People v. Vargas

211 A.D.3d 1046

180 N.Y.S.3d 299

The PEOPLE, etc., respondent,

v.Nolberto Contreras VARGAS, appellant.

2017–13422

Ind. No. 19/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 28, 2022

December 28, 2022

Patricia Pazner, New York, NY (Anna Jouravleva of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Roni C. Piplani, and Joseph M. DiPietro of counsel), for respondent.

MARK C. DILLON, J.P., JOSEPH A. ZAYAS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered November 17, 2017, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant was charged with attempted murder in the second degree and assault in the first degree after allegedly stabbing his wife (hereinafter the victim) in the chest with a knife at their residence in the presence of their adult daughter (hereinafter the daughter). During the defendant's trial, the victim and the daughter did not testify, and the People did not call any eyewitnesses to the alleged stabbing. Instead, to prove the elements of the crimes charged, including the element of intent, the People relied upon, inter alia, several statements introduced, over the defendant's objection, pursuant to the excited utterance and present sense impression exceptions to the hearsay rule.

The evidence admitted at trial established that, after the stabbing incident, the victim left the residence and ran outside, where she informed a bystander that she had been stabbed by her husband. Another bystander, who was never identified and never testified at trial, called the 911 emergency number, reporting that he saw a female bleeding. When asked "Was she assaulted or did she fall?," the caller stated, "I think someone stab [sic] her," but the record established that he had not observed the incident. The victim and the daughter approached an ambulance that had been stopped by a bystander, and the victim was treated at the scene for a stab wound to her chest and a laceration on her chin. The victim and the daughter told the paramedics that the victim had been stabbed by her husband. According to police officers who responded to the scene, the defendant's son arrived, and, after speaking with the victim in the ambulance, approached the defendant, who was being detained outside the residence, and yelled "Why, why, why? Why did you stab my mom?" The son did not observe the incident, and he did not testify at trial.

The victim was taken to a hospital, and the defendant was placed under arrest and transported to a police station. The daughter returned to the family's home, and approximately 20 minutes to 40 minutes after the stabbing, Police Officer Ryan Costello entered the home and interviewed the daughter for approximately 5 to 10 minutes. Costello testified at trial that the daughter was "visibly upset," "crying," and "[s]haking." Costello, who spoke Spanish "conversationally," testified that he asked the daughter, in Spanish, to "indicate to [him] what happened" using "simple words," and to "please also use hand gestures and body gestures." In response, the daughter "made motions." She "[t]urned [Costello] around," "[p]ulled [him] in close," and then pointed to the knife and "made motions with her hand." Costello demonstrated those motions for the jury by making "a grabbing motion with his right hand as if he was holding a knife," and making two "thrusting motions down towards his chest area." In addition, according to Costello, the daughter recounted that she had been talking to the victim prior to the stabbing and that the defendant "had come over from the kitchen with the knife and grabbed them and started attacking [the victim]." The daughter told Costello that she and a friend "managed to grab the knife out of [the defendant's] hands," and that the defendant exited the residence.

Approximately 30 to 90 minutes after the stabbing, Police Officer Erica Kaifler arrived at the residence. Kaifler testified at trial that she asked the daughter "if she knew what happened," and, in reply, the daughter "said that her dad had stabbed her mom."

At the hospital, the victim told an emergency room physician that she had been stabbed by her husband. The physician observed a stab wound in the center of the victim's chest which fractured her sternum and another wound in the victim's neck just below her jaw. The victim underwent surgery and was discharged from the hospital the following day. During a psychiatric consultation conducted at the hospital, the victim reported that the stabbing occurred at the end of a party at her residence when she attempted to take a bottle of liquor away from the defendant, who had become intoxicated. According to the consultation report, the victim stated that the defendant "grabbed a knife and came towards" her, and that the victim "then fell on the floor and [the defendant] fell on her after[,] but she doesn't recall exact details to determine if he stabbed her accidentally due to the fall or on purpose."

At trial, prior to opening statements, the People moved in limine to introduce into evidence Costello's above-described testimony regarding the daughter's statements and visual demonstration, and the Supreme Court granted the People's motion over the defendant's objection. The defendant also objected to the admission of portions of the 911 call and the testimony relating to the son's question to the defendant at the scene of the defendant's arrest, as well as the daughter's additional statement to Kaifler. At the conclusion of the trial, the jury acquitted the defendant of attempted murder in the second degree, but found him guilty of assault in the first degree.

The defendant correctly contends that Costello's testimony regarding the daughter's detailed statements about, and re-enactment of, the circumstances surrounding the stabbing incident was testimonial hearsay and violated his constitutional right to confront witnesses against him, as the daughter did not testify at trial. The Confrontation Clause of the Sixth Amendment to the United States Constitution prohibits the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination" ( Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 ). The key inquiry is whether the out-of-court statement or record is testimonial or nontestimonial (see Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 ; Davis v. Washington, 547 U.S. 813, 823–824, 126 S.Ct. 2266, 165 L.Ed.2d 224 ). "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution" ( Davis v. Washington, 547 U.S. at 822, 126 S.Ct. 2266 ). To determine which of these categories an out-of-court statement falls into, a court should focus on "the purpose that the statement was intended to serve" ( People v. Rawlins, 10 N.Y.3d 136, 148, 855 N.Y.S.2d 20, 884 N.E.2d 1019 ), and to ascertain "the ‘primary purpose’ of an interrogation," a court should "objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties" ( Michigan v. Bryant, 562 U.S. at 359, 131 S.Ct. 1143 ).

Here, the daughter's statements to Costello regarding the circumstances under which the defendant had stabbed the victim were testimonial in nature. Viewing the record objectively, at the time the statements were made, there was no ongoing emergency. The victim had been removed from the scene and taken to a hospital. The defendant had been taken into custody and transported to a police station. Indeed, Costello testified that a detective was never even assigned to the case, precisely because the police already "had the alleged perpetrator in custody." Although the daughter was still deeply upset as a result of the stabbing, she was not in need of police assistance, and it is clear that Costello's questions were not asked for the purpose of facilitating such assistance. Rather, the primary purpose of Costello's questioning of the daughter "was to investigate a possible crime" ( Davis v. Washington, 547 U.S. at 830, 126 S.Ct. 2266 ). Costello "was not seeking to determine ... what is happening, but rather what happened" ( Davis v. Washington, 547 U.S. at 830, 126 S.Ct. 2266 [internal quotation marks omitted]). Indeed, Costello expressly asked the daughter to "indicate to [him] what happened." Moreover, Costello went beyond simply asking what happened and requested that the daughter describe and illustrate exactly how it happened using simple words and gestures. While the People argue that Costello requested the use of gestures merely to overcome a language barrier, the fact remains that he asked the daughter to convey information about past events. The daughter's detailed account of those events, complete with a physical re-enactment of the crime, did "precisely what a witness does on direct examination," and thus was "inherently testimonial" ( Davis v. Washington, 547 U.S. at 830, 126 S.Ct. 2266 ).

Accordingly, the police testimony recounting the daughter's out-of-court statements violated the defendant's Sixth Amendment right of confrontation.

Contrary to the People's contention, the constitutional error in admitting into evidence Costello's description of the daughter's statements and re-enactment of...