Decision and Order The defendant, Servio Alvarez, is charged with committing the crimes of Aggravated Criminal Contempt [Penal Law §215.52(1)] and Criminal Contempt in the First Degree [Penal Law §215.51(B)(5)]. These charges stem from a domestic violence incident on or about May 26th, 2018, in New York County, wherein Defendant assaulted and caused physical injury to the complainant while the complainant had a valid order of protection against him.Defendant opposes the admission at trial of the complainant’s out-of-court statements contained in both a recorded 911 call and body camera footage from a police officer, arguing that the introduction of these statements violate both the hearsay rule and Defendant’s Confrontation Clause rights.BACKGROUNDBefore the start of trial, this Court conducted an in limine hearing to assess the admissibility at trial of the complainant’s out-of-court statements contained in the recorded 911 call, and the body camera footage from one of the responding police officers.Defendant opposes the admission at trial of the complainant’s statements from both the 911 call and body camera footage on two grounds. First, Defendant argues that these statements are inadmissible hearsay that do not fall within the excited utterance exception to the hearsay rule, and second, that these statements are testimonial in nature and thus violate the Defendant’s Confrontation Clause rights, as guaranteed by the United States Constitution, the New York State Constitution, and the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004) and its progeny. Defendant further opposes the introduction of any testimony that stems from this underlying hearsay.Conversely, the People contend that the complainant’s out-of-court statements contained in the 911 recording and body camera footage are admissible under the excited utterance exception to the hearsay rule, and furthermore, that these statements are non-testimonial in nature, and thus do not violate the Defendant’s constitutional rights.On the consent of the parties, both the 911 recording and the body camera footage were marked in evidence and played in open court for the limited purpose of the in limine hearing. Upon the Court’s request, the People submitted a transcript of the recorded 911 call and body camera footage. The People also called Police Officer Robayo, the officer wearing the body camera from which the relevant footage was taken. This Court fully credits Officer Robayo’s testimony.HEARINGOn or about May 26th, 2018, Defendant was present in the complainant’s apartment, despite the complainant’s then-valid order of protection against him. At around 10:00 PM that night, Defendant physically attacked the complainant, strangling her to the point of unconsciousness, and leaving bruises on her face and upper body. Defendant’s assault was not limited to this late-night altercation but instead consisted of a sustained series of continuous beatings that lasted through the night, until the complainant was able to escape the apartment when Defendant fell asleep at approximately 6:15 AM the following morning.The complainant’s flight from the apartment led her to a nearby post office, where a postal worker called 911 on behalf of the complainant. During that call, the complainant spoke with the 911 operator, as well as emergency medical services. Minutes after the 911 call was placed, two New York Police Department officers responding to the call approached the complainant on the sidewalk. The officers conversed with her while she led them back through the apartment building’s lobby, up the elevator, and into the apartment, where the officers awoke the sleeping Defendant and arrested him.The People introduced into evidence as Court Exhibit 3 the transcript of the recorded 911 call. The transcript reads as follows: [sic]911: 911 OperatorJB: Jeanette BarbagalloFV: Female VoiceEMS: Ambulance911: New York City 911, do you need police, fire or medical…New York CityFV: Hello911: Hello ma’amFV: Yes, I’m at 11 Hillside Avenue911: Ok, that one…one Hillside Avenue, what are the cross streets?FV: What’s the cross street. Broadway911: I’m reading Broadway and Bogardus Place. Does that sound familiar?FV: Yes…yes911: What’s the emergency?FV: We’re at the post office, and a lady I guess she got beat up…she got beat up911: How many minutes ago did this happen?FV: Like right now…like two seconds. We’re at the post office911: Do you know who did this?FV: No911: Alright hold on. Were there any weapons involvedFV: I don’t know. She just pulled up to the post office and said call the police. She doesn’t have any shoes on or anything911: Ok, help is already on the way. And you said…is she there. Can you speak? Can you ask who did this to her?JB: Hello911: Hello ma’am. Ma’am…Who injured youJB: My boyfriend911: Alright. And