| People v Spencer |
| 2012 NY Slip Op 04857 [96 AD3d 1552] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jabari H.Spencer, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedSeptember 24, 2010. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of robbery inthe first degree (Penal Law § 160.15 [4]), defendant contends that County Court erred inadmitting in evidence the recording of the 911 call made by one of the victims following therobbery. We agree. The 911 recording constitutes hearsay (see People v Buie, 86 NY2d501, 505 [1995]), and none of the exceptions to the rule against hearsay apply herein. The 911recording is not admissible under the present sense impression exception because there is nothingin the record establishing that the victim's "statement describes or explains an event or conditionand was 'made while the [victim] was perceiving the event or condition, or immediatelythereafter' " (People v Vasquez, 88 NY2d 561, 575 [1996], quoting People vBrown, 80 NY2d 729, 732 [1993]). Specifically, it is not clear when the 911 call was maderelative to when the robbery ended. Moreover, the victim's statements on the 911 recording alsoincluded references to other events, i.e., one that occurred at least one day before the robbery andanother that occurred a week prior to the robbery. Thus, those statements clearly do not reflect apresent sense impression (see id.).
Further, the 911 recording is not admissible as an excited utterance because the victim'sstatements clearly indicate that he had time to reflect on what had occurred prior to describing therobbery and who had committed the robbery. "Excited utterances 'are the product of thedeclarant's exposure to a startling or upsetting event that is sufficiently powerful to render theobserver's normal reflective processes inoperative[,]' preventing the opportunity for deliberationand fabrication" (People v Carroll, 95 NY2d 375, 385 [2000], quoting Vasquez,88 NY2d at 574; see People v Edwards, 47 NY2d 493, 496-497 [1979]). Given that the911 recording constituted hearsay, it was error to admit it in evidence and such admissionconstituted improper bolstering of the testimony of the victim who made the 911 call (seegenerally Buie, 86 NY2d at 510; People v McDaniel, 81 NY2d 10, 18 [1993]).
Nevertheless, we conclude that the court's error in admitting in evidence the 911 [*2]recording is harmless because the "proof of [defendant's] guilt wasoverwhelming . . . and . . . there was no significant probability that thejury would have acquitted [him] had the proscribed evidence not been introduced" (People vKello, 96 NY2d 740, 744 [2001]; see generally People v Crimmins, 36 NY2d 230,241-242 [1975]). Two of the three victims of the robbery were acquainted with defendant, andthey both recognized him almost immediately as the perpetrator, despite the fact that his face wascovered. Moreover, those witnesses were consistent in their respective versions of the factsregarding the robbery and were unequivocal in their identification of defendant as the perpetrator.
The sentence is not unduly harsh or severe. We have reviewed defendant's remainingcontentions and conclude that none requires reversal. Present—Centra, J.P., Peradotto,Lindley, Sconiers and Martoche, JJ.