People v. Cook

• Decision Date: 20 October 1993
• Citation: 603 N.Y.S.2d 979,159 Misc.2d 430
• Parties: The PEOPLE of the State of New York, v. Dennis COOK, Defendant.
• Court: New York Supreme Court

Page 979

603 N.Y.S.2d 979

159 Misc.2d 430

The PEOPLE of the State of New York, v. Dennis COOK, Defendant.

Supreme Court, Criminal Term Kings County, Part 47.

Oct. 20, 1993.

Charles J. Hynes, Dist. Atty., Brooklyn (Stuart Carroll, of counsel), for the People.

The Legal Aid Soc., Brooklyn (Robert Baum and Linda Hoff, of counsel), for defendant.

JEROME M. KAY, Justice.

Is "unavailability" of a hearsay declarant a requirement of the "present sense impression" or "excited utterance" exception to the hearsay rule?

The People have requested that the court admit into evidence two 911 tapes as either "present sense impressions" or "excited utterances" (also called spontaneous declarations).

In deciding this motion the court conducted a hearing, read the memoranda of law of both sides, and considered oral argument of both attorneys.

This written decision explains the court's ruling made in the middle of trial.

The two 911 tapes contain separate conversations between a 911 operator and Mariyah Rizutti, Harrison Carp, and an unidentified female. The People have represented that Mariyah Rizutti will not be called as a witness, but have given no information as to her availability or why she will not be called as a witness. Harrison Carp testified at trial prior to the court's ruling on the admissibility of the tape. Attempts at identifying the "unknown" female voice were unsuccessful.

The lack of explanation as to Mariyah Rizutti's availability and the testimony of Harrison Carp raise issues of defendant's right to confront witnesses under the New York and United States Constitutions, as well as evidentiary rule concepts.

The Sixth Amendment to the United States Constitution and article I section 6 of the New York Constitution both state that an accused is to "be confronted with the witnesses against him [her]" (matter in brackets added). ¹

A literal reading of the Federal and State Constitutions would appear to prohibit all hearsay exceptions (Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597; People v. Sanders, 56 N.Y.2d 51, 63, 451 N.Y.S.2d 30, 436 N.E.2d 480). The acceptance of hearsay exceptions comes from "necessity" for their use and not a reading of the Constitution (Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255).

Hearsay rules and the confrontation clauses of the Federal and State Constitutions "are generally designed to protect similar values" (California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489). While protecting "similar values", they function separately and distinctly (People v. Thomas, 68 N.Y.2d 194, 201, 507 N.Y.S.2d 973, 500 N.E.2d 293; People v. Salko, 47 N.Y.2d 230, 241, 417 N.Y.S.2d 894, 391 N.E.2d 976). Thus, sometimes a statement complies with the hearsay rules, but violates a defendant's confrontation rights and, vice versa, sometimes a statement does not conform with the hearsay rules, but does comply with the accused's confrontation right (California v. Green, 399 U.S., at 155-166, 90 S.Ct. at 1933-1934, supra).

The Federal Constitution, for certain (not all) hearsay exceptions, requires that the State prove that the absent declarant is "unavailable", and that the absent declarant's statement has particularized reliability (compare Ohio v. Roberts, 448 U.S., at 66, 100 S.Ct. at 2539, supra, with White v. Illinois, 502 U.S. ----, 112 S.Ct. 736, 116 L.Ed.2d 848; United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390).

This court is concerned only with the "unavailability" requirement, as "reliability" has been shown. The court must determine if proof of "unavailability" is required for either the "present sense impression" or "excited utterance" exception to the hearsay rule.

To fully understand this court's trial ruling it is necessary to understand the legal history of the "unavailability" requirement under State and Federal cases.

In 1898, the Court of Appeals in People v. Corey, 157 N.Y. 332, 51 N.E. 1024 was faced with a claim that the admission of a dying declaration against defendant violated the accused's right of confrontation. The court stated (157 N.Y. at 347-348, 51 N.E. 1024):

"The right of the accused to be confronted with the witnesses against him has always been a part of the Bill of Rights, and yet dying declarations have been received in evidence for time out of mind. The legislature doubtless intended to confer upon a defendant in a criminal action the right to be confronted with any living witness against him. It is upon this ground that the objection to the introduction of such declarations in evidence against a defendant, based on his constitutional right to be confronted with the witnesses against him, has been uniformly overruled in those jurisdictions where such constitutional provisions are in force. It is invariably held that the deceased is not a witness within the meaning of such a provision or of the Bill of Rights, and that it is sufficient if the defendant is confronted with the witness who testifies to the declaration (citations omitted; emphasis supplied).

