People v. Cummings, 31 N.Y.3d 204

A shooting occurred on March 19, 2012; three victims were wounded after a gunman exited a minivan and fled in it. A bystander called 911 shortly afterward.
During the 911 call an unidentified voice in the background said, "Yo, it was Twanek, man! It was Twanek, man!" The People sought to admit that fragment as an excited utterance identifying defendant Twanek Cummings.
Physical evidence included Cummings' fingerprint on the minivan passenger door and cell-site data placing him in the area; no weapon was recovered and victims did not identify Cummings in a lineup.
At the first trial the court excluded the 911 brief statement; the jury deadlocked and a mistrial was declared. A successor judge later admitted the statement at retrial; Cummings was convicted of several assault and weapons counts.
On appeal Cummings argued (1) the law-of-the-case doctrine barred the substitute justice from revisiting the prior exclusion ruling, and (2) admission of the unidentified 911 statement was erroneous because there was no evidence the speaker personally observed the shooting. The Appellate Division affirmed; this Court granted leave.

Issue	People’s Argument	Cummings’ Argument	Held
Whether law-of-the-case barred a successor judge from revisiting a prior evidentiary ruling	Prior exclusion was a ruling; successor should not re-open it	Successor judge improperly revisited and reversed the earlier exclusion	Law of the case did not bar the successor judge from exercising independent discretion on an evidentiary ruling within the same trial; no per se prohibition
Whether the unidentified background statement on the 911 call was admissible as an excited utterance (i.e., whether declarant personally observed the event)	Timing and proximity to the shooting make it inferable the speaker was at/near the scene and thus a reliable excited utterance; corroboration from fingerprint and circumstantial evidence	Statement was a bare, conclusory ID by an unidentified speaker; record lacks evidence that the speaker personally observed the shooting (many people converged on the scene after the shooting)	Admission was erroneous because the record lacks evidence from which a reasonable factfinder could infer the declarant personally observed the incident
Whether the error was harmless	The remaining circumstantial evidence (fingerprint, cell-site data, travel) sufficed to support the conviction	The 911 statement was the only direct identification; without it the evidence was not overwhelmingly convincing	Error was not harmless under non-constitutional standard; new trial ordered

People v. Evans, 94 N.Y.2d 499 (discusses law-of-the-case principles and when prior rulings bind later judges)
Dondi v. Jones, 40 N.Y.2d 8 (law-of-the-case and coordinate-jurisdiction principles)
People v. Fratello, 92 N.Y.2d 565 (excited utterance requires that declarant had opportunity to observe the event)
People v. Caviness, 38 N.Y.2d 227 (nonparticipant bystander may make an admissible excited utterance if shown to have had adequate opportunity to observe)
People v. Brown, 80 N.Y.2d 729 (admission of unidentified 911 caller under present-sense impression where continuous, corroborated observations supported reliability)
People v. Nieves, 67 N.Y.2d 125 (distinguishes admissibility/suppression rulings on retrial)
People v. Edwards, 47 N.Y.2d 493 (definition and rationale for excited utterance exception)
People v. Kello, 96 N.Y.2d 740 (harmless-error analysis when hearsay identification corroborated by eyewitnesses)
People v. Crimmins, 36 N.Y.2d 230 (standard for nonconstitutional harmless-error review)