People v. Vasquez

Citation647 N.Y.S.2d 697,88 N.Y.2d 561,670 N.E.2d 1328
Parties, 670 N.E.2d 1328 The PEOPLE of the State of New York, Respondent, v. Juan VASQUEZ, Appellant. The PEOPLE of the State of New York, Respondent, v. John P. DALTON, Appellant. The PEOPLE of the State of New York, Respondent, v. Randy ADKINSON, Appellant.
Decision Date02 July 1996
CourtNew York Court of Appeals
OPINION OF THE COURT

TITONE, Judge.

In each of these three cases, the defendant unsuccessfully sought to introduce hearsay statements that were made in the course of 911 calls on the theory that those statements qualified for admission as "present sense impressions."." The appeals from the Appellate Division orders affirming defendants' convictions require us to consider the precise contours of the criteria for present sense impressions that we outlined in People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369 and People v. Buie, 86 N.Y.2d 501, 634 N.Y.S.2d 415, 658 N.E.2d 192. Since these criteria were not satisfied by the offers of proof in the three cases before us, we conclude that the courts below did not err in their respective decisions to exclude the proffered evidence.

I. People v. Vasquez

Defendant was charged with reckless first degree endangerment and second and third degree criminal possession of a weapon. The charges arose out of an October 19, 1989 incident in which an individual standing near the intersection of 9th Street and Avenue C in Manhattan allegedly fired several shots at a passing passenger vehicle. According to the prosecution's evidence, the incident was witnessed by Peter Torres and Nancy Alfaro. Torres and Alfaro were riding in a white car when they first noticed an individual whom they identified as defendant exiting a nearby building. Torres stopped the car when he saw defendant "come up" with a "big" revolver. He continued to watch as defendant, whom he described as having an "intense expression," fired four shots, "following the car" from left to right as he fired. Torres saw defendant stagger and stumble away until he was "ushered" into a nearby pool hall by some men who were standing outside. At that point, Torres and Alfaro drove away, found a radio motor patrol car and reported the shooting, describing the shooter as an "older" "drunk" male Hispanic with a brown or black coat.

En route to the spot where the reported shooting had occurred, the officers received radio reports about the incident. These officers and several others in radio motor patrol cars converged at the scene. Torres spoke with an Officer Reuss and then accompanied him and the other officers to the pool hall. Shortly after they entered, an officer saw defendant, who fit Torres's description, exiting a small, single-stall bathroom in the back. A brief inspection of the bathroom revealed a revolver that had been placed on the floor behind the toilet and four spent shells inside the toilet itself. Following this discovery, the officers seized and searched defendant, recovering two bullets from his right pants pocket.

The identity of the shooter and the character of the shooting incident itself were challenged by the defense, which relied heavily on testimony from one Jose Tirado. Tirado, who had been "good friend[s]" with defendant for more than 25 years, stated that he saw a man argue with several others on the street and then return a few minutes later in a white car to chase his antagonists with the vehicle. After two passes through the area, the white car stopped and its driver entered into an argument with an individual whom Tirado described as "very dark" complected, "like a black with an Afro." Suddenly, Tirado stated, the two men fired guns at each other and the one with the Afro ran across the street into the nearby pool hall. At some point thereafter, the man with the white car came back, followed by several patrol cars, and directed the police into the pool hall. Tirado stated that he had seen defendant earlier in the evening and had warned him to stay inside the pool hall to avoid the rampaging white car. At the time of the shooting, according to Tirado, defendant was in the pool hall.

During the trial, defense counsel tried at several points to introduce an audiotape of a 911 call that had been made to police by an anonymous caller, assertedly "at the same time the incident t[ook] place." In the transcript of this tape, the caller reported that seven shots were fired. When asked whether there were any injuries, the caller answered in the negative and then stated that there was a black man wearing a black jacket "returning" and fleeing north on Avenue C. In support of his claim for admission of the tape, counsel argued that its contents were admissible under either the present sense impression or the excited utterance exception to rule against hearsay. Alternatively, counsel argued that the 911 call, or at least the radio run that was broadcast in response to the 911 call, was admissible to explain why the officers who had not spoken to Torres had gone to the scene of the shooting. Counsel's efforts to secure admission of the contents of the 911 call and the associated radio run were repeatedly rebuffed.

Following the trial, defendant was convicted of the charged crimes and sentenced to a 21 year to life term of imprisonment. On his appeal from the judgment of conviction, the Appellate Division affirmed, holding that defendant had failed to lay a proper foundation for the admission of the 911 call as an excited utterance and that the call's contents could not be admitted under the present sense impression exception because the requisite corroboration had not been established. Defendant subsequently obtained leave to take a further appeal from a Judge of this Court.

People v. Dalton

The homicide charges in defendant Dalton's case arose out of a violent altercation that took place just outside defendant's apartment on October 25, 1991. According to the People's trial evidence, the victim, Michael Sharib, who had been defendant's close friend for several years, had earlier accused defendant of burglarizing his family's home. Believing that Sharib was contemplating taking revenge, defendant, who was then 14 years old, arranged to purchase a gun.

On the evening of the incident, the 15-year-old Sharib, accompanied by several friends, approached defendant on the street outside of his apartment building, grabbed him by the clothes and began screaming at him about the burglary. Sharib eventually released defendant, but the argument continued until Sharib finally told defendant that if he had not committed the burglary, he should find out who did. Sharib had begun to walk away when defendant suddenly ran toward him and fired two shots from a small handgun just as Sharib turned to face him. When Sharib fell to the ground, defendant walked over to him, kicked him and then fired another shot, stating "I hope you die." Defendant ran into his apartment. Defendant's mother, who arrived on the scene at some point after the shooting, picked the gun up from the ground. She subsequently cooperated with the police, directing them to defendant, who was still in the house and was in an extremely upset and agitated state. Defendant was treated by EMS workers and then arrested. Sharib died as a result of his injuries.

Testifying on his own behalf, defendant stated that Sharib had threatened him with a knife a few days before the shooting. Although he was very nervous and concerned that Sharib would attack him, defendant stated that he did not attempt to acquire a weapon of his own after this incident. According to defendant, the altercation that led to the shooting began when Sharib and his friends surrounded him on the street and threatened him. He tried to run away, but was hit in the back of the head with a hard object. Dizzy from the blow, defendant ran to a nearby store. When he turned, he saw Sharib standing only a few feet away and pointing a gun at his chest. When Sharib's attention was momentarily diverted by defendant's mother's arrival, defendant kicked him in the groin, causing him to drop his gun. According to defendant, Sharib then attacked defendant's mother. Fearing that Sharib would hurt his mother with the knife he had seen several days earlier, defendant fired the gun. After the initial confusion, defendant complied with his mother's request that he give her the gun. Defendant then ran into his house and called 911.

Defendant's version of events was corroborated by his mother, who also described his state of extreme distress following the shooting. Additionally, an EMS technician testified for the defense, confirming the defendant was very upset and that he had a lump on his head when he was examined after the incident.

To bolster the defense position, counsel asked for permission to introduce the tape of defendant's 911 call as either an excited utterance or a present sense impression. Having made this call within minutes of the shooting, defendant told the operator that someone had been shot, gave the operator some identifying details and stated, in response to a question, that the victim had ...

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