People v. Nieves

Decision Date02 May 1985
Citation488 N.Y.S.2d 654,108 A.D.2d 165
PartiesThe PEOPLE of the State of New York, Respondent, v. Angel NIEVES, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

Robert S. Dean, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-appellant.

Lisa E. Sarnoff, New York City, of counsel (Mark L. Freyberg, New York City, on brief, Mario Merola, Dist. Atty., New York City, attorney), for respondent.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN and BLOOM, JJ.

SANDLER, Justice.

On this appeal from defendant's conviction of manslaughter in the second degree, the central issue is presented by the contention that the trial court erroneously admitted into evidence statements of the deceased identifying the defendant as having stabbed her, statements made in a hospital to which the deceased had been brought after the stabbing, and during a brief lucid period between her arrival in the hospital and her death. After a pre-trial hearing to determine the admissibility of the statements in issue, the trial court ruled them admissible as dying declarations. We are in agreement that the statements were properly admitted into evidence. However, a majority of this court is of the view that under the presently controlling rules of law the statements were admissible, not as dying declarations, but rather as excited utterances.

These are the facts disclosed in the hearing minutes. On January 16, 1982, at approximately 8:30 P.M., Josephine Gonzalez was carried into the emergency room at Bronx Lebanon Hospital by the defendant Angel Nieves and Herberto Reyes. Ms. Gonzalez wore summer-weight clothing and was very cold and wet. The defendant and Reyes told the doctor and nurse on duty that she had been stabbed and that they had waited some 20 minutes before being able to find a taxicab.

An examination disclosed a half-inch incision in the areola of Ms. Gonzalez's breast, alerting the doctor to the possibility of damage to the heart. She was in shock, conscious but unable to speak. The nurse had difficulty ascertaining her blood pressure and her body temperature was so cold that it would not register. Her pulse was slow and weak.

Emergency procedures were undertaken in an effort to stabilize her vital signs and to warm her body, the initial procedures taking some 10 to 15 minutes. Some 10 minutes thereafter, as Ms. Gonzalez's condition temporarily improved, she was able to respond to questions asked by the nurse. First Ms. Gonzalez gave her name and address. When asked what happened, she stated that she had been stabbed. When asked, "Who stabbed you", Ms. Gonzalez pointed to the defendant, standing in the emergency room, and said, "Angel". She added that while she and defendant were at a party, defendant became jealous and stabbed her. She pointed to a scar on her neck and told the nurse that the defendant "did this before and then he did this now."

The nurse called hospital security, and thereafter Police Officer Perez responded to the emergency room at about 9:00 P.M. In answer to the officer's question, Ms. Gonzalez again said, "Angel stabbed me." Thereafter the officer removed the defendant from the emergency room, searched him and recovered a knife from his right-hand trouser pocket.

Ms. Gonzalez was lucid for a period of some 20 to 25 minutes. During that period she complained of experiencing terrible chest pains and repeatedly stated that she did not want to die.

As explained by the doctor on duty, the knife had punctured both her heart and pericardium. As Ms. Gonzalez's vital signs normalized, her heart pumped blood into the pericardium and the abnormal pressure "strangulated" her heart. Efforts to alleviate the pressure failed to relieve the condition. After suturing the hole in Ms. Gonzalez's heart, the doctor hand-massaged her heart for 45 minutes before pronouncing her dead.

Analysis of the issues here presented appropriately starts with the notable comment of the Court of Appeals in People v. Arnold, 34 N.Y.2d 548, 354 N.Y.S.2d 106, 309 N.E.2d 875, rev'g 41 A.D.2d 573, 339 N.Y.S.2d 583, a case in which essentially the same issues were addressed under circumstances strikingly similar in legally significant respects to those here. As described in the Appellate Division's decision, the deceased, mortally wounded from a gunshot wound, was found by a passerby at 1:30 in the morning, slumped over the steering wheel of a station wagon in which she had been seen riding on the previous evening with the defendant. The deceased said that she wanted to get to a hospital and that she had been shot. Asked who shot her, her first response was, "I did. Get me to a hospital. I am dying." When it was pointed out that she could not have shot herself in the back, she answered, "No, my boyfriend shot me." (41 A.D.2d at 574, 339 N.Y.S.2d 583).

