People v. Rosario

303 A.D.2d 158, 754 N.Y.S.2d 880, 2003 N.Y. App. Div. LEXIS 1977

Opinion

—Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered November 28, 2000, convicting defendant, after a nonjury trial, of assault in the second degree, attempted assault in the third degree and menacing in the second degree (three counts), and sentencing him to an aggregate term of six months concurrent with five years probation, unanimously affirmed.

The court properly admitted tapes of 911 calls from unidentified callers under the present sense impression exception to the hearsay rule. At trial, defendant conceded that these tapes met the requirements of that hearsay exception but objected on the ground of improper rebuttal, a theory not pursued on appeal, and not having been able to cross-examine the callers. We find no constitutional violation. Aside from whether the present sense impression exception is “firmly rooted” for Confrontation Clause purposes (see United States v Jones, 299 [2002]; Brown v Keane, 229 F Supp 2d 298 [2002]), we conclude that there were “particularized guarantees of trustworthiness” drawn from the circumstances of the making of the statements (see Ohio v Roberts, 448 US 56, 66 [1980]). Concur — Andrias, J.P., Saxe, Rosenberger, Williams and Gonzalez, JJ.