People v. Parchment

• Decision Date: 07 February 2012
• Parties: The PEOPLE, etc., respondent, v. Christopher PARCHMENT, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00986

92 A.D.3d 699

938 N.Y.S.2d 174

The PEOPLE, etc., respondent,

v.Christopher PARCHMENT, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 7, 2012.

Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered May 26, 2004, convicting him of criminal possession of a weapon in the second degree, assault in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The Supreme Court erred in admitting into evidence a recording of an anonymous 911 emergency call under the present sense impression exception to the hearsay rule. “As generally stated, the present sense impression exception permits a court to admit hearsay testimony of a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” ( People v. Brown, 80 N.Y.2d 729, 732, 594 N.Y.S.2d 696, 610 N.E.2d 369; see People v. Vasquez, 88 N.Y.2d 561, 575, 647 N.Y.S.2d 697, 670 N.E.2d 1328). Such declarations are considered reliable “because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory” ( People v. Vasquez, 88 N.Y.2d at 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328; see People v. Brown, 80 N.Y.2d at 732–733, 594 N.Y.S.2d 696, 610 N.E.2d 369). In order to further assure the reliability of such declarations, the “substance and content” of the statement “must be corroborated by extrinsic proof” ( People v. Vasquez, 88 N.Y.2d at 576, 647 N.Y.S.2d 697, 670 N.E.2d 1328).

In this case, the element of contemporaneity was not satisfied. The anonymous 911 caller described the entire course of events to the operator using the past tense, indicating that he was recalling and describing events that he observed in the recent past, rather than as it was occurring ( id. at 578–580, 647 N.Y.S.2d 697, 670 N.E.2d 1328; cf. People v. Buie, 86 N.Y.2d 501, 503–504, 634 N.Y.S.2d 415, 658 N.E.2d 192; People v. Brown, 80 N.Y.2d at 731–732, 594 N.Y.S.2d 696, 610 N.E.2d 369; People v. McCall, 80 A.D.3d 626, 627, 914 N.Y.S.2d 291). Moreover, the People failed to demonstrate that the delay between the conclusion of the event and the beginning of the call was not sufficient to destroy the indicia of reliability upon which the present sense impression exception rests ( see People v. Matyszewski, 47 A.D.3d 646, 848 N.Y.S.2d 542; People v. Dalton, 217 A.D.2d 587, 588, 629 N.Y.S.2d 86, affd. sub nom. People v. Vasquez, 88 N.Y.2d 561, 647 N.Y.S.2d 697, 670 N.E.2d 1328; cf. People v. York, 304 A.D.2d 681, 757 N.Y.S.2d 495; People v. Melendez, 296 A.D.2d 424, 424–425, 744 N.Y.S.2d 485; People v. Smith, 267 A.D.2d 407, 408, 700 N.Y.S.2d 227).

Under the...