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STATEMENTS MADE BY THE COMPLAINANT TO POLICE OFFICERS HOURS AFTER THE ALLEGED INCIDENT SHOULD NOT HAVE BEEN ADMITTED AS EXCITED UTTERANCES (SECOND DEPT).

The Second Department, reversing defendant assault and criminal possession of a weapon convictions, determined the complainant’s hearsay statement should not have been admitted as excited utterances:

… [T]he Supreme Court erred in permitting the People to elicit testimony from two police officers on the content of certain hearsay statements made to them by the complainant when they encountered her at a deli a few hours after the alleged assault. …

“An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “The essential element of this hearsay exception is that the declarant spoke while under the stress or influence of the excitement caused by the event, so that his [or her] reflective capacity was stilled” … . “[T]he time for reflection is not measured in minutes or seconds, but rather is measured by facts” … . …

… [I]n light of the amount of time that elapsed between the incident and the statements … , and the lack of evidence as to what transpired in the interim … , the People did not establish that the complainant’s capacity for reflection and deliberation remained stilled by the time she spoke to the police officers at the deli … . People v Germosen, 2021 NY Slip Op 04237, Second Dept 7-7-21

 

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT... THE VAGUE IDENTIFICATION EVIDENCE RENDERED THE CONVICTION AGAINST THE WEIGHT...