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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

 

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