| People v Parchment |
| 2012 NY Slip Op 00986 [92 AD3d 699] |
| February 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Parchment, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Roni C. Piplani of counsel), for respondent.
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 recklessendangerment 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 911emergency call under the present sense impression exception to the hearsay rule. "As generallystated, the present sense impression exception permits a court to admit hearsay testimony of astatement describing or explaining an event or condition made while the declarant was perceivingthe event or condition, or immediately thereafter" (People v Brown, 80 NY2d 729, 732[1993]; see People v Vasquez, 88 NY2d 561, 575 [1996]). Such declarations areconsidered reliable "because the contemporaneity of the communication minimizes theopportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory"(People v Vasquez, 88 NY2d at 574; see People v Brown, 80 NY2d at 732-733).In order to further assure the reliability of such declarations, the "substance and content" of thestatement "must be corroborated by extrinsic proof" (People v Vasquez, 88 NY2d at576).
In this case, the element of contemporaneity was not satisfied. The anonymous 911 callerdescribed the entire course of events to the operator using the past tense, indicating that he wasrecalling and describing events that he observed in the recent past, rather than as it was occurring(id. at 578-580; cf. People v Buie, 86 NY2d 501, 503-504 [1995]; People vBrown, 80 NY2d at 731-732; People v McCall, 80 AD3d 626, 627 [2011]). Moreover, the Peoplefailed to demonstrate that the delay between the conclusion of the event and the beginning of thecall was not sufficient to destroy the indicia of reliability upon which the present senseimpression exception rests (see People vMatyszewski, 47 AD3d 646 [2008]; People v Dalton, 217 AD2d 587, 588[1995], affd sub nom. People v Vasquez, 88 NY2d 561 [1996]; cf. People vYork, 304 AD2d 681 [2003]; People v Melendez, 296 AD2d 424, 424-425 [2002];People v Smith, 267 AD2d 407, 408 [1999]).
Under the circumstances of this case, the error was not harmless. Given the [*2]conflicting evidence as to whether the defendant was the shooter,the evidence of his guilt was not overwhelming, and thus "there is no occasion for considerationof any doctrine of harmless error" (People v Crimmins, 36 NY2d 230, 241 [1975]).Accordingly, reversal is required and the matter must be remitted to the Supreme Court, QueensCounty, for a new trial.
In addition, we note that the defendant was entitled to a copy of the transcript of his ownwitness's grand jury testimony since the prosecutor made use of it to impeach the witness duringcross-examination (see People v Barbera, 220 AD2d 601, 602 [1995]; People vGladden, 72 AD2d 568, 569 [1979]).
In light of our determination, the defendant's contention that his sentence was excessive hasbeen rendered academic. Rivera, J.P., Dickerson, Chambers and Austin, JJ., concur.