777 NYS2d 274 | N.Y. Sup. Ct. | 2004
OPINION OF THE COURT
Prior to sentence, defense counsel moved for an order of this court setting aside that jury’s verdict pursuant to CPL 330.30 (1), upon the grounds that an issue arose during trial which, if raised on appeal, would result in a reversal of his conviction as a matter of law by an appellate court. Specifically, defense contends that two 911 calls introduced into evidence on the People’s case-in-chief violated the defendant’s rights under the Sixth Amendment Confrontation Clause of the Federal Constitution pursuant to Crawford v Washington (541 US 36 [2004]). By response dated April 26, 2004, the People oppose this application in its entirety.
Procedural History
Jury selection took place before this court on March 1 and March 2, 2004. On March 3, 2004, prior to openings, the People requested, inter alia, a preliminarily ruling by this court permitting them to introduce into evidence on their case-in-chief two 911 communications made within minutes of each other by a third-party witness, Andrea Conyers. In the first 911 call, Andrea Conyers screams for police assistance to stop a street fight she is witnessing between her son and her son-in-law; in the second 911 call, minutes later, she screams for an ambulance. In addition to hearing Andrea Conyers’ screams for help on these 911 calls, there are other audible background voices recognizable
The theory by which the People sought introduction of these two 911 calls was that they were excited utterances and/or present sense impressions, both exceptions to the hearsay rule. Defense counsel argued that these calls were not excited utterances and/or present sense impressions if Andrea Conyers was not called to testify at trial and that “there is an inability based on the Sixth Amendment and the Fourteenth Amendment to
On March 10, 2004, during jury deliberations, defense counsel moved for a mistrial upon the grounds that two days earlier, on March 8, 2004, the Supreme Court of the United States held in Crawford v Washington that “excited utterances from 911 calls are inappropriate to go before jurors because it lacks one thing that the constitution guarantees and that is confrontation.”
Conclusion of Law
Preliminarily, Criminal Procedure Law § 330.30 provides that, at anytime after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court (CPL 330.30 [1]). Thus, claims brought pursuant to CPL 330.30 must be claims which were properly preserved on the record during trial (see, CPL 470.05 [2]).
In support of this argument, defense in his motion papers argues that inasmuch as Andrea Conyers did not testify at trial and was not subject to cross-examination, the defendant’s state and federal constitutional rights to confrontation were violated pursuant to Crawford v Washington since those 911 calls contained “testimonial” statements. The People in their responding papers argue that the “testimonial” aspect of the
On March 8, 2004, the United States Supreme Court in Crawford v Washington overturned the well-settled rule of Ohio v Roberts (448 US 56 [1980]), which held that the admission of an unavailable witness’s statements against a criminal defendant at trial did not violate the Confrontation Clause, provided that the statement bore adequate indicia of reliability, such as, falling within a firmly rooted hearsay exception or bearing a particularized guarantee of trustworthiness. Rejecting the Roberts rule, the Supreme Court held that the Sixth Amendment’s Confrontation Clause bars the use of a “testimonial” statement made by a witness who does not appear at a criminal trial, unless the witness is unavailable to testify at trial and was subject to cross-examination at the time the statement was made (Crawford v Washington, 541 US 36 [2004]). Although the Crawford court (541 US at —, 124 S Ct at 1374) “le[ft] for another day any effort to spell out a comprehensive definition of ‘testimonial,’ ” the Court stated that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” The Court further found that “[w]here [a] nontestimonial [statement] is at issue, . . . such statement . . . [would be] exempted from [the] Confrontation Clause . . . altogether” (supra, 541 US at —, 124 S Ct at 1374).
As a preliminary matter, a decision of the United States Supreme Court is given retroactive effect in criminal cases when it is constitutional in nature and affects the determination of guilt or innocence (Brown v Louisiana, 447 US 323 [1980]; People v Morales, 37 NY2d 262 [1975]). Thus, this court’s ruling permitting the People to introduce into evidence in their case-in-chief the two 911 calls as “excited utterances” (see, White v Illinois, 502 US 346 [1992]; People v Simpson, 238 AD2d 611 [2d Dept 1997], lv denied 90 NY2d 910 [1997]) is of constitutional dimension and therefore subject to Crawford analysis although this court’s ruling predated the Crawford decision.
For this reason, inasmuch as this court finds that the 911 calls introduced into evidence at trial were not testimonial in nature as that term is used in Crawford v Washington, the defendant’s constitutional right to confrontation was not violated at this trial. Therefore, defense counsel’s motion to set aside the verdict pursuant to CPL 330.30 (1) is denied in its entirety.
. As testified to by the complainant Juan Harrow on the People’s case-in-chief.
. See, trial transcript, dated Mar. 3, 2004, at 9-10.
. See, trial transcript, dated Mar. 3, 2004, at 11-12.
. See, trial transcript, dated Mar. 10, 2004, at 2.