You are here: / / DENIAL OF THE REQUEST TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER...
,

DENIAL OF THE REQUEST TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE AND THE ADMISSION OF THE 911 CALL AS AN EXCITED UTTERANCE WERE NOT REVERSIBLE ERRORS (CT APP).

The Court of Appeals, over an extensive dissenting opinion, as well as another brief dissenting opinion, determined the denial of defendant’s request for a jury instruction on the lesser included offense of assault third degree, and the admission of the 911 call as an excited utterance was harmless error. The facts are explained only in the dissent and are not summarized here:

Defendant failed to “show that there [was] a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser included offense but not the greater” … . Although “[i]n determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to [the] defendant” … , charging the lesser included offense here “would [have] force[d] the jury to resort to sheer speculation” … .

Nor does Supreme Court’s admission of the call between the victim and the 911 operator require reversal. “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 test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance'” … . Assuming, without deciding, that it was error to admit the 911 call, any such error would have been harmless … . People v Almonte, 2019 NY Slip Op 05185, CtApp 6-27-19

 

You might also like
Violation of Labor Law Can Serve as a Basis for a Damages Action by a Police Officer Against the City Re: Injuries Suffered on the Job
GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP).
THE $140 MILLION PAID BY BEAR STEARNS TO THE SEC TO SETTLE AN ACTION ALLEGING THE FACILITATION OF LATE TRADING WAS NOT A “PENALTY IMPOSED BY LAW” AND THEREFORE WAS A COVERED LOSS UNDER THE TERMS OF THE INSURANCE POLICIES (CT APP).
NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP).
General Permit System by Which Smaller Communities Obtain Authorization to Discharge Stormwater Does Not Violate Federal or State Law
EVIDENCE OF CONSPIRACY NOT SUFFICIENT TO SUPPORT CONVICTION, PRESENCE WHEN CONSPIRACY DISCUSSED BY OTHER GANG MEMBERS NOT ENOUGH (CT APP).
Writs of Coram Nobis Alleging Ineffective Assistance Not Available In the Three Specific Cases Before the Court Involving the Failure to File Notices of Appeal and the Failure to Make a “Leave to Appeal” Application to the Court of Appeals
Legal Criteria for Determining Visitation Rights of Incarcerated Father Clarified

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

INFORMATION PROVIDED TO A SUPERMARKET CHAIN ABOUT COMPETITORS’ PRICES... ANY ERROR IN FAILING TO INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES WAS HARMLESS...