People v. Brown
| Decision Date | 07 December 1989 |
| Parties | The PEOPLE of the State of New York v. Michael BROWN. |
| Court | New York Supreme Court |
Robert Johnson, Dist. Atty. by Asst. Dist. Atty. Cindy Zamzok, for the people.
Stuart London, of Rye Brook, for defendant Michael Brown.
Upon the foregoing papers, this motion is decided as follows:
This motion for an order setting aside a jury verdict against the above-named defendant is denied. This court finds that there are no grounds appearing in the moving papers which constitute legal basis for the motion (See CPL 330.40(2)(d)(i)). A trial court is authorized to set aside a verdict if a ground appears in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court (See CPL 330.30(1)). A trial judge is empowered to set aside a verdict of guilty, upon the law, based on a determination that a ruling or instruction of the court, duly protested by the defendant at a trial resulting in a judgment, deprived defendant of a fair trial; or that the trial evidence was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted (See CPL 470.15(4)(a) and (b)).
The motion is brought on the ground that the court erred in admitting into evidence a tape recording of two telephone conversations between a police 911 operator and a witness to a burglary in progress.
On Sunday July 12, 1987 at approximately 6:00 a.m., police communications received a 911 call from a witness to a burglary in progress at Alex and Henry's Catering House located at 862 Cortland Avenue, Bronx County. The caller, who identified himself as "Henry" and gave a phone number, stated 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.
Within minutes, Police Officers Henderson and Rosado responded to a radio-run transmitted about a break-in at the restaurant. After Officers Henderson and Rosado observed nothing unusual, Police Officers Antonio Echevestre and James Fox arrived, pulled into the Exxon station adjacent to the restaurant and spotted a broken glass door with two males running out of it. Officers Henderson and Echevestre climbed over a 12 foot black metal gate and wall which separated the restaurant and the Exxon station, as the perpetrators ran up to the roof of the one story restaurant. Officer Echevestre ascended a ladder leading to the roof while Officer Henderson remained below. Officer Echevestre came upon the male black, later identified as defendant, Michael Brown, hiding underneath an air conditioning duct located on the roof. Officer Echevestre told defendant to stand up and get off the roof. Defendant refused and a struggle ensued. Officer Echevestre shoved defendant off the roof and he fell on top of Officer Henderson. As defendant struggled with Officer Henderson, Officer Echevestre jumped down to help secure defendant with rear cuffs. Defendant was then placed face down in the middle of the yard between the black metal gate and the broken glass door.
Police communications received another call from "Henry" who indicated that one man had been caught but "the white guy [was still] on the roof." The caller stated that police backup was needed to catch him. Officers Henderson and Echevestre went up to the roof to find the other perpetrator. Officer Henderson apprehended co-defendant Robert O'Donald, who was wearing a blue t-shirt. He rear-cuffed him and then cuffed him to the black metal gate. Meanwhile Officer Echevestre noticed defendant's disappearance from the yard. Officer Echevestre climbed down from the roof and asked about defendant's whereabouts. Officers Echevestre and Henderson broke out the remaining glass in the broken door and went inside the restaurant to search for the defendant. NYPD Emergency Services was called in. Emergency Service broke the lock on the black metal gate, entered the premises and began to search. Officer Echevestre found Emergency Service with the defendant in the basement. Officer Echevestre brought the defendant outside to the marked patrol car where he observed no injuries to the defendant. Defendant and co-defendant were then taken to the precinct.
"Henry" was an unavailable declarant at trial. During his call to the 911 operator he gave an unverifiable name and phone number. The police sent police officers to the only building he could have called from in an effort to locate him. They also called the number he gave, but "Henry" was never found.
At trial, the People moved to admit the taped telephone calls, placed by "Henry", into evidence as a present sense impression exception to the hearsay rule. After defendant's objection, the court admitted the tape which was then played for the jury. Defendant was subsequently convicted of Burglary in the Third Degree, Criminal Mischief and Resisting Arrest on June 2, 1988.
The tape was properly received into evidence as a present sense impression exception to the hearsay rule, as provided for in the common law rule articulated in McCormick on Evidence, 3d edition (1984); as also cited in People v. Luke, 136 Misc.2d 733, 519 N.Y.S.2d 316 (1987), aff'd 147 A.D.2d 989, 538 N.Y.S.2d 886 (1st Dept.1989); and as set forth in the Federal Rules of Evidence § 803(1) and the Proposed Code of Evidence for the State of New York § 803(1).
The present sense impression exception has long been accepted in other jurisdictions. (See Evans v. State, 547 So.2d 38 (Miss.1989); People v. Verburg, 170 Mich.App. 490, 430 N.W.2d 775 (1988) Lv. den. 442 N.W.2d 137 (1989); State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988); Hunt v. State, 312 Md. 494, 540 A.2d 1125 (1988); Stumpf v. State, 749 P.2d 880 (Alaska App.1988) Cert. den. --- U.S. ----, 109 S.Ct. 2075, 104 L.Ed.2d 639 (1989); State v. Zinn, 106 N.M. 544, 746 P.2d 650 (1987); State v. Comeau, 531 A.2d 290 (Me.1987) Booth v. State, 306 Md. 313, 508 A.2d 976 (1986).
The exception was first proposed by Harvard Law Professor Thayer in 1881 during his review of the "res gestae" case which encompasses statements of (1) Present bodily condition (2) present mental states and emotions (3) excited utterances and (4) present sense impressions. See Thayer, Bedingfield's Case-Declarations as a Part of the Res gestae, 15 Am.L.Rev. 1 (1881). He articulated it as statements made "... near in time to that which they intend to prove ...", describing what was "... then present or just gone by ..." 81 Dick.L.Rev. 347, 350. The trustworthiness of such statements were based on their contemporaneous relationship with the event being described. Conversely, Dean Wigmore, who wrote considerably on the concept of res gestae, believed that only a startling event could produce a trustworthy statement. See 6 Wigmore, Evidence § 1747 (Chadborn rev. 1976). Presently, however, it is generally accepted that excitement impairs sensory perception and produces less accurate statements. Thus, present sense impressions are found to be more reliable than excited utterances. While New York has not expressly recognized the present sense impression exception by statute, it was suggested that it be adopted to complement...
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