People v. Brown

• Decision Date: 18 February 1993
• Parties: , 610 N.E.2d 369 The PEOPLE of the State of New York, Respondent, v. Michael BROWN, Also Known as Michael Lewis, Also Known as William Brown, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 696

594 N.Y.S.2d 696

80 N.Y.2d 729, 610 N.E.2d 369

The PEOPLE of the State of New York, Respondent, v. Michael BROWN, Also Known as Michael Lewis, Also Known as

William Brown, Appellant.

Court of Appeals of New York.

Feb. 18, 1993.

Proskauer Rose Goetz & Mendelsohn, New York City (Michael A. Freeman, of counsel), and Philip L. Weinstein, William E. Hellerstein and Andrew C. Fine, for appellant.

Robert T. Johnson, Dist. Atty. of Bronx County, New York City (Robert L. Moore and Peter D. Coddington, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

In defendant's trial on burglary and other charges, recordings of two 911 transmissions describing the events in progress were received in evidence against him. His appeal presents a question of first impression in our Court: whether such evidence may properly be admitted under the present sense impression exception to the hearsay rule. For reasons to be explained, we hold that the present sense impression exception is the law in this State and that it was properly applied by the courts below in holding the evidence admissible. Accordingly, the order should be affirmed.

I

Defendant was indicted, tried and convicted after a jury trial for third degree burglary and other crimes in connection with a break-in at a restaurant in the Bronx. The trial evidence, as summarized by Supreme Court in denying defendant's motion to set aside the jury verdict (People v. Brown, 148 Misc.2d 70, 559 N.Y.S.2d 772), was that at about 6:00 A.M. on July 12, 1987, the police received a 911 call reporting a burglary in progress. The caller, who identified himself as "Henry", said that he was observing the break-in from his apartment across the street. He described the perpetrators as "one male black and one male white, wearing a blue t-shirt" (id., at 71, 559 N.Y.S.2d 772). The police, responding to the reported burglary approximately three minutes after the initial 911 transmission, observed two persons run out of the restaurant through a broken glass door and climb up on the roof. One of the officers apprehended a "male black, later identified as defendant, Michael Brown, hiding underneath an air-conditioning duct located on the roof" (id., at 71-72, 559 N.Y.S.2d 772).

Police communications received another 911 call from "Henry" reporting "that one man had been caught but 'the white guy [was still] on the roof' " and "that police backup was needed to catch him" (id., at 72, 559 N.Y.S.2d 772). The other suspect, a white male, was found on the roof and arrested. He was wearing a blue t-shirt.

Over defendant's objection, the tape recordings of the 911 transmissions were received in evidence and played for the jury. It was stipulated that the name and telephone number given by the 911 caller in the transmissions were not correct. After the jury verdict convicting defendant of burglary in third degree, criminal mischief in the third degree and resisting arrest, Supreme Court denied defendant's motion to set aside the verdict.

In its written decision (People v. Brown, 148 Misc.2d 70, 559 N.Y.S.2d 772, supra), Supreme Court concluded that the present sense impression exception was applicable in New York and that the 911 recordings were admissible inasmuch as they were contemporaneous reports of events then being observed by the caller. It also held that corroboration was not a prerequisite for admission, but that the testimony of the police officers who arrived on the scene shortly after the first transmission furnished corroboration, in any event. The court did not find it a bar to admission that the declarant was not identified by name or a participant in events observed.

The Appellate Division affirmed unanimously, citing People v. Luke, 136 Misc.2d 733, 519 N.Y.S.2d 316, affd., 147 A.D.2d 990, 538 N.Y.S.2d 886 and holding that the recordings were properly admitted since "the reliability of the present sense impression, evidenced by the '911' tape recording, was confirmed by the eyewitness observations of police officers, who arrived at the crime scene within moments of the first '911' call" (People v. Brown, 179 A.D.2d 485, 486, 579 N.Y.S.2d 15). A Judge of this Court granted leave to appeal.

II

As generally stated, the present sense impression exception permits a court to admit hearsay testimony of a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter (see, e.g., Fed.Rules Evid., rule 803[1]; Proposed N.Y. Code of Evidence § 804[b][1] [1982]. ¹ The theory of the exception is that a statement describing an event when or immediately after it occurs is reliable because the contemporaneity of the event observed and the hearsay statement describing it leaves no time for reflection. Thus, the likelihood of deliberate misrepresentation or faulty recollection is eliminated (see, Comment of N.Y. Law Rev. Commn., reprinted in Proposed N.Y. Code of Evidence § 804, at 211-212 [1982]; 4 Weinstein and Berger, Weinstein's Evidence, p 803[1][01]. Moreover, such statements are often made under circumstances where some witness has an opportunity to observe and verify all or part of the event described (see, Comment of N.Y. Law Rev. Commn., op. cit., at 211-212 [1982]; 4 Weinstein and Berger, op. cit., p 803[1][01].

