By Indictment No. 71807-21, defendant is charged with Murder in the Second Degree, and two counts of Criminal Possession of a Weapon in the Second Degree. The People allege that defendant shot and killed his brother, Daniel Biggs (hereafter referred to as "decedent"), on May 2, 2021, in Kings County.

By motion in limine, dated January 15, 2025, the People seek to introduce statements made by decedent identifying the defendant as the shooter. The statements were made shortly after the shooting while decedent was being transported to the hospital and were captured by Police Officer Christopher Murphy's body worn camera. The People assert that the statements are admissible as a present sense impression, excited utterance and dying declaration which are exceptions to the rule prohibiting hearsay at trial.

The court conducted an evidentiary hearing on January 16, 2025, and January 21, 2025, in which the body worn camera at issue was played for the court and arguments were made by counsel. No other evidence was submitted or requested to be submitted by either side during the hearing, such as testimony by the EMT or the ambulance/hospital records or autopsy report of the decedent. The court adjourned the trial so that the parties could provide supplemental legal briefs.

Defendant submitted a Memo of Law in Opposition, dated January 29, 2025, arguing that the statements are not admissible under any hearsay exception and are testimonial in nature. Defendant further argues that if the court permits decedent's statements identifying the defendant as the shooter, the statements thereafter that indicate that decedent previously warned his parole officer and the police about the defendant should be redacted. Finally, the defendant seeks decedent's criminal history for impeachment purposes. Defendant provided a Supplemental Memorandum of Law on April 22, 2025.

The People provided a supplemental affirmation and memo of law dated June 6, 2025. In their supplemental affirmation, the People assert that the decedent was showing signs of compensated shock and diminished breathing on one side of his chest; that he was diaphoretic and a Level I trauma when he was admitted to the hospital. However, this is argument had no factual support in the record at the time of the evidentiary hearing and therefore, was not considered by the court.

Similarly, defendant in his Reply dated June 25, 2025, argued that the decedent had been shot before and had recovered, which also had no factual support in the record at the time of the evidentiary hearing and will not be considered by the court. As to the numerous police reports, sprint reports and autopsy report included in this reply, these documents needed to be offered at the time of the hearing with proper context, foundation and authentication and with an opportunity for the People to respond or oppose. Therefore, the court has not considered these attachments.

For the reasons set forth below, the court rules as follows: the People's motion to introduce decedent's statements as an excited utterance that are non-testimonial in nature is granted; the defendant's motion to redact those portions of the statement referring to reports to the local police precinct and decedent's parole officer is denied; the People's motion to introduce decedent's statements as a present sense impression and dying declaration is denied; the defendant's motion for the decedent's criminal history for impeachment purposes is granted; and the People's motion to introduce as direct evidence the testimony of the decedent's parole officer is denied, unless the defendant asserts recent fabrication.

On May 2, 2021, at approximately 8:26p.m., Police Officer Christopher Murphy responded to the corner of Putnam and Patchen Avenues in response to reports of a male shot. Officer Murphy was one of the first officers to respond. His body worn camera was activated and captured the entirety of his interaction with decedent at the crime scene, during transport to the hospital and at the hospital.

Officer Murphy approached decedent, who was lying on his stomach, and assessed him for injuries. Decedent rolled over onto his back and Officer Murphy applied a torniquet to his left leg which was bleeding profusely. Officer Murphy placed pressure on a wound to decedent's stomach area. During this time, decedent repeatedly asked for an ambulance, expressed that he was in pain and requested water. Officer Murphy told him to stay awake and to keep breathing. At one point, it appeared that decedent passed out. Officer Murphy asked what had happened, but decedent was unable to answer the most basic questions due to his pain and injuries.

While Officer Murphy was attending decedent's injuries, another officer asked his name, where the shooting occurred, and who shot him. Decedent was unable to answer any of the questions posed. The officers learned his name from someone else on the scene and stopped asking decedent questions.

