| NY | Jul 3, 1979
OPINION OF THE COURT
Defendant was convicted, after a jury trial, of murder in the second degree (Penal Law, § 125.25), in connection with the brutal stabbing of 72-year-old Edna Boose. On appeal, he maintains that the admission into evidence of statements, identifying him as the attacker, made by Mrs. Boose while and immediately after being stabbed constituted reversible error. The order of the Appellate Division upholding the conviction should be affirmed. The statements of Mrs. Boose were properly received in evidence as spontaneous declarations, notwithstanding that some of them were made in response to questions posed by a person coming to her aid.
The victim resided with her husband in a fourth floor apartment in Manhattan. Defendant, who had previously resided with the couple, was well known in the neighborhood. To support himself, defendant sold watermelon slices in front of his brother Rudy’s store on the ground floor of the apartment building and used a knife and an ice pick in his business.
On the morning of the crime, defendant was observed in the lobby of the building. One hour later as Charles Simpson, Mrs.
Simpson repaired to his own apartment to drop off some packages and returned to his sister’s aid. Finally, after strenuous effort, he forced the apartment door open. Simpson quickly pulled his sister, an ice pick without its handle protruding from her chest, through the apartment door. While being dragged into the hallway, Mrs. Boose told her brother, "Don’t go in there.” Simpson asked, "What is the matter?” and the deceased replied, "Eddie will kill you.” Defendant was observed hurrying down the fire escape immediately after the crime. A knife and an ice pick handle were found in a flower pot on the fire escape.
At trial, defendant objected to the introduction of the statements of Mrs. Boose on the ground that they constituted inadmissible hearsay. The hearsay rule, of course, forbids the use of an assertion made out of court as testimony to the truth of the fact asserted (Richardson, Evidence [10th ed— Prince], § 201; People v Settles, 46 NY2d 154, 166). However, exceptions to this general exclusion have arisen in instances where there is a genuine necessity for the evidence and the circumstances surrounding the out-of-court statement assure its trustworthiness. Statements admitted pursuant to these exceptions derive their vitality not from the veracity of the declarant, but rather from their relation to the transaction from which they spring (see 6 Wigmore, Evidence [3d ed], § 1747).
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
The admissibility of an excited utterance is entrusted in the first instance to the trial court. In making that determination, the court must ascertain whether, at the time the utterance was made, the declarant was under the 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.
Tested by these criteria, we find no error in the admission of the statements of Mrs. Boose. The first set of statements — in which defendant was identified as her attacker — obviously were made when the victim was under the excitement and shock of being repeatedly stabbed in the chest with an ice
Defendant does not argue that Mrs. Boose was never under the sway of a startling event or that her excitement was dissipated at the time the second set of statements were made. Rather, he maintains that since the victim’s identification of her attacker was prompted by her brother asking her "What is the matter?”, the utterance was rendered distinctly narrative and therefore inadmissible. Case law in this State on this point is in conflict. Thus, in People v Del Vermo (192 NY 470, supra), a murder victim’s identification of defendant as his killer was admitted as a spontaneous declaration although uttered in response to a question (id., pp 487-488). Subsequent decisions, however, suggest that statements, even though made under the influence of nervous excitement, could not qualify as spontaneous declarations where brought forth by inquiries, however innocuous (Greener v General Elec. Co., 209 NY 135, 138; People v Sprague, 217 NY 373, 379).
It is unreasonable, however, to prohibit admission of these utterances in every instance in which they were prompted by a simple inquiry (see People v Arnold, 34 NY2d 548, 549; Richardson, Evidence [10th ed — Prince], § 283).
Accordingly, the order of the Appellate Division should be affirmed.
Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed.
. The development of this exception is marked by its constantly changing nomenclature. Initially, referred to as part of the res gestae (e.g., Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 9; Handel v New York R. T. Corp., 252 App Div 142, affd 277 NY 548), subsequent decisions differentiated between a true res gestae statement and a
. We note that the vast majority of jurisdictions that have reached this issue have held that the fact that an inquiry has prompted an excited utterance or spontaneous declaration is not the sole determinant of admissibility, but rather merely one factor bearing on spontaneity (see United States v Glenn, 473 F2d 191; State v Woolery, 93 Ariz 76; People v Costa, 40 Cal 2d 160; People v Kelley, 29 Ill 2d 53; Bosin v Oak Lodge Sanitary Dist., 251 Ore 554; Commonwealth v Banks, 454 Pa 401; Autry v State, 143 Tex Crim 252; State v Kwan, 174 Wash 528; Phifer v State, 64 Wis 2d 24).