People v. Brown

610 N.E.2d 369, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 1993 N.Y. LEXIS 91
New York Court of Appeals·Decided February 18, 1993·Published·Cited by 174 cases

Opinion

OPINION OF THE COURT

Hancock, Jr., J.

In defendant’s trial on burglary and other charges, recordings of two 911 transmissions describing the events in progress were received in evidence against him. His appeal presents a question of first impression in our Court: whether such evidence may properly be admitted under the present sense impression exception to the hearsay rule. For reasons to be explained, we hold that the present sense impression exception is the law in this State and that it was properly applied by the courts below in holding the evidence admissible. Accordingly, the order should be affirmed.

I

Defendant was indicted, tried and convicted after a jury trial for third degree burglary and other crimes in connection with a break-in at a restaurant in the Bronx. The trial evidence, as summarized by Supreme Court in denying defendant’s motion to set aside the jury verdict (People v Brown, 148 Misc 2d 70), was that at about 6:00 a.m. on July 12, 1987, the police received a 911 call reporting a burglary in progress. The caller, who identified himself as "Henry”, said that he was observing the break-in from his apartment across the street. He described the perpetrators as "one male black and one male white, wearing a blue t-shirt” (id., at 71). The police, responding to the reported burglary approximately three minutes after the initial 911 transmission, observed two persons run out of the restaurant through a broken glass door and climb up on the roof. One of the officers apprehended a "male black, later identified as defendant, Michael Brown, hiding underneath an air-conditioning duct located on the roof’ (id., at 71-72).

Police communications received another 911 call from [732]*732"Henry” reporting "that one man had been caught but 'the white guy [was still] on the roof ” and "that police backup was needed to catch him” (id., at 72). The other suspect, a white male, was found on the roof and arrested. He was wearing a blue t-shirt.

Over defendant’s objection, the tape recordings of the 911 transmissions were received in evidence and played for the jury. It was stipulated that the name and telephone number given by the 911 caller in the transmissions were not correct. After the jury verdict convicting defendant of burglary in third degree, criminal mischief in the third degree and resisting arrest, Supreme Court denied defendant’s motion to set aside the verdict.

In its written decision (People v Brown, 148 Misc 2d 70, supra), Supreme Court concluded that the present sense impression exception was applicable in New York and that the 911 recordings were admissible inasmuch as they were contemporaneous reports of events then being observed by the caller. It also held that corroboration was not a prerequisite for admission but that the testimony of the police officers who arrived on the scene shortly after the first transmission furnished corroboration, in any event. The court did not find it a bar to admission that the declarant was not identified by name or a participant in events observed.

The Appellate Division affirmed unanimously, citing People v Luke (136 Misc 2d 733, affd 147 AD2d 990) and holding that the recordings were properly admitted since "the reliability of the present sense impression, evidenced by the '911’ tape recording, was confirmed by the eyewitness observations of police officers, who arrived at the crime scene within moments of the first '911’ call” (People v Brown, 179 AD2d 485, 486). A Judge of this Court granted leave to appeal.

II

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 (see, e.g., Fed Rules Evid, rule 803 [1]; Proposed NY Code of Evidence § 804 [b] [1] [1982]).1 The theory of [733]*733the exception is that a statement describing an event when or immediately after it occurs is reliable because the contemporaneity of the event observed and the hearsay statement describing it leaves no time for reflection. Thus, the likelihood of deliberate misrepresentation or faulty recollection is eliminated (see, Comment of NY Law Rev Commn, reprinted in Proposed NY Code of Evidence § 804, at 211-212 [1982]; 4 Weinstein and Berger, Weinstein’s Evidence, ¶ 803 [1] [01]). Moreover, such statements are often made under circumstances where some witness has an opportunity to observe and verify all or part of the event described (see, Comment of NY Law Rev Commn, op. cit., at 211-212 [1982]; 4 Weinstein and Berger, op. cit, ¶ 803 [1] [01]).

"[T]here is no intent to preclude judicial development of the present sense impression exception under this section if the judiciary deems it desirable to do so. See People v. Watson, 100 A.D.2d 452, 474 N.Y.S.2d 978 (2d Dept 1984); People v. Luke, 136 Misc. 2d 733, 519 N.Y.S.2d 316 (Sup. Ct., Bx. Co. 1987). A statement of present sense impression is not admissible under the excited utterance exception because that statement is not a spontaneous and unreflective response to a startling event. See People v Brown, 70 N.Y.2d 513, 519, 522 N.Y.S.2d 837, 840 (1987). However, there may be other reasons why present sense impression, as a category, would be as trustworthy as an excited utterance. Thus, the failure to satisfy the requirements for excited utterance does not mean that a present sense impression has been determined unreliable.”

Our Court has not adopted the exception and, until the opinions of the courts below in this case, only three New York courts have discussed the issue in reported decisions (see, People v Watson, 100 AD2d 452; People v Luke, supra; People v Jardin, 154 Misc 2d 172).2 The rule, however, has been accepted in some form by the majority of States3 and has now [734]*734been widely approved by legal commentators (see, e.g., 4 Weinstein and Berger, op. cit, ¶ 803 [1] [01]; Waltz, The Present Sense Impression Exception to the Rule Against Hearsay: Origins and Attributes, 66 Iowa L Rev 869 [1981]; Wohlsen, The Present Sense Impression Exception to the Hearsay Rule: Federal Rule of Evidence 803 (1), 81 Dick L Rev 347 [1977]; Richardson, Evidence § 285-A, at 125-126 [Prince 10th ed, 1972-1985 Cum Supp]; McCormick, Evidence § 298, at 860 [3d ed]). A notable exception to this general acceptance by legal scholars is the contrary view of Dean Wigmore (see, 6 Wigmore, Evidence § 1757, at 236-240 [Chadbourn rev ed 1976]). Dean Wigmore, a proponent of the excited utterance doctrine, opposed the present sense impression rule because, in his view, only a startling event would guarantee trustworthiness; spontaneity and contemporaneity of the declaration, without the shock or excitement from the event, are not sufficient (id., § 1757, at 238; see also, Wohlsen, op. cit., at 351). Defendant notes that this Court, in developing its excited utterance exception to the hearsay rule, has accepted Dean Wigmore’s analysis (see, e.g., People v Brown, 70 NY2d 513, 518; People v Marks, 6 NY2d 67, 71-72).

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People v. Brown, 610 N.E.2d 369, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 1993 N.Y. LEXIS 91 (N.Y. 1993).

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