At approximately 8:33 p.m., an ambulance arrived and the EMTs noted decedent's diminished breathing and low blood pressure. The EMTs encouraged decedent to "stay with us, stay awake, stay with me." Decedent was given oxygen and was encouraged to take deep breaths. Decedent requested more oxygen, but the EMTs stated that it was already at a high level. They suggested he breathe through his nose.

At 8:39 p.m., while still inside the ambulance, Decedent stated "my brother did it, Bruce Biggs. Bruce Biggs shot me." The statement was spontaneous and not made in response to any questioning by Officer Murphy or the EMTs. Decedent then stated, "I went to the precinct the other day and told the cop at the desk, a Spanish dude, he wouldn't listen to me. I told him he's after me [inaudible] but he wouldn't listen." After this statement, Officer Murphy asked "Who did it?" to which Biggs responded, "Bruce Biggs." Officer Murphy clarified by asking "Bruce Biggs?" and Biggs responded, "74 Bainbridge Street."

The EMTs continued to encourage decedent to stay awake. They asked a series of [*2]questions: "Who are you? Where are you? Do you know what happened? Who is the President?" Decedent responded, "I got shot by Bruce Biggs" and that Obama is President. At this point, the ambulance had not even left the scene of the shooting.

At approximately 8:41 p.m., Officer Murphy asked decedent, "Bruce Biggs?" and he responded "Yes." Officer Murphy asked for Bruce Biggs' date of birth and decedent provided the defendant's birthdate and address. Officer Murphy received a phone call and stated to the caller, "He's doing pretty good now, but he's got some, pretty good." He then stated, "Listen, he knows who did it. He's telling me right now. He said he's been coming to the precinct talking about it a lot. He said it was his brother." Decedent then exclaimed, "I called my parole officer too. She knows, I told her."

One minute later, at around 8:42 p.m., Officer Murphy ended the call and asked decedent "Why do you think it's him?" Decedent stated, "Cause I seen him when he shot me." The EMT interjected asking "Oh, you saw him shoot you?" to which decedent answered "Yeah." At approximately 8:43 p.m., decedent asked the EMTs if he got shot in the foot. The EMTs were unaware of this additional injury. They continued to encourage decedent to stay awake and to stay with them.

At approximately 8:45 p.m., the EMTs counted a total of five gunshots wounds: right chest, right hip, right and left thighs and right leg. At 8:46 p.m., 8:47:10 pm and 8:47:30, the EMTs encouraged decedent to stay with them. At 8:49 p.m., Biggs stated, "I feel alright" and told the EMT that she smells good. The EMTs continued to encourage decedent to stay awake. Decedent responded by asking for oxygen to be turned up. At 8:53 p.m., decedent was questioned about his breathing and the EMT reported that he was breathing properly. At 8:56 p.m., the EMT asked decedent "how do you feel right now?" Decedent responded, "I feel alright." Moments later, decedent arrived at the hospital. Decedent did not die until May 12, 2021.

The People assert that the decedent's statements are admissible as a present sense impression, excited utterance and dying declaration which are exceptions to the rule prohibiting hearsay at trial. Hearsay is an out of court statement of a declarant offered to prove the truth of the matter asserted in the statement (NYS UCS Guide to NY Evidence, §8.00). The hearsay declarant is typically not a witness at the proceeding and hearsay is generally "not admissible unless it falls within an exception to the hearsay rule as provided by decisional law or statute and is permissible under the Federal Constitution and New York Constitution" (Id. at §8.01). The admissibility of hearsay is limited by the Confrontation Clause of the US Constitution, Sixth Amendment (US. Const. amend. 6).

Present sense impression declarations are "descriptions of events made by a person who is perceiving the event as it is unfolding" or immediately thereafter (People v Vasquez, 88 NY2d 561, 574 [1996]; People v Brown, 80 NY2d 729, 734 [1993]). They are reliable because the contemporaneous communication decreases the opportunity for an intentional misstatement (People v Vasquez, 88 NY2d 561, 574 [1996]). In addition to a simultaneous declaration, the law requires that the statement be corroborated by independent evidence to establish reliability (People v Vasquez, 88 NY2d 561, 574 [1996]; People v Brown, 80 NY2d 729, 734 [1993]; People v Cantave, 21 NY3d 374, 381 [2013]).

