People v. Almonte
| Decision Date | 27 June 2019 |
| Docket Number | No. 57,57 |
| Citation | 33 N.Y.3d 1083,130 N.E.3d 873,106 N.Y.S.3d 277 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Emmanuel ALMONTE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division should be affirmed.
Supreme Court properly denied defendant's request to charge the jury on the lesser included offense of assault in the third degree ( Penal Law § 120.00[1] ). Defendant failed to "show that there [was] a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser included offense but not the greater" ( People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014] ). Although "[i]n determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to [the] defendant" ( People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 [1983] ), charging the lesser included offense here "would [have] force[d] the jury to resort to sheer speculation" ( People v. Discala, 45 N.Y.2d 38, 43, 407 N.Y.S.2d 660, 379 N.E.2d 187 [1978] [citations omitted]; see Rivera, 23 N.Y.3d at 121, 989 N.Y.S.2d 446, 12 N.E.3d 444 ).
Nor does Supreme Court's admission of the call between the victim and the 911 operator require reversal. "A ‘spontaneous declaration or excited utterance—made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant’ is an exception to the prohibition on hearsay" ( People v. Cummings, 31 N.Y.3d 204, 209, 75 N.Y.S.3d 484, 99 N.E.3d 877 [2018], quoting People v. Edwards, 47 N.Y.2d 493, 496–497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 [1979] ). "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 power to be yet in abeyance’ " ( People v. Brown, 70 N.Y.2d 513, 517, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987], quoting People v. Marks, 6 N.Y.2d 67, 72, 188 N.Y.S.2d 465, 160 N.E.2d 26 [1959] ; see also People v. Nieves, 67 N.Y.2d 125, 135, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986] ). Assuming, without deciding, that it was error to admit the 911 call, any such error would have been harmless (see People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] ; People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Finally, defendant's contention regarding the continued viability of the excited utterance exception to the hearsay rule is not preserved for appellate review.
Defendant Emmanuel Almonte challenges his convictions for second-degree robbery, second-degree assault, and attempted first-degree assault on the grounds that the trial court failed to properly charge the jury on a lesser-included count of assault and erroneously admitted the victim's out-of-court statements under the excited utterance exception to the rule against hearsay. The People's case rested upon the victim's testimony that defendant and codefendant stole his cell phone during a beating at gunpoint.1 The jury—as the factfinder—was entitled to accept or reject all or part of that testimony, based on the credibility determinations it made and the inferences it drew from the properly admitted evidence. Then, in accordance with the trial court's instructions, the jury should have applied the law to its factual determinations to reach a verdict on all the criminal counts appropriately submitted by the court. That did not happen here because the jury was not given an opportunity to consider all the verdict options mandated by law and the jury heard inadmissible evidence that bolstered the victim's testimony. Therefore, I would reverse the Appellate Division order because defendant is entitled to a new trial on the assault counts.
The People's case turned on the credibility of the sole eyewitness to the robbery and assault, victim JC. At trial, JC testified that he knew both defendant and codefendant personally for years: he had attended the same middle school as defendant and knew codefendant from high school. He then recounted how these two young men attacked him one night in the stairway outside his apartment.
JC testified that defendant's cousin responded to an advertisement JC had posted to social media offering to sell a pair of popular sneakers for $500. Around 11:00 pm, JC texted the cousin, agreeing to sell him the sneakers that night. The cousin replied that "his cousin" would come to JC's home to pick up the sneakers. At approximately midnight, JC heard his doorbell. He testified that he had a "gut feeling" that something was wrong. Though he had agreed to the late-night sale and could not explain why he felt uncomfortable, he exited the apartment without the sneakers.
As soon as JC walked out the door of his apartment, he saw defendant and codefendant come at him from the stairway above his apartment and attack him at gunpoint. JC said he had an unobstructed view of the attackers' faces, that codefendant struck him on the back of the head with a gun, and that this caused him to fall onto the stairs. Defendant and codefendant then kicked him, and defendant took JC's cell phone out of his pants pocket. According to JC, as the assault continued, he grabbed the handrail of the stairway, at which point, defendant kneed him in his face, codefendant hit him in the head with the gun again, and they dragged him down the staircase. In an effort to escape, JC threw himself down the stairs towards the lobby, and tried to jump over the railing. As he held onto the railing, defendant punched his legs. JC then pleaded with defendant and codefendant not to kill him and offered to get the sneakers. Defendant and codefendant then walked JC back upstairs to his apartment at gunpoint. When JC rang the doorbell, his sister answered. JC and his sister yelled at each other and she closed the door. At some point after hearing JC's mother's voice from inside the apartment, the attackers dragged JC back down towards the area between the lobby and the second floor. JC testified that he again pleaded with his assailants and told them he would get the sneakers. However, after JC's mother opened the door and yelled downstairs, the attackers fled.
JC testified that at this point he was bleeding from his head. In response to the prosecutor's question "do you know when, at what point, you got these cuts on your head?" JC answered, "at the point right when it happened, when I got pistol-whipped against the pole and I got kneed on my head by [defendant] and when [codefendant] comes again to get me off the rail hits me again with the gun." JC stated he was hit with the gun a total of three times.
After the attackers left, JC ran back up to the apartment. When his mother opened the door and saw him, she screamed because she saw he was covered in blood. "Right after [this]" his sister phoned 911. JC testified that he was in the bathroom cleaning himself and speaking with his mother while his sister spoke to the 911 operator.
The audio recording of this call was played for the jury. On the recording, the sister tells the dispatcher that "some guys" put a gun to her brother's head and that he is bleeding. When the dispatcher asks if they tried to rob JC, the sister can be heard asking "they take anything from you?" and after a pause responds to the dispatcher "No." The sister also initially told the dispatcher that her brother was shot, but moments later said she did not know why her brother was bleeding. JC testified that he did not talk to his sister while she was on the phone and that he did not tell her he was shot, because "better off she didn't understand what was going on with the situation." He did admit that he was talking to his mother during this call.
Within a couple of minutes, the dispatcher called back, and JC answered. In the recording of this call, which was played for the jury over defendant's objection, JC is heard in quick succession responding to a series of questions.
Defendant and the People do not dispute the trial court's factual finding that the incomprehensible voice in the background throughout the call is JC's mother yelling.
During JC's testimony, the prosecutor played the building's surveillance video. The video is poor quality and does not capture the entire stairwell where the attack occurred. To the extent human images are visible, they are difficult to discern and to interpret. However, JC testified that the...
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