The Defendant is charged with two counts of Assault in the Third Degree, Criminal Possession of a Weapon in the Fourth Degree and Menacing in the Third Degree in violation of Penal Law §§ 120.00(1), 120.00(2), 265.01(2) and 120.15, respectively. It is alleged, in sum and substance, that on March 21, 2009, the Defendant threatened his nephew, Paul Bennett, with a kitchen knife, intentionally caused Mr. Bennett to sustain a physical injury by head butting him and recklessly caused further physical injury to Mr. Bennett, who allegedly sustained a laceration from the knife being held by the Defendant during a physical altercation.

A bench trial in this matter commenced on April 13, 2010. At that time the Defendant moved, in limine, to preclude the People from offering into evidence a 911 call placed by Mr. Bennett on the evening in question, as well as statements made to the police immediately upon their arrival at the scene in response to the 911 call. The court ruled on this motion from the bench, now memorialized in this written decision

Pointing out that Mr. Bennett has refused to cooperate with the District Attorney's office and testify at this trial, the Defendant argues that the statements made by Mr. Bennett on the 911 call are hearsay and that their admission into evidence would violate the Defendant's right to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution, as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). The Defendant further argues that to permit testimony from a police officer concerning Mr. Bennett's identification of the Defendant as the individual who allegedly attacked him would violate the rule enunciated by the Court of Appeals in People v. Trowbridge, 305 NY 471, 113 NE2d 841 (1953).

The People concede that Mr. Bennett is uncooperative and has indicated he will not testify at the trial of this matter. Nevertheless, in opposition to the Defendant's motion the People argue that the statements made by Mr Bennett, both during the 911 call and to the [*2]officers who immediately responded to that call, are admissible as excited utterances, an exception to the hearsay rule. The People further argue that the admission of these statements violates neither the Defendant's right guaranteed by the Confrontation Clause of the Constitution nor the proscriptions of Crawford v. Washington, id., as they are "non-testimonial" in nature. The People are correct.

The People represent that during his 911 call Mr. Bennett can be heard, in an excited manner, identifying himself, telling the operator, inter alia, that his uncle, whose voice can also be heard on the call, head butted him, tried to stab him, is carrying two knives, is following him and will not leave the home. According to the People, the call ends with Mr. Bennett advising the operator that the police have arrived. The Defendant does not contest the People's characterization of this call, except to argue that Mr. Bennett does not sound excited on this call, but angry.

The People make a further offer of proof that the first police officer to arrive on the scene will testify that when he arrived at the house in question, in response to the 911 call, he saw a man exit the house in an excited state, with a cell phone in his hand and blood on his hand, face and shirt, and point at another man, who would later be identified as the Defendant, and yell that the Defendant head butted him and cut him.

In resolving the issues presented, the court must employ a three step analysis. First, do the statements in question constitute hearsay. If not, they are admissible. Second, if they are hearsay statements, may they be admitted under a recognized hearsay exception. If not, they are inadmissible. Third, if they are admissible pursuant to a recognized hearsay exception, will their admission violate the Defendant's Sixth Amendment right to confrontation. If so, they will not be admissible.

There is no question that the People seek to offer Mr. Bennett's statements for truth of their contents. By definition, these out of court statements are hearsay statements. Spensieri v. Lasky, 94 NY2d 231, 701 NYS2d 689 (1999); Hinlicky v. Dreyfuss, 6 NY3d 636, 815 NYS2d 908 (2006); Nucci v. Proper, 95 NY2d 597, 721 NYS2d 593 (2001); People v. Beckwith, 289 AD2d 956, 734 NYS2d 770 (4th Dept. 2001) While hearsay, the court finds that these statements may be admitted as both excited utterances and/or present sense impressions.

In People v. Edward, 47 NY2d 493, 419 NYS2d 45 (1979) the Court of Appeals recognized:

One of the better-known exceptions to the injunction against the reception of hearsay testimony permits the introduction of 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 (citations omitted). Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, an utterance he makes will be spontaneous and trustworthy (citations omitted). Since the utterance is made as a direct result of sensory perception during that brief period when considerations of self-interest cannot be immediately brought to bear, the declaration may be admitted into evidence as expressing the true belief of the declarant as to the facts observed (citations omitted).