Here, the court finds that decedent's statements were not made while perceiving the [*3]shooting. Rather, the statements were made approximately thirteen minutes after the shooting while decedent was receiving treatment during transport to the hospital. Based on the delay, the court cannot say that the statements were contemporaneously made as required by the present sense impression exception. Accordingly, the court denies the People's motion to admit decedent's statements as under the present sense impression exception to the rule against hearsay.

An excited utterance is a "spontaneous declaration or excited utterance—made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant" (People v Cummings, 31 NY3d 204, 209 [2018] citing People v Edwards, 47 NY2d 493, 496-97 [1979]). Generally, excited utterances are admissible because they are "impulsive and unreflecting responses of the declarant to an injury or other startling event" and they are considered trustworthy, and express "the real tenor of said declarant's belief as to the facts just observed by him" (People v Cummings, 31 NY3d 204, 209 [2018] citing People v Caviness, 38 NY2d 227, 231 [1975]). "The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance" (People v Johnson, 1 NY3d 302, 307-308 [2003]). The court must be able to infer that the declarant had an opportunity to personally observe the event (People v Cummings, 31 NY3d 204, 209 [2018]). "Direct observation by the person making the excited utterance ensures that the declarant is in fact reacting to and "assert[ing] the circumstances of" the event causing the excitement (People v Cummings, 31 NY3d 204, 209 [2018] citing People v Edwards, 47 NY2d 493, 496-97 [1979]).

The court must consider multiple factors when determining whether a statement constitutes an excited utterance: (1) the nature of the startling or traumatic event such as a shooting or serious injury (People v Diaz, 21 AD3d 58, 65 [1st Dept 2005]; People v Johnson, 1 NY3d 302, 307-308 [2003]; People v McCauley, 162 AD3d 1307, 1309 [3d Dept 2018]); (2) the amount of time between the event and the statement (People v Vasquez, 88 NY2d 561, 5579 [1996] ("the time for reflection is not measured by minutes or seconds but rather is measured by facts"); (3) the activities of the declarant between the event and the statement (People v Diaz, 21 AD3d 58, 65 [1st Dept 2005]; (4) whether the declarant had an opportunity to deliberate and thus deviate from the truth (Id.); and (5) whether the circumstances indicate that the statement was not made under the impetus of studied reflection (People v Diaz, 21 AD3d 58, 65 [1st Dept 2005] citing People v Edwards, 47 NY2d 493,497).

Here, based on the above factors, the court finds that the statement qualifies as an excited utterance. Decedent was shot five times and was suffering from traumatic and serious injuries. He made a spontaneous statement only thirteen minutes after the shooting while he was in the ambulance and the EMTs were tending to his multiple injuries. The body worn camera demonstrates that decedent was in the midst of a serious medical event and had no time to reflect so as to deliberately deviate from the truth.

For example, statements made inside an ambulance by a seriously injured victim within thirty minutes of the incident have been found to be an excited utterance. In People v Martinez, a police officer was permitted to testify that he arrived on the scene of a shooting within minutes and rode with the victim in the ambulance (People v Martinez, 166 AD3d 1292, 1295 [3rd Dept 2018]). The victim was upset, sweating, in pain and asking if he was going to be ok (Id.). Once [*4]the victim stabilized, the officer asked if he knew who shot him and the victim identified the defendant (Id.). The Appellate Court held that since the "statement made within, at most, 30 minutes after the [victim] had been shot, while he was in pain and wondering whether he would survive," it was admissible as an excited utterance (Id.).

In People v Diaz, the police encountered a victim who was slashed across the face and bleeding profusely (People v Diaz, 21 AD3d 58, 60 [1st Dept 2005]). Once in the ambulance, other responding officers conducted a show-up identification of two suspects (Id. at 61). According to the testimony of the officer who was with the victim, the victim's face lit up when he saw the suspects and he stated, "that's them" (Id. at 62). The Appellate Division held that the court properly admitted the statement as an excited utterance because at the time the statement was made the victim was in an ambulance, being treated for injuries which took place within the previous half hour (Id. at 67).

