Opinion
333 KA 13-02198.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Tyrel RIVERS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: On appeal from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ), and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that the verdict is contrary to the weight of the evidence. Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that, although an acquittal would not have been unreasonable, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). It is well settled that “[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ), and we perceive no reason to disturb the jury's resolution of those issues in this case.
We agree with defendant, however, that County Court abused its discretion in reading back the prosecutor's summation without also reading back the defense summation. Initially, we reject the People's contention that defendant failed to preserve his contention for our review. Defendant at least arguably objected to the readback, seeking more time to research the issue, and the court denied the objection. The court then granted the jury's request for the readback and denied defense counsel's request for a contemporaneous readback of the defense summation. Therefore, the court “ ‘expressly decided the question raised on appeal,’ thus preserving the issue for review” (People v. Smith, 22 N.Y.3d 462, 465, 982 N.Y.S.2d 809, 5 N.E.3d 972, quoting CPL 470.05[2] ).
Pursuant to CPL 310.30, “the jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations, and the trial court must ‘give such requested information or instruction as [it] deems proper’ ” (People v. Velasco, 77 N.Y.2d 469, 474, 568 N.Y.S.2d 721, 570 N.E.2d 1070 ). We agree with defendant that the court abused its discretion in reading back only the prosecutor's summation under the circumstances presented here. The evidence of defendant's guilt is not overwhelming, and the jurors were clearly divided at times during their deliberations, as demonstrated by their frequent requests for guidance from the court through numerous notes. Indeed, in their seventh note, the note at issue here, they requested a readback of the prosecutor's summation and, in their 11th note, they indicated that they were deadlocked on one of the counts. Under such circumstances, “[b]y rereading only the prosecutor's summation, the court permitted the People an additional opportunity to present their arguments, and their view of the evidence, creating the potential for distracting the jurors from their own recollection of the facts and from the arguments of defense counsel” (People v. Sullivan, 160 A.D.2d 161, 163, 559 N.Y.S.2d 881, lv. denied 76 N.Y.2d 991, 563 N.Y.S.2d 780, 565 N.E.2d 529, reconsideration denied 77 N.Y.2d 911, 569 N.Y.S.2d 943, 572 N.E.2d 626 ). We further conclude that such error is not harmless under these circumstances (see id. at 163–164, 559 N.Y.S.2d 881 ; see also United States v. Arboleda, 20 F.3d 58, 61–62 [2d Cir] ). We therefore reverse the judgment and grant a new trial.
Defendant further contends that the court erred in sustaining, on hearsay grounds, the prosecutor's objections to defendant's attempts to introduce into evidence the recordings of certain 911 calls. Inasmuch as we are granting a new trial, we need not address that contention. Nonetheless, in the interest of judicial economy, we note that those recordings were admissible as excited utterance and/or present sense impression exceptions to the hearsay rule. An excited utterance is “ ‘the product of the declarant's exposure to a startling or upsetting event that is sufficiently powerful to render the observer's normal reflective processes inoperative[,]’ preventing the opportunity for deliberation and fabrication” (People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084 ; see generally People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 ). “ ‘Present sense impression’ declarations, in contrast, are descriptions of events made by a person who is perceiving the event as it is unfolding[,] ... minimiz[ing] the opportunity for [a] calculated misstatement as well as the risk of inaccuracy from faulty memory” (People v. Vasquez, 88 N.Y.2d 561, 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328 ). Here, many of the recordings at issue were admissible under the excited utterance exception to the hearsay rule because the evidence established that the statements were made while the callers were “ under the stress of excitement caused by” the startling or upsetting events that they described (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 ; see People v. Miller, 115 A.D.3d 1302, 1303, 982 N.Y.S.2d 656, lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 ). In addition, some of those calls, and the remaining calls, were made by people who described events that were occurring, and the description of the events given by the prosecution witnesses provided the “ additional indicia of reliability” that rendered them admissible under the present sense impression exception (People v. Brown, 80 N.Y.2d 729, 736, 594 N.Y.S.2d 696, 610 N.E.2d 369 ; see People v. Ross, 112 A.D.3d 972, 973, 977 N.Y.S.2d 93, lv. denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 ; cf. People v. Mulligan, 118 A.D.3d 1372, 1373, 988 N.Y.S.2d 354, lv. denied 25 N.Y.3d 1075, 12 N.Y.S.3d 626, 34 N.E.3d 377 ).
Defendant's remaining contentions are moot in light of our determination.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.