People v. Nalty

• Decision Date: 26 August 1988
• Parties: PEOPLE of the State of New York v. Stephen NALTY and Tilly Rowley.
• Court: New York Supreme Court

Page 657

532 N.Y.S.2d 657

141 Misc.2d 90

PEOPLE of the State of New York v. Stephen NALTY and Tilly Rowley.

Supreme Court, Kings County Criminal Term, Part 9.

Aug. 26, 1988.

Elizabeth Holtzman, Dist. Atty., by Sari Kolatch, Asst. Dist. Atty., of counsel, for the People.

Gregory Poulos, Brooklyn, for defendant Stephen Nalty.

Spiro Ferris, New York City, for defendant Tilly Rowley.

HERBERT KRAMER, Justice.

Is trial testimony of acts committed and statements made by a now deceased complainant, admissible as an excited utterance or spontaneous declaration to prove the identity of defendants?

FINDINGS OF FACT

Complainant, Mr. Senior, who died before trial from an unrelated cause, was seated with a woman in the front seat of his parked car. Defendants entered the vehicle, one defendant held a gun to his head and effectively prevented his companion from seeing their faces. They demanded his jewelry, which was unique, and fled the scene on foot.

Police officers were flagged down by Mr. Senior who excitedly told them that he had just been robbed at gun point. He then abruptly got back into his car and left the officers in a search for the defendants. The officers followed, temporarily lost sight of the complainant, but regained visual contact a few minutes later. A short distance away they found Mr. Senior in an altercation with both defendants. Defendant Rowley ran past the police vehicle; defendant Nalty was no longer in sight.

An officer exited his car and observed Mr. Senior running after defendant Rowley, while saying, "That's one of the guys". The officer ran after defendant Rowley and arrested him after he had been tackled by the complainant. A search of the defendant uncovered some of the complainant's jewelry which was identified at trial by his companion.

Moments later, an officer along with Mr. Senior, pursued defendant Nalty, who ran and hid underneath a parked car in a dark alleyway. As the officer and Mr. Senior approached the alleyway, the complainant told the officer that defendant Nalty had held the gun during the robbery. The officer then entered the alleyway, arrested Nalty, and recovered additional jewelry near the car under which Nalty had been hiding.

The entire event transpired over a period of ten to twenty minutes.

It is the officers' testimony as to the complainant's following the defendants and the accompanying verbal identifications of the defendants, which was objected to at trial, that is the subject of this decision.

DISCUSSION

Exceptions to the hearsay rule require a high degree of trustworthiness, which acts as the balance to a more limited opportunity to cross examine. People v. Brown, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520 (1987); People v. Caviness, 38 N.Y.2d 227, 231, 379 N.Y.S.2d 695, 342 N.E.2d 496; see also, Richardson, Evidence, § 201 (Prince 10th ed.).

Where the hearsay exception is an excited utterance, "... the 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." Brown, supra, at 519, 522 N.Y.S.2d 842, 517 N.E.2d 520 (citing People v. Marks, 6 N.Y.2d 67, 188 N.Y.S.2d 465, 160 N.E.2d 26 (1959); People v. Edwards, 47 N.Y.2d 493, at 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 (1979)); see also, Richardson, Evidence, § 281; 6 Wigmore, Evidence, §§ 1745-1750 (Chadbourn rev. 1976); Fisch, Evidence, § 1000; United States v. Napier, 518 F.2d 316 (9th Cir., 1975).

In the case at bar, ten to twenty minutes elapsed between the robbery and the complainant's acts and statements identifying the defendants, which could have given the complainant an opportunity to deliberate. Devoid of spontaneity, the critical factor then is whether Mr. Senior's actions and words, between the time of the robbery and the time he identified the defendants, were made impulsively without reason to fabricate and under the stress of excitement, Brown, supra; Edwards, supra; Marks, supra.

Where time has elapsed between the event and the statement, the events must be examined in the context of the actual length of time, People v. Vigilante, 122 A.D.2d 900, 505 N.Y.S.2d 942 (1986), (15 to 20 minutes after shooting, declarant unconscious for 13 minutes); People v. Nieves, 108 A.D.2d 165, 488 N.Y.S.2d 654 (1985), (20 to 25 minutes after stabbing); People v. McCullough, 73 A.D.2d 310, 315, 425 N.Y.S.2d 982 (1980), (10 minutes after shooting); United States v. Golden, 671 F.2d 369 (1982), (15 to 20 minutes). ¹

As testified by the officers and Mr. Senior's companion, the complainant focused his attention in an intensive search to apprehend the defendants and recover his jewelry.

Although the sequence of the robbery and the chase can be viewed as two separate and distinct events, in reality they constituted a continuum. These events had the cumulative effect of insuring a high degree of trustworthiness in his acts and statements, and mitigated any likely possibility of false identification.

The Court thus finds the complainant's acts and statements admissible, through the police officers' testimony, because their internal reliability in context of the surrounding event serves as an effective substitute for cross examination.

Furthermore, it would defy logic and would have been wholly irrational for the complainant, whose primary goal was the apprehension of the defendants for the recovery of his jewelry, to falsely accuse someone of having stolen his property. Clearly, the complainant's purpose would have been impeded by a false accusation. Moreover, the question of an opportunity or motive for mistaken identity is belied because the unique jewelry involved was in fact recovered from the defendants, which is an independent indicia of reliability, and was later identified by Mr....