As in both Martinez and Diaz, Officer Murphy, here, arrived on the scene of the shooting within minutes and his body worn camera captured the entirety of his interaction with decedent. They rode together in the ambulance and during transport decedent was in pain and having difficulty breathing. The EMTs were working to keep him awake and alive. At a moment when decedent appeared to stabilize, decedent spontaneously stated that the defendant, his brother, shot him. Neither Officer Murphy nor the EMTs asked decedent any questions that would have prompted the statements. The statements were made a mere thirteen minutes after the shooting at a time when decedent was still suffering from a serious physical injury. The EMT had yet to access all of his injuries and gunshot wounds. The body worn camera depicts decedent's physical instability and his lack of reflective abilities are readily apparent. Accordingly, the court finds that decedent's statement is an excited utterance.

The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him" (US. Const. amend. 6). In Crawford v Washington, the Supreme Court held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination" (Crawford v Washington, 541 US 36, 53-54 [2004]). The Court held that, at minimum, "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations" are all testimonial in nature and left for "another day any effort to spell out a comprehensive definition of testimonial" (Id.).

Two years later, in Davis v Washington, the Supreme Court addressed the testimonial nature of a statement made as the result of an interrogation that took place during a 911 call (Davis v Washington, 547 US 813, 822 [2006]). The Court distinguished between testimonial and non-testimonial statements as follows:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

(Id.). In finding the 911 call non-testimonial, the Court pointed to the fact that the victim was [*5]speaking about events as they were happening, rather than describing past events; that there was an actual ongoing emergency; that the elicited statements were necessary to resolve the emergency; and that the statements were not formal (Id. at 827). These factors supported the determination that the primary purpose of the interrogation was to enable police to meet an ongoing emergency. The Court, in Davis, however "did not attempt to produce an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation — as either testimonial or nontestimonial" (Id. at 822).

It was not until Michigan v Bryant, that the Supreme Court enumerated specific factors for courts to consider when determining whether statements in response to police interrogation are testimonial and whether there is an ongoing emergency (Michigan v Bryant, 562 U.S. 344 [2011]). In Bryant, the Supreme Court considered a statement made by the victim in response to police officers who discovered the victim mortally wounded in a gas station parking lot (Id. at 348 [2011]). The police asked the victim what happened and who shot him, and the victim identified defendant as the shooter (Id.). These facts raised a new context for the application of the "ongoing emergency" standard (Id. at 359). "We confront for the first time circumstances in which the ongoing emergency discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large" (Id.)

The Supreme Court held that courts must conduct an objective analysis of the circumstances in which the encounter occurs and the statements and actions of the parties to determine the primary purpose of the interrogation (Id. at 359-360).

The circumstances in which an encounter occurs—e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.

(Id. at 360). The Court offered the following factors for consideration: (1) an assessment of whether the emergency that hreatens the police and public is ongoing which should not narrowly focus on whether the threat has been neutralized because the threat to the first responders and public may continue; (2) the duration and scope of the emergency which may depend in part on the type of weapon employed; (3) the medical condition of the victim; (4) whether the perpetrator is still on the loose and can pose a threat to the public; (5) the level of formality in an encounter between a victim and police; and (6) the nature of what was asked and answered (Id. at 364-366).

Specifically applying these factors in Bryant, the Supreme Court held,

For their part, the police responded to a call that a man had been shot . . . they did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime occurred. The questions they asked—what had happened, who had shot him, and where the shooting occurred —were the exact type of questions necessary to allow the police to assess the situation, the threat to their own safety, and possible danger to the potential victim and to the public including to allow them to ascertain whether they would be encountering a violent felon.

(Id. at 376-377 quoting Davis v Washington, 547 US 813, 832 [2006]) (internal citations omitted). The Court held that the solicited information was necessary to enable the officers to meet an ongoing emergency (Michigan v Bryant, 562 U.S. 344, 358 [2011]).