what’s your boyfriend’s nameJB: Servio…S…e…r…v…i…o911: What’s his last nameJB: Alvarez911: Where is he right now?JB: He’s in the apartment sleep right now911: What’s the address?JB: 11 Hillside Avenue911: So, he’s at 11 Hillside Avenue as well, ok, what apt are you in?JB: I’m in 4P…but I’m in the post office.911: Ok, so you’re in 4…he’s in what apt? 4P as in PeterJB: Yes911: Ok. At the location of one one Hillside Avenue, Manhattan, correct?JB: Yes.911: Were there any weapons involved?JB: Yes911: What did he useJB: A knife911: Ok, are you saying he has a knife or he used a knife to injure to youJB: He has a knife. He has one911: How old is heJB: 26?911: Is he white, black, Hispanic, Asian?JB: Hispanic911: Male Hispanic. And what was he wearing when he did this?JB: He had jeans and a light blue tshirt on?911: Ma’am do you need an ambulance?JB: I think so, yeah.911: Ok, hold on. I’m going to connect you to the ambulance, stay on the lineJB: Ok[911 operator connects to EMS]EMS: Hello caller are you the patient?JB: YesEMS: How old are youJB: 22EMS: What is the medical emergencyJB: I was beat up. I have bruising on my head, my handsEMS: You also have injuryJB: YesEMS: Do you feel confused or disoriented?JB: YesEMS: One second ma’amEMS: [u/i]911: I don’t have it yet because it was pre-releasedEMS: Hello ma’am, any bleeding…any [u/i]JB: No…no…not any moreEMS: Ok, one secondJB: Oh, thank god. I’m on the phone with the ambulance on this sideEMS: What is your address right now?JB: 11 Hillside AvenueEMS: Is it in the Bronx? Or Manhattan.JB: Manhattan.EMS: You said Bogardus Place, rightJB: I’m sorry. Yeah…yeah…yeahEMS: Your phone number is…JB: This isn’t my phone. This isn’t my phone. So I can’t receive calls. The police are here and I have to go talk to themEMS: I just confirm the address. Ok 11 Bogardus PlaceJB: 11 Hillside Avenue. It’s by Bogardus.EMS: It’s by Bogardus?JB: No. 11 Hillside AvenueEMS: Oh, 11 HillsideJB: Yes…thank you so muchEMS: Help will be there as soon as possibleJB: Thank youEMS: Thank youThe People introduced into evidence as Court Exhibit 4 the transcript of the body camera footage. The transcript reads as follows: [sic]V=victimMC=male copFC=female copV: I live in this building right here. My boyfriend came over real drunk and he just started beating on me since like 10 o’clock last night.FC: Is he still there?V: Yeah, He fell asleep. And I just ran out as fast as I could.FC: Alright. Let’s go. Do you want to come with me?V: As far as I know he’s still there, I didn’t see him leave.FC: You didn’t see him leave or anything. How long ago did you come out here?V: Like 5 minutes agoMC: Do you have keys to your apartment?V: I left the door a little open.MC: Ok, you said he was beating you with a fist?V: Yes. Open…closed hand. u/iFC: What’s the apt. 4Peter[u/i]FC: Do you know where it is on him?V: It could be in his back pocket or somewhere else.MC: Do you normally fight?V: I have an order of protection against him from January.MC: Does it expire?V: It’s still active.FC: He’s still living here? Or he just came over for the night?V: No he’s just visiting.FC: What happened that you need order of protection?V: Same thing happened.**walking up to the door, inaudible talking**Police Officer Matthew Robayo authenticated the body camera footage and testified that he responded to the complainant’s 911 call. Upon his arrival at the scene, he observed the complainant standing on the street barefoot, in a disheveled state with bruises on her face. The first thirty seconds of the body camera footage at issue are silent. Officer Robayo explained that, while the camera continuously records video on a “standby” mode, the audio function must be manually activated. Officer Robayo activated the audio function and began speaking with the complainant. Officer Robayo further testified that when he approached the complainant he asked her what happened. The transcript referenced above reflects the ensuing conversation.ANALYSISThe Excited Utterance Exception to the Hearsay RuleAs a preliminary matter, this Court finds that the complainant’s statements contained in the 911 call recording and the body camera footage constitute hearsay, out-of-court statements offered for the truth of the matter asserted. People v. Buie, 86 N.Y.2d 501 (1995), citing People v. Caviness, 38 N.Y.2d 227 (1975). It is well settled that hearsay statements “may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable.” Nucci ex rel. Nucci v. Proper, 95 N.Y.2d 597 (2001).Out-of-court statements offered for the truth of the matter asserted that would otherwise be inadmissible hearsay may be properly admitted into evidence if they fall under the ‘excited utterance’ exception to the hearsay rule. The rationale behind the exception is that certain events can be so traumatic, stressful or disquieting as to “render the observer’s normal reflective processes inoperative” (People v. Vasquez, 88 N.Y.2d 561 [1986]), ensuring that, since the declarant is incapable of fabrication, any statements made during this precipitous state are inherently reliable. (People v. Johnson, 1 N.Y.3d 302 [2003]). Trial courts determining the applicability of the excited utterance exception “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.” (People v. Edwards, 47 N.Y.2d 493 [1979]).