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EXCLUDING EVIDENCE WHICH CONTRADICTED AN IMPORTANT PROSECUTION-WITNESS’S ACCOUNT OF HIS ACTIONS RIGHT UP UNTIL THE TIME OF THE SHOOTING, AND THREE 911 CALLS WHICH QUALIFIED AS PRESENT SENSE IMPRESSIONS, DEPRIVED DEFENDANT OF HIS RIGHT TO PUT ON A DEFENSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Division in this murder case, determined evidentiary rulings excluding evidence which impeached an important witness and 911 calls admissible as present sense impressions deprived defendant of his right to present a defense. R.M. was a crucial prosecution witness. R.M. claimed to have been with his girlfriend, R.J. right up until the time of the shooting. But R.J. would have testified she was not with R.M. that day:

R.J.’s proffered testimony was probative of R.M.’s ability to observe and recall details of the shooting. At trial, R.M. testified that he was with R.J. until “seconds” before he witnessed the shooting, and that he was at the scene to walk R.J. home. Upon the People’s questioning, R.M. explained in detail his relationship with R.J., resulting in many pages of testimony as to where he met up with her that evening, the amount of time they spent together, and when they parted ways. This testimony, introduced and relied upon by the People, made R.J. an integral part of R.M.’s account of why he was in a position to witness the shooting, and placed her with him mere seconds before it occurred. Since the People’s own theory of the case placed R.J. on the scene the instant before the shooting, her testimony cannot be characterized as collateral. …

The court also erred in excluding the three 911 calls. The calls were admissible as present sense impressions. The present sense impression exception to the hearsay rule applies to statements that are “(1) made by a person perceiving the event as it is unfolding or immediately afterward” and “(2) corroborated by independent evidence establishing the reliability of the contents of the statement” … . “[D]escriptions of events made by a person who is perceiving the event as it is unfolding” are “deemed reliable . . . because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory” … . People v Deverow, 2022 NY Slip Op 03362, CtApp 5-24-22

Practice Point: Here an important prosecution witness claimed he was with his girlfriend right up until seconds before the shooting he allegedly witnessed. The girlfriend’s testimony that she was not with the witness that day should not have been excluded as collateral. In addition, three 911 calls which qualified as present sense impressions should not have been excluded. The Court of Appeals held these evidentiary errors deprived defendant of his right to put on a defense.

 

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