You are here: / / THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE...
,

THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES.

The Court of Appeals determined the trial court did not err when it admitted the three-year-old victim’s statements (and gestures) made within half an hour of the sexual abuse as excited utterances. The same statements made at the hospital three hours later may not have been admissible as excited utterances, but any error in admitting them was deemed harmless:

We discern no error in the admission of the child’s initial statements to her mother and father as excited utterances. The evidence established that the child was in a highly emotional state when she first stepped off the bus and that she continued to cry inconsolably as she uttered the phrase “Señor Bus” to her mother and father at home and made a licking gesture with her tongue. Those statements were made within a half hour of the startling event, while the child was still under the stress of excitement, and therefore were properly admitted at trial … .

The child repeated the same phrase and gesture to her parents three hours later at a hospital and also pulled her mother’s hand to the child’s genital area. Even accepting defendant’s contention that the stress of excitement had sufficiently abated by the time the child made those later statements, any error in their admission was harmless … . Forensic testing confirmed the presence of defendant’s DNA in the child’s underwear, and the bus matron provided unrefuted testimony that defendant had altered his bus route in such a way that the child was alone with defendant for approximately thirty minutes on the day of the incident. Additionally, the child’s mother testified that the child ran into the house screaming and crying as soon as she got off the bus, and that the child’s underwear had been pulled down and were bunched up inside the leg of her pants. The emergency room doctor found redness and a sore on the child’s genital area that he believed were the result of external trauma, i.e., touching. People v Hernandez, 2016 NY Slip Op 08396, CtApp 12-15-16

 

CRIMINAL LAW (THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/EVIDENCE (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/HEARSAY (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/EXCITED UTTERANCES (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)

You might also like
DEFENDANT’S CHALLENGE TO CERTIFICATION AS A SEX OFFENDER WAS FIRST RAISED IN THE APPELLATE DIVISION AND WAS NOT PRESERVED FOR CONSIDERATION BY THE COURT OF APPEALS; THE ILLEGAL SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY BECAUSE SORA CERTIFICATION IS NOT PART OF THE SENTENCE (CT APP).
Where a Defendant Has Been Convicted of an Armed Felony or an Enumerated Sex Offense Pursuant to CPL (Criminal Procedure Law) 720.10(2)a)(ii ie (iii), Even If the Defendant Has Not Requested or Has Explicitly Waived “Youthful Offender” Status, the Court Must Determine, On the Record, Whether Mitigating Circumstances Exist, and, If So, Must Determine On the Record Whether the Defendant Should Be Adjudicated a Youthful Offender
NEW YORK CITY POLICE DEPARTMENT, IN RESPONSE TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST, PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP).
No Private Right of Action Against Bank for Failure to Comply with Exempt Income Protection Act (CPLR Article 52)
Evidence of Prior Violent Act by Defendant Properly Admitted to Refute “Extreme Emotional Disturbance” Affirmative Defense
Absent a Clear Due Process Violation, the Correct Remedy for Failure to Explain Why a Witness Requested by the Inmate Did Not Testify (a Rule Violation) Is a New Hearing, Not Expungement
EVIDENCE OF AN ALLEGED PRIOR IDENTICAL SEXUAL ASSAULT NOT ADMISSIBLE TO SHOW INTENT, MOTIVE, OR AS BACKGROUND EVIDENCE, CONVICTION REVERSED.
AN INCIDENT WHICH “COULD OR SHOULD HAVE REASONABLY BEEN ANTICIPATED” IS NOT AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (CT APP). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT... DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED...