People v. Grant

• Citation: 113 A.D.2d 311,497 N.Y.S.2d 23
• Parties: The PEOPLE, etc., Respondent, v. Robert Lee GRANT, Appellant.
• Decision Date: 16 December 1985
• Court: New York Supreme Court Appellate Division

Page 23

497 N.Y.S.2d 23

113 A.D.2d 311

The PEOPLE, etc., Respondent, v. Robert Lee GRANT, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 16, 1985.

Harvey L. Woll, New York City, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Gary S. Fidel, of counsel), for respondent.

LAWRENCE, Justice.

The instant appeal, in which defendant challenges his conviction for robbery in the second degree and other related offenses, presents for our consideration the issue of whether the admission into evidence of statements made by the robbery victim, who did not testify at the defendant's trial, violated the defendant's right "to be confronted with the witnesses against him" (U.S.Const., 6th Amend.; N.Y. Const., art. I, § 6). We conclude that the victim's statements were properly admitted into evidence and since no other grounds have been presented warranting a reversal of the conviction, there should be an affirmance.

The facts of this case were testified to by Police Officers John Tierney and John Byrnes, Police Lieutenant Austin Kelly and Michelle Fuchs, the medical records director at Flushing Hospital Medical Center.

At approximately 8:15 P.M. on February 16, 1981, Tierney, Byrnes and Kelly, members of the Street Crime Unit, were on patrol in an unmarked police car in the 109th Precinct in Queens. As they traveled in their car, on 41st Avenue, the officers, who were in plainclothes, noticed a man, later identified as the defendant, standing behind the gate of a schoolyard in a crouched position. Tierney exited the car and hid behind a stack of bricks at a construction site across the street from the schoolyard area, which was illuminated by streetlights and spotlights. Subsequently, a woman, later identified as Pastora Molina, was seen by the officers walking along the schoolyard block, carrying bags of groceries and a pocketbook. From his position across the street, Tierney saw the defendant approach Molina, grab her from behind, throw her down onto the sidewalk, and then struggle with Molina for her pocketbook. Tierney, with his gun drawn, yelled, "[P]olice, don't move". The defendant immediately fled, with Tierney in pursuit, through an alleyway and down a flight of stairs to Barclay Avenue.

At that time, Kelly, who had also witnessed the purse-snatching, exited the police vehicle, ran through the schoolyard next to the alleyway and apprehended the defendant as he emerged from the alleyway onto Barclay Avenue. The defendant was carrying the pocketbook. The pocketbook and its contents, including $12 and a social security card bearing the name Pastora Molina, were introduced into evidence.

Approximately two minutes after the defendant was apprehended, Molina arrived at the arrest scene and, without being questioned by the officers, she stated, in substance, "that's my pocketbook", and "[the defendant] took my pocketbook" ¹.

The officers further testified that they observed that the fingers of one of Molina's hands were disfigured. The records of Flushing Hospital, which were admitted into evidence, indicated that on February 16, Molina was treated for two dislocated fingers; she required a cast for her hand and reconstructive surgery was recommended.

Prior to the trial court's charge to the jury, defense counsel's motion for a trial order of dismissal, based, inter alia, on the ground that defendant was denied his constitutional right to confrontation since Molina did not testify at the trial, was denied. Thereafter, the jury acquitted defendant of robbery in the first degree, but convicted him of robbery in the second degree, grand larceny in the third degree and criminal possession of stolen property in the third degree.

In seeking reversal of his conviction, defendant contends that Molina's statements, as testified to by the police witnesses, should not have been admitted into evidence because they were inadmissible hearsay declarations of questionable accuracy. It is further contended that since Molina did not testify at the trial, the use of her out-of-court accusations violated the defendant's constitutional right of confrontation. We disagree.

Molina's statements were properly admitted into evidence under the spontaneous declaration or excited utterance exception to the hearsay rule.

In determining whether a statement qualifies as a spontaneous declaration or excited utterance, the Court of Appeals has set forth the following guidelines:

"[T]he court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection" (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229).

