People v. Arnold

• Citation: 41 A.D.2d 573,339 N.Y.S.2d 583
• Parties: The PEOPLE of the State of New York, Respondent, v. Rodney ARNOLD, Appellant.
• Decision Date: 17 January 1973
• Court: New York Supreme Court Appellate Division

Page 583

339 N.Y.S.2d 583

41 A.D.2d 573

The PEOPLE of the State of New York, Respondent, v. Rodney ARNOLD, Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 17, 1973.

Francis T. Murray, Kingston, for appellant.

Francis J. Vogt, Ulster County Dist. Atty., Kingston (Edward M. P. Greene, Kingston, of counsel), for respondent.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Ulster County, rendered May 12, 1971, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

Appellant was indicted for the murder of Elizabeth Blaustein, whose death occurred on June 1, 1970. On the prior evening, after having dinner at appellant's home, Mrs. Blaustein and appellant went for a ride in her Volkswagen station wagon. Apparently, they were having an illicit relationship even though both were married. At approximately 1:30 A.M. on the next morning Mrs. Blaustein was found slumped over the steering wheel of the station wagon apparently injured. At the scene, she was questioned by John Bennett, a truck driver who had stopped to offer his assistance. Other help was summoned, and Mrs. Blaustein was driven to the Ellenville Community Hospital where she was pronounced dead on arrival. Her death was caused by gunshot wounds. About one hour later, appellant was found by the State Police lying on the front lawn of a home approximately three miles from the place where Mrs. Blaustein's station wagon had been stopped. Appellant had a severe gunshot wound in his head, and was taken to the Kingston Hospital for treatment. Later the State Police found the revolver near the place where appellant was discovered wounded, which revolver apparently had been used to fire the shots that caused the wounds to Mrs. Blaustein and appellant.

At the trial Bennett testified as a witness and stated that Mrs. Blaustein had told him that she wanted to get to a hospital and that she had been shot. Her first response, when he asked her who shot her, was 'I did. Get me to a hospital. I am dying.' However, when he told her she couldn't have shot herself in the back, she answered 'No, my boy friend shot me.'

Appellant contends that the admissibility of the statement by the decedent identifying her 'boy friend' as her assailant was hearsay and constitutes prejudicial error. We agree. There was no foundation that would qualify the statement as part of the Res gestae, a dying declaration, or as a spontaneous statement. Before a dying declaration can be admitted, it must be shown that the decedent believed she was dying and had no hope of recovery and, if, as here, there is a belief that there is the slightest chance of recovery, the statement is inadmissible. (People v. Allen, 300 N.Y. 222, 90 N.E.2d 48.) Before a declaration can be admitted as a spontaneous statement, the utterance must spring spontaneously and instinctively from the stress and excitement caused by the act...