If the facts in Bryant support the conclusion that the encounter therein was non-testimonial, then clearly this instant encounter is as well. Here, the police arrived with no idea what had happened other than the decedent was shot five to six times on a public street; the shooter was still at large; and the decedent's injuries were grave, he was in pain and was unable to answer simple questions. Moreover, there was no formal questioning that initiated the statement. Rather, the initial statement by the victim was spontaneous and the police followed up to assess the veracity of the statement and to get further information such as the suspect's address.

The Court of Appeals has reached similar conclusions. In People v Bradley, the Court determined that defendant's right of confrontation was not violated by admission of a statement by the victim to the responding police officer as it was clear that the statement was "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation was to enable police assistance to meet and ongoing emergency" (People v Bradley, 8 NY3d 124, 127 [2006] citing Davis v Washington, 547 US 813, 822 [2006]). The responding officer encountered a female victim who was emotionally upset, smeared with blood and had an injury to her hand (People v Bradley, 8 NY3d 124, 127 [2006]). The officer asked her what happened, and she stated that her boyfriend threw her through a glass door (Id.). The Court of Appeals held that at that moment the officer was concerned with safety of the victim and sought to determine the appropriate steps required to assist the victim (Id.). Thus, the statement was not testimonial and was properly admitted in her absence at trial (Id.).

Similarly, in People v Nieves-Andino, a responding officer encountered a shooting victim (People v Nieves-Andino, 9 NY3d 12, 13-14 [2007]). After requesting an ambulance, the officer asked the victim for his name and address and then asked what happened (Id.). The victim identified the defendant and gave his address (Id.). On appeal defendant argued that the assailant left the crime scene and no longer posed a physical threat to the victim, thus there was no ongoing emergency (Id.). The Court of Appeals held that the Supreme Court in Davis did not impose "such a restricted interpretation of what constitutes a continuing emergency" (Id. at 15).

Whether an officer's primary reason for making an inquiry was to deal with an emergency is a fact-based question that must necessarily be answered on a case-by-case basis. Even when the assailant has fled, the circumstances of the police officer's questioning of the victim may objectively indicate that the officer reasonable assumed an ongoing emergency and acted with the primary purpose of preventing further harm.

(Id.). The Court held that the officer reasonably assumed that there was an ongoing emergency and the fact that the assailant was no longer present was of no consequence (Id.). Based on the Court of Appeals rulings in Bradley and Nieves-Andino, the facts of the instant matter support a finding that the statement was non-testimonial in nature.

Here, Officer Murphy encountered the seriously injured decedent. While he was being transported to the hospital, decedent spontaneously identified the defendant as the shooter. It had been approximately thirteen minutes since decedent was shot and the police were still dealing with on an ongoing emergency at the scene. Officer Murphy asked appropriate follow up questions about the defendant's address and date of birth to assist in the apprehension of the [*6]defendant who fled the scene with a firearm and posed a threat to others. It is important to note that there was no interrogation by Officer Murphy at the time decedent indicated that his brother, the defendant shot him. Officer Murphy asked follow-up questions to ascertain the basis of decedent's knowledge and to obtain identifying information such as name and address. It is significant that Officer Murphy was simultaneously conveying the information to a fellow officer which was a clear indication that the information was being used to locate the defendant in the face of an ongoing emergency and threat. This was not formal or structured interrogation as contemplated by the Supreme Court as testimonial (see e.g, Crawford v Washington, 541 US 36 [2004]; Davis v Washington, 547 US 813 [2006]; People v. Gittens, 214 AD3d 670 [2nd Dept 2023] (court found that a 911 caller's statements were non-testimonial, partly because the statements were not part of a structured questioning).