Our Court has not adopted the exception and, until the opinions of the courts below in this case, only three New York courts have discussed the issue in reported decisions (see, People v. Watson, 100 A.D.2d 452, 474 N.Y.S.2d 978; People v. Luke, supra; People v. Jardin, 154 Misc.2d 172, 584 N.Y.S.2d 732). ² The rule, however, has been accepted in some form by the majority of States ³ and has now been widely approved by legal commentators (see, e.g., 4 Weinstein and Berger, op. cit., p 803[1][01]; Waltz, The Present Sense Impression Exception to the Rule Against Hearsay: Origins and Attributes, 66 Iowa L.Rev. 869 [1981]; Wohlsen, The Present Sense Impression Exception to the Hearsay Rule: Federal Rule of Evidence 803(1), 81 Dick L.Rev. 347 [1977]; Richardson, Evidence § 285-A, at 125-126 [Prince 10th ed., 1972-1985 Cum.Supp.]; McCormick, Evidence § 298, at 860 [3d ed.]. A notable exception to this general acceptance by legal scholars is the contrary view of Dean Wigmore (see, 6 Wigmore, Evidence § 1757, at 236-240 [Chadbourn rev. ed. 1976]. Dean Wigmore, a proponent of the excited utterance doctrine, opposed the present sense impression rule because, in his view, only a startling event would guarantee trustworthiness; spontaneity and contemporaneity of the declaration, without the shock or excitement from the event, are not sufficient (id., § 1757, at 238; see also, Wohlsen, op. cit., at 351). Defendant notes that this Court, in developing its excited utterance exception to the hearsay rule, has accepted Dean Wigmore's analysis (see, e.g., People v. Brown, 70 N.Y.2d 513, 518, 522 N.Y.S.2d 837, 517 N.E.2d 515; People v. Marks, 6 N.Y.2d 67, 71-72, 188 N.Y.S.2d 465, 160 N.E.2d 26). He argues, therefore, that to be consistent we should follow Wigmore in rejecting the present sense impression exception upon the ground that spontaneity and contemporaneity, without stress of nervous excitement, do not produce the requisite reliability (see, People v. Marks, supra, at 71-72, 188 N.Y.S.2d 465, 160 N.E.2d 26).

The argument is not persuasive. Simply because we have adhered to Dean Wigmore's analysis of the excited utterance exception does not mean that we must endorse his views on other matters. We agree with Professor McCormick and other commentators that shock and excitement from a sudden occurrence should not be the only criteria of admissibility and that a present sense impression exception rule may be devised with sufficient safeguards to assure reliability (see, McCormick, op. cit., § 298, at 860; Wohlsen, op. cit., at 351; Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 236 [1922]. Accordingly, we hold that spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence. Further, such statements may be admitted even though the declarant is not a participant in the events and is an unidentified bystander (see, 4 Weinstein and Berger, op. cit., p 803[1][01], at 803-77).

The remaining questions concern the nature and extent of the corroboration required to assure reliability. To be sure, some textual versions of the present sense impression exception rule require no corroboration at all (see, e.g., Fed.Rules Evid., rule 803[1]; Proposed N.Y. Code of Evidence § 804[b][1] [1982]; Model Code of Evidence, rule 512[a] [1942]; State v. Flesher, 286 N.W.2d 215, 218 [Iowa 1979] [holding that corroboration, or the lack of it, will affect the weight given to the declaration but not its admissibility]. The proponents of this view maintain that the exception itself "offers sufficient assurances of reliability without the superaddition of a further requirement of corroboration" (McCormick, op. cit., § 298, at 862).

Defendant argues that if we are to adopt the present sense impression exception in any form it must be with the strictest corroboration rule--i.e., requiring corroboration at trial by an "equally percipient witness", a witness at the scene who had an equal opportunity to perceive the event and who will be subject to cross-examination as to the accuracy of the declarant's statement. This was the view, defendant notes, of Professor Thayer who was the original advocate of the exception ⁴ and is currently embraced by some courts (see, e.g., State v. Case, 100 N.M. 714, 718, 676 P.2d 241, 245 [1984]; Hewitt v. Grand Trunk W.R.R., 123 Mich.App. 309, 333 N.W.2d 264, 267 [1983]; see also, Waltz, op. cit., at 891-893). If corroboration by an "equally percipient witness" were required in this case, defendant properly...