“The stress of excitement” cannot be calculated by a bright-line rule or arbitrary time limit. “The time for reflection is not measured in minutes or seconds, it is measured by facts.” (People v. Boodle, 47 NY2d 398 (1979), citing People v. Gilbert, 199 N.Y. 10 [1910]). The length of the interval between the conclusion of the startling event and the statements to be brought in under the excited utterance exception is informative, but not dispositive. Each case must be assessed on the attendant facts and circumstances. Other factors that courts have turned to while analyzing whether out-of-court statements satisfy the excited utterance exception include: the tenor and agitation evidenced in the declarant’s voice (People v. Cantave, 21 N.Y.3d 374 [2013], the declarant’s vital signs and conversational ability (People v. Norton, 79 N.Y.2d 808 [1991]), the nature of the initial traumatic event and the subsequent activities of the declarant (Edwards, 47 N.Y.2d at 497), whether the out-of-court statement was given in response to an inquiry, as well as the nature of the inquiry and the manner of the inquirer (id. at 498-499), whether the declarant has suffered a serious injury (People v. Johnson, 1 N.Y.3d 302 [2003]), and whether the declarant had sufficient time and motive to fabricate the out-of-court statements (People v. Norton, 164 A.D.2d 343 [1st Dep't 1990]). 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” (Edwards, 47 NY2d at 497 [1979]).The record before us indicates that on May 26th, 2018, Defendant was in the complainant’s apartment. At that time, the complainant had a temporary order of protection in effect against Defendant. Defendant assaulted the complainant around 10:00 PM of that evening, in an attack that was ongoing throughout the night, lasting until the dawn of the following day, May 27th. Whether in fact the assault occurred closer to 10:00 PM upon the defendant’s initial arrival at the complainant’s apartment, or sometime throughout the evening and early morning hours, is not dispositive of the admissibility of these out-of-court statements.As noted by Defendant, the complainant’s voice on the 911 call recording sounds largely flat and unhurried. However, this Court notes that the tenor of her voice is but one factor for courts to consider when evaluating whether the declarant’s out-of-court statements were made under the “impetus of studied reflection” (id.). The complainant’s physical demeanor on the body camera footage1, including bruising on her upper body, supports an inference that she was clearly suffering from the stress of a continuing traumatic event. The video presented supports this Court’s conclusion that the complainant ran out into the rain at the first opportunity she had, barefoot, without apartment keys, appropriate clothes or an umbrella, seeking immediate aid by running into the arms of a stranger — the postal worker who placed the initial call to 911. Considering these surrounding circumstances, this Court is satisfied that the stress of the traumatic event the complainant had suffered had not dissipated at the time of her out-of-court statements, and is compelled to agree with the notion that the complainant who did not stop to put on shoes before venturing out onto the streets in the rain did not have sufficient time to fabricate deceptive or calculated statements. Thus, this Court finds that the complainant’s out-of-court statements fall under the excited utterance exception to the hearsay rule and are not barred from admission on hearsay grounds.The Right to Confront Witnesses under the Confrontation ClauseIn addition to the hearsay argument, Defendant opposes admission of the complainant’s out-of-court statements into evidence at trial on Confrontation Clause grounds. The Confrontation Clause of the United States Constitution guarantees a defendant’s right to confront the witnesses who may be used against him at trial. “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him” (U.S. Const. amend. VI). The same right is similarly guaranteed by the New York State Constitution (N.Y. Const. art. I, §6).Interpreting the Confrontation Clause, the United States Supreme Court held in the seminal case Crawford v. Washington, 541 U.S. 36 (2004), that “testimonial” out-of-court statements made by a declarant who is unavailable for trial will be