People v. Germosen

2021 NY Slip Op 04237

The People of the State of New York, respondent, v. Marcos Germosen, appellant.

Ind. No. 168/19

Supreme Court of New York, Second Department

July 7, 2021

Janet E. Sabel, New York, NY (David Crow and Jack G. Lerner of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove Sholom J. Twersky, David Winkler, and Jason Eldridge of counsel), for respondent.

REINALDO E. RIVERA, J.P. SYLVIA O. HINDS-RADIX FRANCESCA E CONNOLLY PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered November 18, 2019 convicting him of assault in the third degree, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the convictions of assault in the third degree under count 1 of the indictment and criminal possession of a weapon in the second degree under count 4 of the indictment, and vacating the sentences imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on those counts of the indictment.

In connection with an alleged domestic violence incident, the defendant was charged with, among other things, assault in the third degree for striking and causing injury to the complainant, his girlfriend, and criminal possession of a weapon in the second degree for possessing a loaded pistol, which was recovered pursuant to the execution of a search warrant at the defendant's apartment. The complainant did not testify at trial. After the trial, the jury found the defendant guilty of assault in the third degree, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree.

The defendant contends that the 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. Contrary to the People's contention, this claim is adequately preserved for appellate review (see CPL 470.05[2]; People v Leach, 137 A.D.3d 1300, 1300).

"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" (People v Johnson, 1 N.Y.3d 302, 306; see People v Edwards, 47 N.Y.2d 493, 496-497). "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" (People v Cantave, 21 N.Y.3d 374, 381 [internal quotation marks omitted]). "[T]he time for reflection is not measured in minutes or seconds, but rather is measured by facts" (People v Vasquez, 88 N.Y.2d 561, 579 [internal quotation marks omitted]; see People v Johnson, 1 N.Y.3d at 306). The proponent of the hearsay evidence bears the burden of establishing its admissibility under the excited utterance exception (see People v Cantave, 21 N.Y.3d at 381).

Here in light of the amount of time that elapsed between the incident and the statements (see People v Leach, 137 A.D.3d at 1300-1301; People v Firu, 69 Misc.3d 1, 6 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]), and the lack of evidence as to what transpired in the interim (see People v Morris, 189 A.D.3d 1077, 1079-1080), 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 (see People v Johnson,...