In providing some guidance to the trial court in determining whether or not a statement qualifies as an excited utterance, the court noted:

the court must ascertain whether, at the time the utterance was made, the declarant was under the [*3]stress of excitement caused by an external event sufficient to still his reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection.

Whether Mr. Bennett's tone during the 911call was excited or angry, the parties do not disagree that the sum and substance of his statements was, without conceding the truth of such statements, that he was head butted by an individual who had tried to stab him, who was still present and was following him in the house with two knives. Under such circumstances, it is clear that Mr. Bennett's 911 call was not the result of "studied reflection," but made during the course of an ongoing spontaneous and "startling event."

The same can be said for Mr. Bennett's statement to the first responding officer on the scene, immediately upon the conclusion of the 911 call. As also noted by the court in People v. Edwards, supra .:

... while these latter declarations were uttered after the attack had subsided, the declaration need not be coincident in time with the startling event (citations omitted). Where, as in the present case, the statements were uttered when emotional excitement continues to dominate and the reflective powers are still in abeyance, the declaration is properly admissible.

In the matter before the court, it is alleged that the last thing heard on the 911 call is Mr. Bennett stating that the police have arrived and that immediately thereafter he runs out of the house, with his cell phone in hand, with blood on his hand, face and shirt, and identifies the Defendant as the individual who head butted and cut him. Under such circumstances, there was virtually no break in time between the "startling event" and the first officer's arrival on the scene. Mr. Bennett's initial statement to this officer was clearly uttered while his emotional excitement continued.

The 911 call, as well as Mr. Bennett's initial statement to the first responding officer, also satisfy the present sense impression exception to the hearsay rule. In People v. Brown, 80 NY2d 729, 594 NYS2d 696 (1993), the Court of Appeals recognized that "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 also: People v. Brown, __ AD3d __, __ NYS2d __, 2010 WL 1286706(1st Dept. 2010) That is precisely what is alleged to have transpired herein.

The court having found Mr. Bennett's statements on the 911 call and to the first officer on the scene to be admissible as either excited utterances or present sense impressions, before they will be admitted at trial the court must still determine if their admission will violate the Defendant's rights of confrontation pursuant to the Sixth Amendment. It is the opinion of the court that they will not.

The 911 call in the matter sub judice is virtually indistinguishable from the 911 call in issue in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (2006), which was held to be non-testimonial and admissible. In so holding, the court emphasized that:

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 [*4]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.

The court went on to demonstrate the distinction between testimonial and non-testimonial statements by comparing the statements made therein and those made in Crawford v. Washington, supra ., as follows:

The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, McCottry (the caller) was speaking about events as they were actually happening, rather than describ[ing] past events (citation omitted). Sylvia Crawford's interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry's call was plainly a call for help against a bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn ( as in Crawford) what had happened in the past. That is true even of the operator's effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. (emphasis in original)On its face, the call placed herein by Mr. Bennett was for the purpose of dealing with a present and on going emergency. Clearly, unlike the statements in Crawford, and exactly like the statements in Davis, Mr. Bennett was not reporting past events, but events as they were unfolding. Under these circumstances, the court finds that the statements made by Mr. Bennett during the 911 call are non-testimonial; and, their admission would not violate the Confrontation Clause.

The court reaches the same conclusion regarding Mr. Bennett's alleged statements to the first officer on the scene responding to the 911 call. In People v. Nieves-Andino, 9 NY3d 12, 840 NYS2d 882 (2007), quoting from Davis v. Washington, supra ., the Court of Appeals reiterated: " viewed objectively, [...] the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn ... what had happened in the past' (citation omitted)." See also: People v. Bradley, 8 NY3d 124, 830 NYS2d 1 (2006), wherein the police responded to the scene of a 911 call where they met the complaining witness, who appeared visibly shaken, had blood on her face and clothing, was bleeding from one hand, and who stated that her boyfriend had thrown her through a glass door. The complaining witness did not testify at the time of trial; but, the admission of her statement into evidence was affirmed, with the Court of Appeals recognizing:When [the officer], responding to a 911 call, arrived at [the complaining witness' door] and was met by an emotionally upset woman smeared with blood, his first concern could only be for her safety. His immediate task was to find out what had caused the injuries so that he could decide what, if any, action was necessary to prevent further harm. Asking [the complaining witness] what happened' was a normal and appropriate way to begin that task, and the officer promptly entered the apartment, as an officer dealing with an emergency would be expected to do.