The Court held that the word "witness" in the confrontation clause refers to the witness testifying to the hearsay statement, not to the absent hearsay declarant. The Bill of Rights referred to must be the New York Bill of Rights, since the Federal constitutional provision had not been made applicable to the states at this time.

Forty-six years later (December 30, 1944), in People v. Nisonoff, 293 N.Y. 597, 59 N.E.2d 420, the Court of Appeals was faced with a claim that the business record exception to the hearsay rule violated defendant's right to confrontation. After observing that the "United States Supreme Court" had upheld the constitutionality of the business record exception against a confrontation claim, the Court held that the Federal ruling is not a "restraint upon the powers of the States." The court addressed the State issue and discussed People v. Corey, 157 N.Y. 332, 51 N.E. 1024, supra and reaffirmed the principle that the term "witness" referred to in the Bill of Rights refers to the witness testifying to the out-of-court statement and not to the absent declarant.

In People v. Sugden, 35 N.Y.2d 453, 363 N.Y.S.2d 923, 323 N.E.2d 169, the Court reaffirmed the Corey and Nisonoff principles and held that the admissibility of hearsay exceptions does not violate confrontation rights (supra, 35 N.Y.2d at 460, 363 N.Y.S.2d 923, 323 N.E.2d 169).

In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, supra, the Court for the first time held that states must prove "unavailability" before admitting prior testimony under the Federal confrontation clause.

Twelve years later (June 25, 1980), in dealing with the admissibility of preliminary hearing testimony, the Court, in Ohio v. Roberts, 448 U.S. 56, at 66, 100 S.Ct. 2531, at 2539, supra, stated:

"In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability' " (emphasis supplied).

The Court made an exception to these two constitutional requirements for "firmly rooted" (supra, at 66, 100 S.Ct. 2531) hearsay exceptions (see, United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, supra ).

In discussing and defining "unavailability" the court, in Ohio v. Roberts, 448 U.S. 56, at 74-75, 100 S.Ct. 2531, at 2543, supra, states:

"[I]f no possibility of procuring the witness exists ... "good faith" demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation."

The requirements of "unavailability" and "indicia of reliability" are known as the "two-prong Roberts requirements".

Approximately 4 1/2 months (December 12, 1980) after Roberts, the Appellate Division, Fourth Department, in People v. Egan, 78 A.D.2d 34, 434 N.Y.S.2d 55, addressed the issue of the relationship between the confrontation rights and the hearsay exceptions of admission, declaration against penal interest, and "spontaneous declarations". After finding no Federal constitutional violation, the court found no violation of "the similar clause in the New York Constitution" (supra, 78 A.D.2d at 38, 434 N.Y.S.2d 55). The Court cited People v. Nisonoff, 293 N.Y. 597, 59 N.E.2d 420, supra for this proposition. The Court (78 A.D.2d at 39, 434 N.Y.S.2d 55) also cited People v. Corey, 157 N.Y. 332, 347-348, 51 N.E. 1024, supra.

In People v. Sanders, 56 N.Y.2d 51, 451 N.Y.S.2d 30, 436 N.E.2d 480, supra, the court addressed the relationship between the co-conspirator's exception to the hearsay rule and the confrontation clause. The court assumed that the two-pronged Roberts test applied to the co-conspirator's exception to the hearsay rule. The court then analyzed the Federal constitutional issue. With regard to the State constitutional issue, the court stated (56 N.Y.2d at 64-65, 451 N.Y.S.2d 30, 436 N.E.2d 480):

On the other hand, defendant has not advanced any reason which would cause us to recognize a State constitutional right to confrontation broader than the Sixth Amendment guarantee as interpreted by the Supreme Court. We confine ourselves, therefore, to deciding the case before us.

The Court, however, cited both Corey and Nisonoff with approval as examples of hearsay exceptions which have been constitutionally upheld (People v. Sanders, 56 N.Y.2d, at 62, 451 N.Y.S.2d 30, 436 N.E.2d 480, supra ).

Thereafter, decisions assumed the applicability of the two-pronged Roberts test to "present sense impression" (People v. Watson, 100 A.D.2d 452, 466, 474 N.Y.S.2d 978; People v. Crampton, 107 A.D.2d 998, 999, 484 N.Y.S.2d 721), and "excited utterance" (People v. Grant, 113 A.D.2d 311, 314, 497 N.Y.S.2d 23; People v. Crampton, supra ) exceptions to the hearsay rule. None of the cases...