There are numerous Appellate Division cases with analogous facts that support the court's conclusion that no violation of the Confrontation Clause will result from the admission of the decedent's statements. In People v. Anderson, the Appellate Division held that defendant's right to confront witnesses was not violated when a police officer who responded to the 911 call was permitted to testify about statements made by the victim and introduce video of the encounter (People v. Anderson, 114 AD3d 1083, 1085 [3rd Dept 2014]). The victim stated that she had been hit in the head with a bat, described her assailant, and said that he was in a nearby community center (Id.). The video reveals that the officer encountered the victim immediately upon arriving at the scene (Id.). She was bleeding profusely from her head and complaining of dizziness (Id.). The officer asked about her assailant's location, description and name, where the attack had occurred, and whether there were other victims, promptly relaying her answers to other police officers (Id.). The Appellate Division held that the statement was properly admitted as an excited utterance and that there was no constitutional violation. "The video reveals that the officer's primary purpose in questioning [the victim] was to enable the police to meet an ongoing emergency and apprehend the perpetrator, not to provide evidence for later prosecution" (Id.)

Similarly, in People v Diaz, as discussed above, the Appellate Court ruled that the victim's identification of defendant was an excited utterance (People v Diaz, 21 AD3d 58, 66 [1st Dept 2005]). The victim was inside an ambulance being treated for injuries related to a recent attack when he was presented with a show up identification (Id.). The Court held that the victim's statement from the ambulance was "a visceral response to the presence of his attackers, and his statement was volunteered, rather than the result of structed police questioning (Id. at 67; see also People v Moreno-Grantini, 167 AD3d 471 [1st Dept 2018] (identification of defendant to officer three minutes after knife assault non-testimonial because primary purpose was to determine what happened and to ensure the safety of others); People v. Paul, 25 AD3d 165 [1st Dept 2005] (volunteered statements were non-testimonial since they were not elicited through structured questioning); People v Royster, 18 AD3d 375, 376 [1st Dept 2005], leave denied, 5 NY3d 794 [2005]) (911 call non-testimonial as operator did not ask caller anything other than location and if she has injuries); People v Coleman, 16 AD3d 254, 255 [1st Dept 2005] (911 call non-testimonial as caller conveyed information for purpose of police intervention and not as a result of structed questioning); People v. Medina, 53 AD3d 1046 [4th Dept 2008] (victim's statements to friend after fatal injury non-testimonial because not formal interrogation).

Finally, in People v Gantt, the Appellate Division affirmed the admission of three statements implicating the defendant as the shooter by the victim — two statements to two different civilians who were assisting him until the police arrived and a third to an officer who [*7]asked victim "who did this to you?" (People v Gantt, 48 AD3d 59, 70 [1st Dept 2007]). The Court held the statement in response to the officer's question was non-testimonial as the "solitary inquiry, posed to [the victim] in the course of a fast-moving on-the-scene crime investigation, is hardly the sort of structured police investigation to which Crawford is directed" (Id. at 71). The Court further opined that the officer responding to the scene of a shooting could not have been certain that the assailant posed no further threat to the victim or the onlookers (Id.).

Like in Gantt, here, the one question to the victim by Officer Murphy, "why do you think it's him," was meant to assess the accuracy of the decedent's statements. Immediately thereafter, Officer Murphy called another officer provide the information to apprehend the shooter who was still at large — clearly still dealing with an ongoing emergency situation.

Defendant's supplemental moving papers cite to the case of Franklin v New York, 604 US —, 145 S. Ct. 831 (2025) in which the United States Supreme Court denied certiorari of a Court of Appeals decision holding that a CJA report which included an interview with the defendant was non-testimonial and thus, did not trigger the Sixth Amendment Confrontation Clause. The Court of Appeals, applying United States Supreme Court precedent, asked "whether, in light of all the circumstances viewed objectively, the statement was created for the primary purpose of serving as trial testimony" (People v Franklin, 42 NY3d 157 [2024]). Justice Gorsuch, respecting the denial of certiorari, called into question the primary-purpose test and suggested that the Court should "rethink" its application in the future. Nothing in the Justice Gorush's opinion requires a different outcome in this case.

