*1 The defendant was initially charged with one count of Strangulation in the Second Degree (PL §121.12); one count of Assault in the Third Degree (PL §120.00 [1]); three counts of Endangering the Welfare of a Child (PL §260.10 [1]); one count of Criminal Obstruction of Breathing or Blood Circulation (PL §121.11 [a]); one count of Aggravated*2
Harassment in the Second Degree (PL §240.30 [4]); and one count of Harassment in the Second Degree (PL §240.26 [1]). On December 2, 2016, the sole felony count of Strangulation in the Second Degree (PL §121.12) was dismissed, the People answered ready on the first party misdemeanor complaint and the matter was deemed an information.The People seek to introduce at trial a 911 call placed on the night of the alleged incident by the complainant’s son stating, among other things, that his stepfather choked his mother. Throughout the call, a female voice, which is clearly the caller’s mother (he refers to her as “mom”), is heard in the background sometimes correcting the caller’s answers to the 911 operator’s questions and at times discussing with him in Spanish and English the answers to the questions. The People have informed the Court and defense counsel that neither the caller nor his mother are expected to testify at trial.The People seek to introduce the 911 call under the excited utterance and present sense impression exceptions to the hearsay rule. The defense maintains that the call should not be admitted because it is not an excited utterance or present sense impression and because the call violates the Confrontation Clause under Crawford v. Washington, 541 US 36 (2004).Hearsay is “an out-of-court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement.” Guide to NY Evid Rule 8.00, Admissibility of Hearsay; see also People v. Edwards, 47 NY2d 493 (1979); People v. Nieves, 67 NY2d 125 (1986); People v. Robinson, 27 Misc 3d 1216(A) (NY Dist Ct, Nassau County 2010). Out-of-court statements may be introduced into evidence “only if they fall within one of the recognized exceptions to the hearsay rule.” People v. Brensic, 70 NY2d 9, 14 (1987). Since it is the People who seek to introduce the 911 call into evidence, they have the burden of proving that the call falls under an exception to the hearsay rule. People v. Cantave, 21 NY3d 374, 381 (2013); People v. Brensic, 70 NY2d 9, 14 (1987) citing People v. Nieves, 67 NY2d 125, 131 (1986).The People concede, and the Court agrees, that it is unclear whether the caller actually witnessed the alleged incident or if he was merely repeating what was told to him by his mother. People’s Memorandum of Law, 14. Since the People have the burden, and they concede the foregoing, the Court finds that the statements on the 911 call constitute double hearsay and both the caller’s and the mother’s statements to the caller must conform to an exception to the hearsay rule.