admitted only where the defendant has had a prior opportunity to cross-examine the declarant. The Supreme Court delved further into the question of which out-of-court statements are “testimonial” in Davis v. Washington, 547 U.S. 813 (2006), a case decided with the companion case Hammon v. Indiana. Both cases called for the Court to determine if the complainant’s out-of-court statements in response to police inquiry were testimonial, and thus, under the circumstances, barred by the Confrontation Clause.In Davis, the statements at issue were made by a domestic violence victim to a 911 operator during an emergency call. During the call, the victim described events as they were happening, speaking consistently in the present tense, e.g. describing her ex-boyfriend as “jumpin’ on me” and “usin’ his fists” (Davis, 547 U.S. at 817). Police arrived within four minutes of the 911 call, finding the complainant victim “shaken” and “frantie,” with “fresh injuries on her forearm and her face” (id. at 818). In Hammon, the relevant out-of-court statements were made by the victim to police officers responding to a reported domestic disturbance. The responding officers found a broken heating unit near pieces of glass on the ground inside the house, and noted the victim appeared “somewhat frightened,” but were told “nothing was the matter.” One of the officers talked to the victim separately to ask her “what had occurred,” later testifying that he was investigating “what had happened” (id. At 819-820).In evaluating whether or not these statements were testimonial, the Court held that “statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Conversely, the Court held statements are “testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” (id. at 822). The Court concluded that, viewed objectively, the Davis statements described events “as they were actually happening,” representing a “call for help against bona fide physical threat.” The “frantic” statements given to the 911 operator were intended to resolve the emergency, not describe what happened previously (id. at 827). The Hammon statements, by comparison, took place after the violent event — the emergency — had concluded. Her statements were given in response to a police inquiry to determine not what was happening, but what had already happened. Additionally, compared to Davis, the involved police inquiry was somewhat more structured and formal (id. at 829-830).The Supreme Court also noted that police inquiries which begin as addressing an ongoing emergency situation can reach a point wherein the emergency response transitions into a more structured police interrogation. In this way, nontestimonial statements can “evolve” into testimonial statements. Davis calls on trial courts to exclude those sets of statements that can properly be deemed testimonial through in limine procedure, as this Court is considering in the current matter. (id. at 828-829).Our state’s high court has also ruled on the testimonial nature of out-of-court statements in a case with a fact pattern similar to the one currently presented before this Court. In People v. Bradley, 8 N.Y.3d 124 (2006), the People’s only witness at trial was a police officer who, responding to a 911 call, met the complainant at the door of an apartment, where she was “visibly shaken, had blood on her face and clothing, was bleeding profusely from one hand, and walked with a noticeable limp” (id. at 125-126). The officer testified that he “asked her what happened,” and was told that the defendant had thrown her through a glass door. This attack occurred in violation of two orders of protection that the complainant had against the defendant. The complainant’s out-of-court statements were admitted under the excited utterance exception, and after a jury trial, the defendant was convicted of aggravated criminal contempt, criminal contempt in the first degree, and assault in the third degree.The Court of Appeals affirmed the conviction, rejecting the defendant’s contention on appeal that the out-of-court statements were admitted in violation of his Confrontation Clause rights. The Court found that the facts of the case were somewhere between Davis and Hammon, as the complainant was not describing a present event while it occurred, nor were her statements given in response to detailed questioning in a secure setting. Nonetheless, the complainant’s statements were found to be “clearly not testimonial,” as they were made under circumstances objectively indicating that the purpose of the police questioning was to gather information about an ongoing emergency, not to investigate previous events for purposes of collecting evidence for a later criminal trial. The Court further noted that “asking [the complainant] ‘what happened’ was a normal and appropriate way to begin…the