Opinion
No. 2019-04439 Ind. No. 5554/17
03-01-2023
The People of the State of New York, respondent, v. Shamecca Gittens, appellant.
Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Julien Joiris of counsel), for respondent.
Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Julien Joiris of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P. ROBERT J. MILLER LINDA CHRISTOPHER JANICE A. TAYLOR, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered April 3, 2019, convicting her of attempted assault in the first degree, assault in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Following a jury trial, the defendant was convicted of attempted assault in the first degree, assault in the second degree, and assault in the third degree, in connection with the slashing of three women during a fight outside a fast food restaurant in Brooklyn.
The Supreme Court erred in admitting into evidence statements made during an anonymous 911 call under either the excited utterance or present sense impression exceptions to the prohibition against the admission of hearsay. "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" (People v Cummings, 31 N.Y.3d 204, 209 [internal quotation marks omitted]). "Although the statement of a nonparticipant to the event described may be admitted as an excited utterance, it must be inferable that [such] declarant had an opportunity to observe personally the event described in the [spontaneous] declaration" (People v Samuel, 208 A.D.3d 1261, 1262-1263 [internal quotation marks omitted]; see People v Thelismond, 180 A.D.3d 1076, 1078). Here, the People did not present sufficient facts from which it could be inferred that the caller had personally observed the incident, and thus, the caller's statements during the 911 call did not qualify under the excited utterance exception to the prohibition against the admission of hearsay (see People v Samuel, 208 A.D.3d at 1263; People v Thelismond, 180 A.D.3d at 1078). Further, the material statements made during the 911 call did not qualify under the present sense impression exception to the prohibition against the admission of hearsay, since the caller was not describing events that the caller personally perceived as the events were unfolding (see People v Samuel, 208 A.D.3d at 1263; People v Morris, 189 A.D.3d 1077, 1080).
Nevertheless, contrary to the defendant's contention, the admission of the recording of the 911 call did not violate the defendant's right of confrontation because the declarant's statements were not testimonial (see Crawford v Washington, 541 U.S. 36; People v Bradley, 8 N.Y.3d 124, 126). The information conveyed by the declarant during the 911 call was for the purpose of seeking medical and police intervention, and did not result from structured questioning (see People v Thomas, 187 A.D.3d 949, 950; People v Legere, 81 A.D.3d 746, 750). Further, the error in admitting the recording of the 911 call was harmless in light of the overwhelming evidence of the defendant's guilt without reference to the statements, and the absence of any significant probability that the error might have contributed to the defendant's convictions (see People v Crimmins, 36 N.Y.2d 230; People v Hardy, 208 A.D.3d 519, 519).
To the extent the defendant seeks a reduction in the periods of postrelease supervision so as to have them run concurrently with each other, we note that the periods of postrelease supervision will merge by operation of law (see Penal Law § 70.45[5][c]), and, thus, no modification is necessary with respect to the periods of postrelease supervision imposed (see People v Juin, 197 A.D.3d 571). The component of the sentence imposed relating to incarceration was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's contention that she was denied the effective assistance of counsel is without merit (see People v Roperto, 153 A.D.3d 556, 557; People v Bunting, 146 A.D.3d 794, 795).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.
CONNOLLY, J.P., MILLER, CHRISTOPHER and TAYLOR, JJ., concur.