In reversing the defendant's conviction for manslaughter, the Appellate Division held that the statement identifying her "boy friend" as the shooter had been erroneously admitted into evidence. As developed in the opinion, the statement was not admissible as a dying declaration because, to be so admissible (41 A.D.2d at 574, 339 N.Y.S.2d 583) "it must be shown that the decedent believed she was dying and had no hope of recovery, and, if, as here, there is a belief that there is the slightest chance of recovery, the statement is inadmissible. (People v. Allen, 300 NY 222 )." Similarly, the statement was found to be inadmissible as a "spontaneous statement" because that doctrine requires that "the utterance must spring spontaneously and instinctively from the stress and excitement caused by the act of homicide, and must be made soon after the act so as to preclude the idea of deliberation, fabrication and design .... Decedent's statement here was made in answer to an inquiry from the witness and there is no evidence as to the time interval between the assault and the declaration." (41 A.D.2d at 574, 339 N.Y.S.2d 583).

The Court of Appeals reversed and reinstated the conviction, finding that if there had been error in admitting the statement, the error was harmless in view of the overwhelming evidence of guilt. The Court of Appeals went on to make the following comment, perhaps one of the most important judicial pronouncements on evidence in many years (34 N.Y.2d, at 549, 354 N.Y.S.2d 106, 309 N.E.2d 875): "Were it necessary to determine whether the deceased's utterance fit within an exception to the hearsay rule, it is observed that this court has in recent years emphasized that the hearsay doctrine has been too restrictively applied to exclude otherwise reliable evidence from the jury."

In thus clearly signalling that it would have been disposed to find the statement in Arnold admissible if required to reach the issue, the Court of Appeals did not specify which of the hearsay exceptions it implicitly deemed applicable, if indeed the court did not find the statement admissible under both. What seems to be unmistakably clear, however, is that the Court of Appeals availed itself of the occasion to underline the central judgment that issues of the kind here presented were better decided, not through a mechanical application of established formulas, but rather on the basis of the trustworthiness of the proffered evidence under all the relevant circumstances.

Turning first to the hearing court's determination that the statements of the deceased were admissible as dying declarations, it is clear that the record fails to establish the traditional requirements for admissibility under that doctrine as they were reaffirmed in People v. Allen, supra, the latest authoritative statement of the applicable principles by the Court of Appeals. In Allen, the Court of Appeals restated at 300 N.Y. p. 227, 90 N.E.2d 48, "the absolute and unvarying necessity for these two showings, at least: that 'the declarant was in extremis' and 'was under a sense of impending death, without any hope of recovery.' " The court went on to quote the following from People v. Sarzano, 212 N.Y. 231, 234-235, 106 N.E. 87: " 'Safety in receiving such declarations lies only in the fact that the declarant is so controlled by a belief that his death is certain and imminent that malice, hatred, passion and other feelings of like nature are overwhelmed and banished by it. The evidence should be clear that the declarations were made under a sense of impending death without any hope of recovery.' "

Measured by these standards, it is apparent that the statements in this case were not admissible as dying declarations. It is true that Ms. Gonzalez was in extremis, and it may be fairly inferred that she was aware that her condition was grave, but her repeated statements that she did not wish to die simply do not sustain the inference that her declarations "were made under a sense of impending death without any hope of recovery."

It may be, and we are inclined so to believe, that the comment of the Court of Appeals in People v. Arnold, supra, foreshadows some relaxation...

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3 cases
  • People v. Nieves
    • United States
    • New York Court of Appeals Court of Appeals
    • March 25, 1986
    ...not show that Miss Gonzalez " ' "was under a sense of impending death, without any hope of recovery" ' " when she made them (108 A.D.2d 165, 168, 488 N.Y.S.2d 654, quoting People v. Allen, 300 N.Y. 222, 227, 90 N.E.2d 48). The Appellate Division majority went on to find, however, that the s......
  • People v. Nalty
    • United States
    • New York Supreme Court
    • August 26, 1988
    ...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 afte......
  • People v. Kolb
    • United States
    • New York Supreme Court — Appellate Division
    • March 3, 1986
    ...the victim shortly before his demise come within the dying declaration exception to the hearsay rule (see, generally, People v. Nieves, 108 A.D.2d 165, 488 N.Y.S.2d 654; People v. Coniglio, 79 Misc.2d 808, 361 N.Y.S.2d 524; cf. People v. Acomb, 87 A.D.2d 1, 450 N.Y.S.2d 632, appeal dismisse......

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