Issues before the Court: (1) Was the defendant entitled to submission to the jury of third-degree assault as a lesser included offense of the charged counts of first- and second-degree assault, on the theory that the jury could have found that the complainant’s injuries were not caused by a dangerous instrument?  (2) Did the trial court err in admitting the call between the complainant and the 911 operator as an excited utterance? 

 

Held: In a short memorandum decision devoid of any relevant facts (notwithstanding this was  a fully briefed case), a majority of the Court (Judges Rivera and Wilson predictably dissenting) held (1) that the defendant failed to show the necessary “reasonable view,”and that charging third-degree assault would have forced the jury to resort to “sheer speculation;” and (2) “Assuming, without deciding, that it was error to admit the 911 call, any such error would have been harmless.”         

 

CAL Observes: One wonders what the majority members of the Court see as their job description.  Certainly, it doesn’t appear to be addressing the law and the facts presented by the case before it in a meaningful or thoughtful way, as one might dare to expect from the highest Court in New York State.   Only by reading Judge Rivera’s dissent does one see that the issues before the Court were hardly the no-brainers suggested by this worthless Memorandum opinion (except for contextless, general quotes our adversaries will surely freely cite against us in the future), or that the outcome could (and should) have been different.

 

From Judge Rivera’s thorough explication of the facts, it is clear that there was a legitimate jury question concerning whether the defendants used a gun to assault the complainant, as was claimed by the complainant at trial.  The complainant’s own testimony about the location and nature of the attack allowed for his injuries to have been caused other than by a gun; the physician who treated the complainant testified that the injuries were caused by a sharp object of uncertain material; and the complainant’s credibility was impeached in a number of important respects, such that the jury could have drawn the inference that his injuries were inflicted by a sharp edge in the stairwell, and not by a gun.  The majority’s utter refusal to engage with this evidence and instead inaccurately state that submission of the lesser would have required the jury to speculate is sad news for defense practitioners who still hold out hope for a fair shake from this Court. 

 

As to the second issue, Judge Rivera again convincingly showed, through meticulous discussion of the evidence at trial, that the complainant’s 911 call was “anything but spontaneous and without forethought,” and could not be dismissed as harmless on the full record.

 

Finally, the Almonte decision, like the Cummings decision [People v. Twanek Cummings, 31 N.Y.3d 204 (2018)] before it, invites a challenge by trial practitioners to the very foundation for excited utterances.  Both the majority and Judge Rivera declined to address this unpreserved issue.  Judge Rivera advised defendants to develop a record below as to the “state of the science” with respect to our evolving understanding of an individual’s capacity to fabricate under stressful conditions.  We urge trial practitioners to object to evidence proffered under the excited utterance exception to the rule against hearsay as based on discredited assumptions about the reliability and accuracy of such out-of-court statements, and ask for a hearing on the matter.  (See CAL’s July edition of Issues to Develop at Trial for a fuller discussion of this challenge).