Applying these factors to the instant case, we find no error in the admission of the statements. A review of the record indicates that Molina's statements were made minutes after she had been attacked and robbed of her pocketbook. Under the circumstances, Molina's statements "were uttered when emotional excitement continue[d] to dominate and [her] reflective powers [were] still in abeyance" (People v. Edwards, supra, at p. 498, 419 N.Y.S.2d 45, 392 N.E.2d 1229; see also, Matter of Lydia K., App.Div., 491 N.Y.S.2d 752 [2d Dept., 1985], lv. granted --- N.Y.2d ----, --- N.Y.S.2d ----, --- N.E.2d ---- [Nov. 14, 1985] [paramedic allowed to testify that four to seven minutes after the victim, a seven-year-old child, fell out of a window, the child told him that her mother pushed her out of the window] ). Furthermore, the fact that Molina saw the defendant, the man who robbed her, at the arrest scene only minutes after the incident is independently a startling event which rendered her statements admissible as spontaneous declarations or excited utterances (see, Matter of Danny R., 50 N.Y.2d 1026, 1028, 431 N.Y.S.2d 687, 409 N.E.2d 1361 [arresting officer permitted to testify that the victim screamed " 'That's him' " when the officer brought the defendant back to the scene of the robbery] ).

We find no merit to defendant's claim that the testimony of the police witnesses in this case violated the rule set forth i People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 (cf. Matter of Danny R., supra).

Having concluded that Molina's statements were admissible under the spontaneous declaration or excited utterance exception to the hearsay rule, we now consider whether the use of the statements deprived the defendant of his constitutional right to confront the witnesses against him.

In determining the issue of the defendant's right of confrontation, we must consider whether the prosecutor satisfied the two-fold test set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597. This approach was adopted by our Court of Appeals in People v. Sanders, 56 N.Y.2d 51, 451 N.Y.S.2d 30, 436 N.E.2d 480, where, as in this case, the "defendant has not advanced any reason which would cause [this court] to recognize a State constitutional right of confrontation broader than the Sixth Amendment guarantee as interpreted by the Supreme Court" (People v. Sanders, supra, at pp. 64-65, 451 N.Y.S.2d 30, 436 N.E.2d 480).

As delineated by the Supreme Court in Ohio v. Roberts (supra), in the usual case, the People must establish that the hearsay declarant is unavailable at the time of the trial and that the statement bears indicia of reliability sufficient to " 'afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement' " (Ohio v. Roberts, supra, 448 U.S. at pp. 65-66, 100 S.Ct. at 2539 quoting from California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, supra, at p. 161, 90 S.Ct. at 1936). ²

With respect to establishing the unavailability of a witness, the People must prove that they have made a " 'good-faith effort' " to obtain the hearsay declarant's presence at the trial (Ohio v. Roberts, supra, 448 U.S. at p. 74, 100 S.Ct. at 2543 quoting from Barber v. Page, 390 U.S. 719, 724-725, 88 S.Ct. 1318, 20 L.Ed.2d 255, see also, People v. Sanders, supra, 56 N.Y.2d at p. 64, 451 N.Y.S.2d 30, 436 N.E.2d 480). The extent to which the prosecution must go to satisfy the requirement that a good-faith effort be made to produce a witness " 'is a question of reasonableness' " (Ohio v. Roberts, supra, 448 U.S. at p. 74, 100 S.Ct. at 2543 quoting from California v. Green, supra, 399 U.S. at p. 189, n. 22, 90 S.Ct. at p. 1951, n. 22 [concurring opinion, citing Barber v. Page, supra] ). Even if the prosecution sufficiently proves that a good-faith effort has been made, albeit unsuccessfully, to produce the witness, the hearsay statement will only be admissible if it bears sufficient " 'indicia of reliability'. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception" (Ohio v. Roberts, supra, 448 U.S. at p. 66, 100 S.Ct. at 2539).

In the instant case, a review of the record indicates that the prosecution satisfied its burden of establishing that it had made a good-faith effort to locate Molina. Initially, there was no indication that she would not testify at the trial until after the trial had already commenced on Tuesday, February 2, 1982. On February 2 and 3, 1982, a jury was impaneled. On Thursday, February 4, 1982, defendant was granted a one-day adjournment; at that time the prosecutor stated that he had been informed that Molina was at "Con Ed"...