People v. Buie

• Citation: 634 N.Y.S.2d 415,658 N.E.2d 192,86 N.Y.2d 501
• Parties: , 658 N.E.2d 192, 64 USLW 2320 The PEOPLE of the State of New York, Respondent, v. Willie BUIE, Appellant.
• Decision Date: 26 October 1995
• Court: New York Court of Appeals

Page 415

634 N.Y.S.2d 415

86 N.Y.2d 501, 658 N.E.2d 192, 64 USLW 2320

The PEOPLE of the State of New York, Respondent, v. Willie BUIE, Appellant.

Court of Appeals of New York.

Oct. 26, 1995.

[86 N.Y.2d 502] [658 N.E.2d 193] Edward J. Nowak, Public Defender of Monroe County, Rochester (Stephanie Batcheller of counsel), for appellant.

[86 N.Y.2d 503] Howard R. Relin, District Attorney of Monroe County, Rochester (Robert Mastrocola of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

Defendant appeals by leave of a Judge of this Court from an order affirming his conviction, after a jury trial, of burglary and related offenses. The evidentiary law question is whether the admission of a 911 tape under New York's present sense impression hearsay exception, where the declarant was available and testified at trial, improperly "bolstered" that victim-witness's testimony. We hold first that the declarant's availability at trial does not preclude the admissibility of the tape under that hearsay exception (see, People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369) and that its admission did not constitute improper bolstering in this case.

I.

This case arises out of a break-in at a private home in Rochester in the early morning hours of April 18, 1992. The sound of breaking glass awakened the homeowner, who immediately dialed 911 on his cellular telephone and described the unfolding events to the operator. Under standard practice, the call was recorded and preserved, and the integrity of the tape is not in issue.

While speaking to the operator, the owner left his house and saw a figure also departing and carrying the owner's black briefcase, which contained his camera equipment, all of which had been inside the house moments earlier. The owner described the burglar's features with great particularity. He added that the perpetrator was wearing dark gray or dark green, mid-length, solid-colored, baggy shorts, a white T-shirt, white socks, and white sneakers. This description essentially matched that of the defendant at the time of his arrest, shortly after the break-in.

After leaving the house, the burglar was followed by the owner, who kept talking on his cellular telephone. The burglar got to the main road and then began to run. The owner briefly lost sight of him, but spotted the black briefcase a short distance down the road, next to a driveway leading to a neighbor's open garage. At that point, two police officers arrived and quickly found the perpetrator lying down in a car inside the neighbor's garage. He was perspiring and his T-shirt was bloody. The owner identified him to the police as the man who had broken into his home. The police investigation noted a broken window at the owner's home, and a stain taken from the wall next to that window tested positive for human blood.

At trial, when asked to identify the person who broke into his home, the owner inexplicably did not point to the defendant, but instead identified the deputy sitting next to the defendant. The trial court allowed the victim to testify about his prior identification of the defendant to the police, both before and after the in-court misidentification. That is not in issue here. The court also precluded the police officers from referring to the victim's prior identification at the scene, and that is also not in issue. Both arresting officers testified that they arrested the defendant in the garage in the presence of the owner and that is the subject of an unpreserved Trowbridge-type bolstering claim (People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841; see also, C.P.L. 60.25, 60.30).

The essence of the controversy before us revolves around the trial court's admission, over a defense objection, of the four-minute tape of the burglary victim's conversation with the 911 operator. The tape ended shortly before the events that took place at the neighbor's garage when the police arrived. In a pre-trial ruling, the court stated that it would allow the evidence in under the present sense impression exception to the hearsay rule. At trial, the evidence was not objected to as such, but rather, defendant's objection was based on the availability of the witness to testify and a claimed impermissible "bolstering" of the witness through the use of his prior, consistent, recorded statement. Defendant was convicted on all counts.

The Appellate Division unanimously affirmed, with two Justices concurring separately. The majority held that because the victim-witness was available, the confrontation concerns associated with unavailable witnesses were not implicated. Rather, though it found no error, it saw a potential problem in the bolstering of the victim's testimony by admitting a prior consistent recorded statement. The Court's view, with which we agree, was that the evidence was properly admitted because it "did more than mimic the in-court testimony of the owner" (201 A.D.2d 156, 160, 615 N.Y.S.2d 794). It stated that the tape "gave the jury a temporal and auditory sense of the events" and, thus, "should not be viewed in the same light as a prior consistent written statement" (id.). The two concurring Justices stated that because the witness was available, there was no "pressing need" for the evidence and it should not have been admitted (id., at 163, 615 N.Y.S.2d 794). They further stated that in all cases, the present sense impression exception should be employed only when the declarant is unavailable. The concurring Justices joined the Court to affirm, however, on harmless error grounds.