Because [the complaining witness'] statement was made when the officer could reasonably have [*5]assumed, and apparently did assume, that he had an emergency to deal with, her statement was not testimonial under Crawford or Davis.

Neives-Andino and Bradley are virtually indistinguishable from the matter before this court. As in those cases, the court is presented with a 911 call concerning what appears to be an ongoing emergency, to which the police immediately respond, and, upon responding found the caller, with the telephone still in his hand, bleeding and pointing to the individual who allegedly attacked him. The court finds that, under these circumstances, the event was still ongoing, rendering the statements non-testimonial. Neither the Sixth Amendment nor Crawford v. Washington, supra ., would prevent the admission of these statements.

Finally, the court does not find that Mr. Bennett's statement identifying the Defendant should be precluded as running afoul of the proscriptions set out by the Court of Appeals in People v. Trowbridge, 305 NY 471, 113 NE2d 841 (1953). Trowbridge is an anti-bolstering case, prohibiting the testimony of third parties to confirm the prior out of court identification of the defendant made by another. The principles of Trowbridge were subsequently modified by CPL § 60.25, which clearly sets forth the circumstances under which there may be such third party testimony, i.e. where the witness who had made a previous out of court identification of the defendant cannot make a present in court identification of the defendant. In fact, following the enactment of CPL § 60.25 the Court of Appeals, in People v. Patterson, 93 NY2d 80, 688 NYS2d 101 (1999), recognized that "the testimony of a third party non-identifying witness is allowed as evidence-in-chief under the statute only when coupled with the real identifying witness's testimony as to the prior identification (citation omitted)." This statement, however, cannot be read in a vacuum. It must be recognized that the court in Patterson was addressing the testimony of a third party non-identifying witness regarding an identification made by another at a police arranged line up.

The year after Patterson was decided, the Court of Appeals issued its decision in The Matter of Danny R., 50 NY2d 1026, 431 NYS2d 687 (1980), making it clear that where the identification that is being testified to by a third party meets some other hearsay exception, such as an excited utterance, that is something separate and distinct from the limitations of CPL § 60.25 and Patterson. As the court held in Danny R., the statement of identification:

was elicited through the testimony of the arresting officer, that the victim screamed That's him' when the officer brought appellant back to the area where the robbery occurred. This statement was properly admitted as a spontaneous declaration, and we find no merit to the appellant's suggestion that CPL 60.25 was meant to alter the rule recognizing the admission of such evidence in criminal prosecutions or similar proceedings as an exception to the hearsay rule.

This holding was confirmed in People v. Buie, 86 NY2d 501, 634 NYS2d 415 (1995) wherein the court reiterated that "a police officer's testimony that a robbery victim screamed, That's him,' when she saw the juvenile in police custody was admissible as an excited utterance notwithstanding the antibolstering' rule of C.P.L. 60.25 (citation omitted)." To the same effect are People v. Grant, 113 AD2d 311, 497 NYS2d 23 (2nd Dept. 1985), wherein the admission into evidence of a similar spontaneous declaration was affirmed, the court "find[ing] no merit to defendant's claim that the testimony of the police witnesses in this case violated the rule set forth in People v. Trowbridge, 305 NY 471, 113 NE2d 841 (cf. Matter of Danny R., supra .);" and People v. Nalty, 160 AD2d 958, 554 NYS2d 935 (2nd Dept. 1990), wherein the court held that [*6]the third party witness' "hearsay statement identifying the defendant Nalty as the guy with the gun', was properly admitted into evidence as an excited utterance (citations omitted)." See also: the companion case of People v. Rowley, 160 AD2d 963, 554 NYS2d 933 (2nd Dept. 1990) to the same effect.

Based upon all of the forgoing, the court finds that the statements in question may be admitted as non-testimonial excited utterances, even in the absence of Mr. Bennett at trial.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

April 30, 2010

___________________________

ANDREW M. ENGEL

J.D.C.