People v. Cummings - 2018 NY Slip Op 03306, 31 N.Y.3d 204, 75 N.Y.S.3d 484, 99 N.E.3d 877

Rule:

A spontaneous declaration or excited utterance made contemporaneously or immediately after a startling event which asserts the circumstances of that occasion as observed by the declarant is an exception to the prohibition on hearsay. The declaration may be admitted into evidence as expressing the true belief of the declarant as to the facts observed. The admission of a hearsay statement under any exception deprives the defendant of the right to test the accuracy and trustworthiness of the statement by cross-examination. Although hearsay, excited utterances may be admissible because, as the impulsive and unreflecting responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant's belief as to the facts just observed by him, may be received as testimony of those facts. To be sure, it must be inferable that the declarant had an opportunity to observe personally the event described in the spontaneous declaration. Direct observation by the person making the excited utterance ensures that the declarant is in fact reacting to and asserting the circumstances of the event causing the excitement.

Facts:

The victims were shot on the corner of 129th St. and St. Nicholas Terrace. One of the victims called 911. About 20 seconds into the call, someone in the background can be faintly heard saying, "Yo, it was Twanek, man! It was Twanek, man!" The surveillance video did not show the scene of the shooting. Neither the shooter nor the person saying, "It was Twanek, man," can be identified from the video. During the trial of defendant Twanek Cumming, the People sought to admit the unidentified person's statement on the 911 call under the excited utterance exception to the hearsay rule. The trial court allowed admission of the statement as an excited utterance. Mr. Cummings was tried and convicted of one count of assault in the first degree, two counts of attempted assault in the first degree, two counts of criminal possession of a weapon in the second degree, and two counts of assault in the second degree. On appeal, defendant argued that the ruling was incorrect because there was no evidence from which to infer that the unidentified speaker personally observed the shooting. 

Issue:

Under the circumstances, was it proper to admit the unidentified person’s statement on the 911 call under the excited utterance exception to the hearsay rule?

Answer:

No.

Conclusion:

The Court held that the trial court’s decision to admit statement “Yo, it was Twanek, man,” heard in the background of a 911 call after three men were shot on a street corner, under the excited utterance exception to the hearsay rule was error because there was no evidence that the unidentified declarant personally observed defendant or the shooting. According to the Court, the error in admitting the statement was not harmless because no one, victim or bystander identified defendant as the shooter; the unidentified declarant's statement was the only identification evidence.