II.

The 911 tape is hearsay, as an out-of-court statement admitted for the truth of the matter asserted (see, People v. Caviness, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496; Prince, Richardson on Evidence § 8-101, at 497 [Farrell 11th ed. 1995]. The purpose of presenting the tape to the jury was to prove the unfolding events described in the burglary victim's contemporaneously recorded narrative.

This Court recently adopted the present sense impression exception to the rule against hearsay as the law in New York (People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369, supra ). Brown presented a similar situation with a different twist, in that the evidence at issue there was a 911 tape of a bystander's description of the perpetrators of a burglary where the declarant was not fully identified and, therefore, not present or available to testify. In holding that the admission of the tape was proper, the Court added that "spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence" (id., at 734, 594 N.Y.S.2d 696, 610 N.E.2d 369). The corroboration aspect is not in issue in this case.

We left open in Brown, however, the question of whether a declarant must be unavailable before present sense impression evidence is admissible. Defendant in this case argues that dictum in a footnote in Brown signalled this Court's preference for an unavailability requirement and, in any event, such a threshold is necessary to ensure the evidence's trustworthiness (Peoplev Brown, supra, at 732, 594 N.Y.S.2d 696, 610 N.E.2d 369, n. 1).

We hold that the present sense impression exception does not require a showing of the declarant's unavailability as a sine qua non to admissibility, though that factor may be weighed by Trial Judges in assessing the traditional probativeness versus undue prejudice calculus for allowing evidence before a petit jury.

A fundamental precept of the law of hearsay is that certain exceptions require that the proponent of the evidence prove the declarant's unavailability as a witness at trial, while other exceptions treat availability as immaterial (4 Weinstein and Berger, Weinstein's Evidence p 804[a][01], at 804-40--804-41 [1995]; 2 McCormick, Evidence § 253, at 130 [4th ed. 1992]; Proposed N.Y.Code of Evidence §§ 803, 804 [1980, 1982, 1991]. For example, unavailability is not required for certain exceptions, such as the business records exception (see, CPLR 4518; Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 396-397, 34 N.E.2d 367; People v. Klein, 105 A.D.2d 805, 806, 481 N.Y.S.2d 743, aff'd 65 N.Y.2d 613, 491 N.Y.S.2d 155, 480 N.E.2d 744), the excited utterance exception (see, People v. Caviness, 38 N.Y.2d 227, 232, 379 N.Y.S.2d 695, 342 N.E.2d 496, supra; Fisch, New York Evidence § 1000, at 577 [2d ed. 1977], and the exception for official entries (see, CPLR 4520; Fisch, op. cit., § 953, at 550). On the other hand, a declarant's unavailability is a prerequisite to the admission of statements under several other hearsay exceptions, including the declaration against penal interest (see, People v. Thomas, 68 N.Y.2d 194, 197, 507 N.Y.S.2d 973, 500 N.E.2d 293; People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Brown, 26 N.Y.2d 88, 91, 308 N.Y.S.2d 825, 257 N.E.2d 16), the exception for former testimony (see, C.P.L. 670.10; People v. Ayala, 75 N.Y.2d 422, 428, 554 N.Y.S.2d 412, 553 N.E.2d 960, rearg. denied 76 N.Y.2d 773, 559 N.Y.S.2d 986, 559 N.E.2d 680; People v. Arroyo, 54 N.Y.2d 567, 570, 446 N.Y.S.2d 910, 431 N.E.2d 271, cert. denied 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855), and the exception for statements of pedigree and family history (see, Aalholm v. People, 211 N.Y. 406, 412, 105 N.E. 647).

Neither this Court nor courts of other jurisdictions have fashioned a doctrinal distinction to classify which exceptions to the hearsay rule should require the declarant's unavailability as a condition for admissibility (4 Weinstein and Berger, op. cit., p 804[a][01], at 804-40--804-41; 2 McCormick, op. cit., § 253, at 130). Rather, that factor and the particular exceptions to which it adheres have developed on the typical case-by-case basis (2 McCormick, op. cit., § 253, at 130). The drafters of the Federal Rules of Evidence, for example, placed...