You are here: / / IN A RARE REVERSAL OF A BENCH TRIAL ON EVIDENTIARY GROUNDS, THE 1ST DEPT...
, , ,

IN A RARE REVERSAL OF A BENCH TRIAL ON EVIDENTIARY GROUNDS, THE 1ST DEPT DETERMINED FOUR OUT-OF-COURT STATEMENTS ALLEGEDLY MADE BY THE VICTIM IN THIS SEXUAL-OFFENSE CASE SHOULD NOT HAVE BEEN ADMITTED UNDER THE “EXCITED UTTERANCE” OR “PROMPT OUTCRY” THEORIES; THE COURT NOTED THAT ONLY THE FACT OF THE COMPLAINT, NOT THE ACCOMPANYING DETAILS, ARE ADMISSIBLE AS A “PROMPT OUTCRY” (FIRST DEPT). ​

The First Department, reversing defendant’s conviction after a nonjury trial, determined four out-of-court statements made by the alleged victim in this sexual-offense case should not have been admitted a “excited utterances.” Although two of the statements were “prompt outcries,” under that theory only the fact of a complaint, not the details (as provided here) are admissible:

… [T]he trial court admitted four statements made by the alleged victim following the incident, reasoning that they were admissible both as excited utterances and prompt outcries. This was error. The alleged victim’s out-of-court statements did not qualify as excited utterances and should not have been admitted for their substance under that hearsay exception …  . Although two of the four statements were correctly admitted under the alternative theory that they constituted prompt outcries, under this exception, “only the fact of a complaint, not its accompanying details” is admissible … . It is clear from the record that the trial court considered all four hearsay statements for their substance, and thus, there can be no presumption that the court, as the finder of fact, considered only competent evidence … .. Given the People’s strong reliance on the hearsay statements to prove its case, and the court’s indication that it intended to review the written statement that was in evidence during deliberation, we cannot say that “the proof of the defendant’s guilt, without reference to the error, is overwhelming” and that the error was therefore harmless … . People v Gideon, 2022 NY Slip Op 01746, First Dept 3-15-22

​Practice Point: In this nonjury sexual-offense prosecution the court erred by admitting out-of-court statements by the alleged victim under the “prompt outcry” theory. Only the fact of the complaint is admissible, not the accompanying details.

 

You might also like
AN INDIVIDUAL CORPORATE OFFICER, AS OPPOSED TO THE CORPORATION, CAN NOT BE HELD STRICTLY LIABLE FOR SEXUAL HARASSMENT UNDER THE NYC HUMAN RIGHTS LAW UNLESS THE OFFICER ENCOURAGED, CONDONED OR APPROVED THE SPECIFIC DISCRIMINATORY CONDUCT; COMPLAINT AGAINST THE CORPORATE OFFICER DISMISSED (FIRST DEPT).
PLAINTIFF WAS INJURED USING A GRINDER WHICH DID NOT HAVE A SAFETY GUARD, THE LABOR LAW 241 (6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
NON-MANDATORY STANDARDS WHICH ARE GENERALLY ACCEPTED CONSTITUTE SOME EVIDENCE OF NEGLIGENCE, EVIDENCE OF SIMILAR ACCIDENTS AT OTHER SUBWAY STATIONS PROPERLY ADMITTED IN THIS SUBWAY-PLATFORM GAP SLIP AND FALL CASE (FIRST DEPT).
KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS.
RESULTS OF NYPD DISCIPLINARY TRIALS ARE PERSONNEL RECORDS EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.
GIVING THE CORRECT “PRESUMPTION OF INNOCENCE” JURY INSTRUCTION THREE TIMES WITHOUT ACKNOWLEDGING THE ERRONEOUS INSTRUCTION WAS REVERSIBLE ERROR; CROSS-EXAMINATION ABOUT A CIVIL SUIT AGAINST A POLICE OFFICER WHO ALLEGEDLY SHOT THE PLAINTIFF SHOULD HAVE BEEN ALLOWED; THE JUDGE SHOULD HAVE HELD AN IN CAMERA REVIEW OF A POLICE OFFICER’S DISCIPLINARY RECORD (FIRST DEPT). ​
TO BE ENTITLED TO SUMMARY JUDGMENT BASED ON A PATIENT’S FAILURE TO SHOW UP FOR AN INDEPENDENT MEDICAL EXAMINATION (IME), THE NO-FAULT INSURER MUST SHOW BOTH THAT THE PATIENT DID NOT SHOW UP AND THE REQUEST FOR THE IME AND THE SCHEDULING OF THE IME COMPLIED WITH THE REQUIRED TIME-FRAMES (FIRST DEPT).
THE ALLEGATION A SCAFFOLD COLLAPSED AND FELL ON PLAINTIFF SUPPORTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT DEMONSTRATE THE SCAFFOLD WAS DEFECTIVE; THE FACT THAT PLAINTIFF DID NOT SEE THE SCAFFOLD FALL WAS IRRELEVANT (FIRST DEPT).

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

THE JUDGE SHOULD NOT HAVE RELIED ON EVIDENCE GIVEN AT A MATERIAL WITNESS HEARING,... PLAINTIFF WAS WALKING UP AN EARTHEN RAMP WHEN HE WAS STRUCK BY AN EXCAVATOR...