Accordingly, the court finds that the statements of the decedent are admissible as an excited utterance and do not violate the defendant's constitutional rights as addressed by Crawford. Defendant's application to redact portions of the statement in which the decedent's states that he went to the local police precinct to report defendant's behavior and that he told his parole officer his concern about defendant is denied. The court finds that the entire statement is a excited utterance is not so unduly prejudicial as to require redaction.

Dying declarations require inquiry as to the state of mind of the declarant (People v Nieves, 67 NY2d 125, 132 [1986]). For a statement be admissible, courts have held that "the declarant must not only have been in extremis, but must also have spoken under a sense of impending death, with no hope of recovery (Id.; see, People v Ludkowitz, 266 NY 233, 239 [1935]; People v Sarzano, 212 NY 231, 235 [1914]). It is not sufficient that the declarant believes that death is possible, or even probable (People v Nieves, 67 NY2d 125, 132 [1986]; People v Sarzano, 212 NY 231, 235 [1914]). "There must be a settled hopeless expectation . . . that death is near at hand" (People v Nieves, 67 NY2d 125, 132 [1986] citing Shepard v United States, 290 U.S. 96, 100 [1933]).

In People v Nieves, the Court of Appeals considered whether there was sufficient evidence that the statements were made while under a sense of impending death with no hope of recovery (People v Nieves, 67 NY2d 125, 132 [1986]). The Court held that the analysis does not hinge upon the declarant having actually expressed a certainty of impending death, nor must a doctor opine that an imminent death is certain (Id. at 133) "Rather, the requisite state of mind of declarant may be found from all of the circumstances surrounding the statement sought to be admitted" (Id. at 134). Highly relevant are statements made by the declarant concerning his condition or expectation; statements made by medical personnel to the declarant about the severity of the injury; the nature and severity of the wound; whether the condition is improving [*8]or declining when the declaration was made; and whether the declarant exhibits signs that death is imminent, such as asking for last rites, disposing of property, or attempting to make arrangements for the care of family members (Id.)

Ultimately, the Court held that circumstances were insufficient to infer the requisite state of mind because the declarant disclosed "more a fear of death than an expectation of it" and no medical professional told her she was dying (Id.). Additionally, the stab wound was not of such nature that its severity would have been obvious to the declarant and the declarant took no steps which would reveal an expectation of death (Id.).

The opposite conclusion was reached in People v Clay, where the Appellate Division considered a statement identifying the defendant made by the declarant who was shot six times, gasping for air with his condition worsening (People v Clay, 88 AD3d 14 [2nd Dept 2011]). Responding officers asked defendant who shot him, and the declarant did not respond. The officer then stated to the declarant, "I don't think you're going to make it, who shot you?" and the declarant responded with a one-word name (Id. at 16). The Court found the direct question by the officer made the statement testimonial in nature but held that "the Sixth Amendment incorporates an exception for testimonial dying declarations" (Id. at 25). Further, the Court distinguished the case from Nieves based on the nature of the declarant's injuries, the fact that his condition was worsening, and that there was no indication that the declarant based his identification of the shooter on suspicion or conjecture (Id. at 31)

Here, the court finds that the statement is not a dying declaration as the record lacks evidence that the decedent expressed or understood that there was no hope of recovery or that his death was imminent. While it is true that the decedent was shot five times, including stomach and leg wounds, and had difficulty breathing, he did not indicate that he thought he was dying nor did any medical professional make statements to him about his condition short of encouraging him to stay awake and stay conscious. During the ride to the hospital, the decedent's condition appeared to stabilize, the decedent stated that he felt fine just before reaching the hospital and the officer stated that decedent was "pretty good." Finally, there were no other signs that death was imminent, such as giving away property or stating that he was dying.

The instant case is factually similar to People v Figueroa, 37 AD3d 246 [1st Dept 2007]. In Figueroa, defendant offered as dying declaration evidence that the decedent stated "I don't know who did this to me ... I don't know nothing" (People v Figueroa, 37 AD3d 246 [1st Dept 2007]). The declarant had been shot in the stomach, his condition stabilized, and he was breathing normally at the time of the statement (Id.). The Appellate Division agreed with the trial court that the statement was not a dying declaration because there was no indication that he was under a sense of impending death with no hope of recovery (Id.).

Lastly, the court notes that cases in which a statement was found to be a dying declaration include some statement by the declarant that indicates his belief that he is going to die (People v. Colon, 196 AD3d 1043 [4th Dept 2021] (declarant with gunshot wound to chest and difficulty breathing identified defendant and stated "tell my mother I love her"); People v Elder, 108 AD3d 1117 [4th Dept 2013] (the declarant bleeding heavily from femoral artery wound and difficulty breathing stated "I got robbed, I got shot. I'm [gonna] die, I'm [gonna] die"); People v Clay, 88 AD3d 14 [2nd Dept 2011] (officer asks declarant, shot six times, gasping for air with condition worsening, who shot him and stated, "I don't think you are going to make it"). Such evidence was not presented in the instant case.

Defendant argues that if the court admits the decedent's statement, then he is entitled to the criminal history of the decedent for impeachment purposes (People v Canady, 186 AD2d 749, 749-750 [2d Dept 1992] lv denied 81 NY2d 786 [1993]; People v Conde, 16 AD2d 327 [3rd Dept 1962]; People v Anderson, 114 AD3d 1083 [3d Dept 2014]). "When hearsay evidence has been admitted, the credibility of the declarant may be impeached by any evidence that would be admissible for those purposes if the declarant had testified as a witness" (NYS UCS Guide to NY Evidence, §8.22). Further, "the admission of that impeachment evidence is accordingly not conditioned on affording the declarant an opportunity to deny or explain" (Id.). In Carver v United States, the Supreme Court stated that it was error to preclude statements made by a deceased which were in contradiction to the deceased's dying declaration (Carver v United States, 164 US 694 [1897]; see also People v Canady,186 AD2d 749, 749-750 [2d Dept 1992] lv denied 81 NY2d 786 [1993]).

Since the court is permitting the statement to be admitted as an excited utterance, the court will require the prosecution to disclose the decedent's criminal history. However, the court reserves decision on how a criminal history may be used to potentially impeach decedent after defense counsel makes an offer of proof.

As described above, while in the ambulance the decedent informed the EMS and Officer Murphy that his brother shot him and that he had complained to a local precinct that his brother was "after me" but the officer at the precinct did not listen. Afterwards, Officer Murphy called a fellow officer by cellphone notifying them that the defendant was the shooter and that the decedent had previously complained to a local precinct. At this point, the decedent offered that he had also called his parole officer and complained about defendant.

The People made an application to admit into evidence testimony of the decedent's parole officer detailing the conversation she had with the decedent, as well as the information that the parole officer conveyed to the investigating detective after the decedent was killed. The parole officer reported a telephone conversation that she had with the decedent on April 14, 2021, approximately two weeks before the shooting. In the call, the decedent stated that he had not been feeling well and that he was very stressed out by the recent behaviors of his brother, Bruce Biggs. The decedent stated that his brother was a gang member and was formally on parole but was discharged. The decedent stated that he stays away from his brother and has all intentions to stay away from him. The decedent requested more time with an individual counselor as a result of his family stressors and did not feel the program was working for him.

After the homicide, an investigating officer interviewed the parole officer and recorded the following in a DD5:

Parole Officer Washington was assigned to the CV, Daniel Biggs. PO Washington states she last saw Daniel Biggs on Friday, April 30, 2021. PO Washington states that Daniel told her he was worried about his brother that was in his 50s. Daniel further stated his family came to him about his brother because he was in a gang and sells drugs and guns.

The court finds that the testimony of the parole officer is a prior consistent statement with no hearsay exception and no non-hearsay reason for its admission (NYS UCS Guide to NY Evidence, §8.00). The People's argument that the testimony completed the narrative or explains investigatory steps is insufficient. Thus, the testimony may not be advanced by the People as [*10]direct evidence. However, if defendant claims a recent fabrication, then the testimony would be admissible.

The People's motion is granted, in part.

The defendant's cross-motion is granted, in part.

This constitutes the Decision and Order of the Court.