Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, January 18, 2018

Steven D. Kommor for appellant.

Madeline Singas, District Attorney (Jason Richards and Brian Witthuhn of counsel), for respondent.

Ordered that the judgment of conviction is affirmed.

Defendant was charged with three counts of endangering the welfare of a child (Penal Law § 260.10 [1]) and three counts of assault in the third degree (Penal Law § 120.00 [1]). The charges were based on allegations that defendant had assaulted the complainant, his ex-wife, on three separate occasions; that two of the assaults had occurred in front of their minor son; and that defendant had intentionally left the son unattended in a vehicle.

At a jury trial, the People introduced into evidence the testimony of the complainant as to the alleged incidents, as well as a recording of a 911 call that the complainant had made following the last alleged assault. The People also introduced the testimony of the complainant's mother, who testified, among other things, that the relationship between defendant and the complainant was "not good" and that, on the day when the first assault had allegedly occurred, she had observed injuries on the complainant's nose and hands. Following the trial, defendant was convicted of one count of assault in the third degree (Penal Law § 120.00 [1]), the count based on the last assault, and was acquitted of the remaining charges. On appeal, defendant challenges the admission of the 911 recording and the complainant's mother's testimony.

A 911 recording is generally inadmissible on grounds of both hearsay if "admitted for the truth of the matter asserted" (People v Buie, 86 NY2d 501, 505 [1995]) and improper bolstering of a testifying witness's in-court testimony (see People v Smith, 22 NY3d 462, 465 [2013]), unless it falls under an exception to the hearsay rule as, for example, an excited utterance (see People v Buie, 86 NY2d at 511; People v Clarke, 101 AD3d {**58 Misc 3d at 97}897, 898 [2012]; People v McCray, 53 Misc 3d 19, 26 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). The excited utterance exception applies where it is shown that the statement was "made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication" (People v Johnson, 1 NY3d 302, 306 [2003]; see People v Cantave, 21 NY3d 374, 381 [2013]; People v Brown, 70 NY2d 513, 519-520 [1987]; People v Edwards, 47 NY2d 493, 497 [1979]).

In determining whether to admit a statement as an excited utterance, the trial court must assess the nature of the external startling event, the amount of time that has elapsed between the occurrence and the statement, and the activities of the declarant in the interim, to ascertain whether he or she was under the stress of excitement sufficient to still his or her reflective faculties, "thereby preventing opportunity for deliberation which might lead the declarant to be untruthful" (People v Edwards, 47 NY2d at 497; see People v Gantt, 48 AD3d 59, 64 [2007]). With respect to the amount of time elapsed,

"there can be no definite or fixed period of time within which the declaration must have been made, and each case must depend upon its own circumstances[; t]he 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 at 306 [internal quotation marks and citation omitted]; see People v Brown, 70 NY2d at 521).

"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" (People v Edwards, 47 NY2d at 497; see People v Brown, 70 NY2d at 519-520). Ultimately, the trial court's decision on the admissibility of a statement should not be disturbed on appeal absent a clear abuse of discretion (see People v Carroll, 95 NY2d 375, 385 [2000]; People v Soriano, 121 AD3d 1419, 1422 [2014]; People v Gantt, 48 AD3d at 64; People v McCray, 53 Misc 3d at 26-27).

In the case at bar, the 911 recording was admitted into evidence under the excited utterance exception to the hearsay rule. During the 911 call, the complainant told the 911 operator{**58 Misc 3d at 98} that defendant "was abusing" her and asked the operator to send "someone right away." Throughout the recording, the complainant can be heard breathing heavily. The tenor of the call reflected that the complainant was in an agitated state and was still operating under the stress of the excitement caused by defendant's assault (see People v Leak, 129 AD3d 745, 746 [2015]). The lapse of approximately 30 minutes between defendant's alleged assault and the 911 call "is not, as a matter of law, too long" (People v Brown, 70 NY2d at 521). Although the complainant's activities in the interim cannot be determined, the evidence—including the complainant's testimony that she had previously undergone an open-heart surgery and that defendant punched her in the chest six or seven times, causing her to sustain "a sharp pain"—supported the conclusion that the complainant's statements "were not made under the impetus of studied reflection" (People v Edwards, 47 NY2d at 497; People v Valentine, 40 Misc 3d 28, 31 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and were sufficiently spontaneous to "guarantee[ ] [their] trustworthiness and reliability" (People v Cantave, 21 NY3d at 381). Therefore, it cannot be said that the trial court abused its discretion in determining that the 911 recording met the requirements to be admitted as an excited utterance. In view of the foregoing, defendant's contention that admitting the 911 recording constituted improper bolstering of the complainant's trial testimony must fail (see People v Buie, 86 NY2d at 511; [*2]People v Mack, 89 AD3d 864, 866 [2011]; People v Coward, 292 AD2d 630, 630 [2002]; People v Carr, 277 AD2d 246, 247 [2000]).

Defendant's contention that admitting the complainant's mother's testimony also constituted improper bolstering of the complainant's testimony is unpreserved for our review, as defendant never objected to the allegedly improper testimony (see CPL 470.05 [2]; People v West, 56 NY2d 662, 663 [1982]; People v Fields, 89 AD3d 861, 861 [2011]). In any event, the complainant's mother's testimony did not constitute improper bolstering, since she was testifying as to her own personal observations of the complainant's relationship with defendant and the complainant's condition at the time of the incidents (see People v Acosta, 174 AD2d 363, 364 [1991]; see generally People v Buie, 86 NY2d at 510).

Accordingly, the judgment of conviction is affirmed.

Marano, P.J., Brands and Ruderman, JJ., concur.