officer promptly entered the apartment, as an officer dealing with an emergency would be expected to do.” Although the officer’s “what happened?” question appeared to evince an intent to investigate prior happenings, the Court emphasized that the purpose behind the officer’s question is demonstrated more persuasively by the surrounding facts and circumstances — meeting an injured woman at the door and promptly entering her apartment — than by his “choice of tense.” As the out-of-court statements were deemed to be primarily for purposes of securing the complainant’s safety in the face of a potential emergency, the statements were found to be non-testimonial. (id. at 127-128).The out-of-court statements contained in the recorded 911 call in the instant case were clearly intended to address an ongoing emergency. The questions posed by the 911 operator, as well as those from emergency medical services, were designed to elicit information that would furnish responding police officers and medical technicians with knowledge of the situation they would be confronting, such as the location of Defendant, the potential use of deadly weapons, and a description of Defendant. Such questions are intended by Crawford and Davis to be non-testimonial in nature, and thus do not amount to a violation of Defendant’s Confrontation Clause rights.Similarly, some of the complainant’s statements from the body camera footage were non-testimonial in nature. As in Bradley, the facts of this case are somewhere between Davis (describing an ongoing event as it occurred) and Hammon (relaying information about an event some time after its conclusion, while in a secure setting removed from the emergency).It is true that the complainant here described her assault in the past tense, as Defendant had already fallen asleep, and she made the statements at issue while standing outside of her apartment building. Furthermore, while the technical processes of the body camera rendered the first thirty seconds or so of the footage silent, Police Officer Robayo testified that he commenced his conversation with the complainant by asking her “what happened,” which could be deemed an investigation designed to elicit testimonial statements. However, like Bradley, this Court finds that “the officer’s purpose in questioning [the complainant] is shown more persuasively by the facts that came to his attention…and by the action he took after [the complainant] answered his question…than by his choice of tense” (Bradley, 8 N.Y.3d at 128). Here, the responding police officers encountered an injured and distressed woman within minutes of receiving a 911 call, standing out in the rain with no shoes. They immediately accompanied her back to the scene of the traumatic event, without lingering to delve for more information. Their questions at this stage were “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency” (Davis, 547 U.S. at 822). Thus, the complainant’s statements given in response to these questions, from her first audible statement at the beginning of the body camera footage up to and including the statement “I left the door a little open,” are admissible as an excited utterance and are non-testimonial in nature.However, as the Supreme Court reasoned in Davis, non-testimonial statements can “evolve” into testimonial statements (Davis, 547 U.S. at 828). The police officers’ questions after the complainant’s statement “I left the door a little open” primarily relate to the nature and history of Defendant and the complainant’s relationship – a line of inquiry designed to investigate the details not only of the immediate incident, but also any other similar episodes that may have involved the Defendant. The complainant’s responses to such questions are clearly testimonial, and, given that the complainant is unavailable for trial with Defendant having had no prior opportunity to cross-examine her, must be barred under the Confrontation Clause, pursuant to Crawford v. Washington, 541 U.S. 36 (2004).CONCLUSIONThis Court, having fully reviewed the 911 call and accompanying transcript, as well as the credible testimony of Police Office Robayo, finds that the People have satisfied their burden, and established to the satisfaction of this Court, that all of the declarant’s out-of-court statements in the recorded 911 call are admissible.Furthermore, this Court, having fully reviewed the body camera footage, accompanying transcript, and testimony of Police Officer Robayo, finds that the People have satisfied their burden, and established to the satisfaction of this Court, that the particular statements identified above, but not all of the declarant’s out-of-court statements in the body camera footage, are admissible.The foregoing constitutes the decision and Order of the court.Dated: February 13, 2019New York, NY
