Tuesday, February 27, 2007

AD1: Decisions for February 22, 2007

Robbery victim's responses to police questioning after suspect has already fled qualifies as "excited utterance"; not testimonial

People v Smith, 2007 NY Slip Op 01467 [available here]

Police responded to a reported robbery and questioned the victim, who told them certain specifics about the robbery. The defendant challenged the victim's statement to the police as hearsay subject to no exception, and also argued on appeal that the statement was inadmissible testimonial hearsay under Crawford v Washington. The First Department did not bite on either argument. On the hearsay issue, the Court held the trial court "properly admitted as excited utterances the nontestifying victim's statements to the responding police officer . . . upon his arrival at the scene, describing the theft and informing the officer that the perpetrator had displayed a knife, as well as his statement, moments later, as to the perpetrator's flight." (Smith, 2007 NY Slip Op 01467.) Remember, this is the same Court that decided last week that the statement of a man who had just been shot in the gut was not an excited utterance. (previous post available here.)

As to the Crawford issue, the Court held that the statement was not testimonial in nature, but rather made to assist the police "'to meet an ongoing emergency' that had not abated. The ongoing emergency consisted of the immediate flight on an armed and dangerous person from the scene and his possible continuing presence nearby." (Id. at __, citing Davis v Washington, 126 S Ct 2266 [2006].)

Defense counsel's statement to court that client would perjure himself if he testified did not render assistance ineffective

People v Kolon, 2007 NY Slip Op 01472 [available here]

On appeal, defendant argued "that he was prejudiced when, in counsel's efforts to be relieved, counsel revealed to the ultimate fact-finder that his client would commit perjury if he testified, and that his client was eager to plead guilty to a lesser charge." (Kolon, 2007 NY Slip Op 01472.) Not ineffective assistance, said the First Department--defendant did not actually testify, and "the judge, in this nonjury trial, is presumed to have disregarded prejudicial matter." (Id. at __.)

Cop's testimony that he had met defendant several times, knew him by name, and knew where he lived properly admitted

People v Vega, 2007 NY Slip Op 01488 [available here]

In a drug case, the trial court allowed evidence that "the observing officer had met defendant on several undescribed prior occasions, knew him by name and had been to his apartment." (Vega, 2007 NY Slip Op 01488.) Despite the obvious prejudice of letting the jury know that the cops are on a first-name basis with the defendant, the Court held the trial court acted properly in admitting the evidence. "In addition to being highly probative of the officer's ability to identify defendant, an issue which defendant extensively pursued on cross-examination, this evidence also explained some of the unusual facts in this case." (Id. at __.)