Opinion
September 29, 1986
Appeal from the Supreme Court, Kings County (Mirabile, J.).
Judgment affirmed.
The trial court properly excluded police records of a 911 telephone call made by the defendant to the police in which the defendant claimed that the deceased had been shot by an unidentified male. In order for proof to qualify for admission into evidence under the business record exception to the hearsay rule (CPLR 4518 [a]), it must be demonstrated that the declarant was under a duty to report the occurrence to the entrant (see, Cover v Cohen, 61 N.Y.2d 261; Matter of Leon RR, 48 N.Y.2d 117; Johnson v Lutz, 253 N.Y. 124; Liberto v Worcester Mut. Ins. Co., 87 A.D.2d 477). The defendant was under no duty to report the shooting to the police and the police records were properly excluded.
Furthermore, the defendant's statement did not fall within the spontaneous declaration exception to the hearsay rule. The defendant's telephone call to the 911 operator was received at least five minutes after the shooting. Thus, when the defendant made his statement to the 911 operator he had had the time to reflect and possibly fabricate a story (see, People v Edwards, 47 N.Y.2d 493; People v Sostre, 70 A.D.2d 40, affd 51 N.Y.2d 958; cf. People v Matos, 107 A.D.2d 823).
Finally, the defendant's guilt was proved beyond a reasonable doubt (see, People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932; People v Contes, 60 N.Y.2d 620). Mollen, P.J., Lazer, Mangano and Lawrence, JJ., concur.