014 N.Y. Slip Op. 50303[U], *1, 2014 WL 887368 [App.Term, 1st Dept.2014]; People v. Scott, 16 Misc.3d 40, 41, 841 N.Y.S.2d 829 [App.Term, 1st Dept.2007] ). Here, the Criminal Court acquitted defendant of attempted criminal obstruction of breathing or blood circulation, menacing and harassment, but those acquittals were not, as in the cases cited by defendant, necessarily “conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered” (People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981] ).
Finally, upon the exercise of our factual review power (CPL 470.15 [2]; see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we find that the verdict was not against the weight of the evidence, in view of the officer's entirely credible testimony as to the victim's accusation that defendant attacked her and of the victim's appearance and demeanor, coupled with the photographic evidence of the victim's physical condition after the attack.
Accordingly, the judgment of conviction is affirmed.