Opinion
2012-2616 Q CR
02-17-2015
The People of the State of New York, Respondent, v. Melissa Scott, Appellant.
PRESENT: : , SOLOMON and ELLIOT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.H.O.), rendered October 5, 2012. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.
ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, and the accusatory instrument is dismissed.
Defendant and the complainant had been in a romantic relationship that ended in 2011, but attempted to remain friends. On May 10, 2012, they became involved in an altercation in the street. The complainant asserts that, during that altercation, defendant hit her on the left side of her face. After a nonjury trial, defendant was convicted of harassment in the second degree (Penal Law § 240.26 [1]).
In fulfilling our responsibility to conduct an independent review of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence.
However, the Criminal Court improvidently exercised its discretion in admitting into evidence, after the complainant had testified, a recording of the call the complainant had made to 911. The complainant did not make the call until she had returned home and a period of time had elapsed. The complainant, who alleged that defendant had slapped her in the face, did not inform the 911 operator that she was injured or experiencing pain. Furthermore, the content of the 911 recording indicates that the complainant alleged that defendant was chasing the complainant's mother, and that she did not know whether defendant had done anything to her mother. No such evidence was adduced at the trial, and defendant was not charged with any offense regarding the complainant's mother. Under the totality of the circumstances presented, we find that the complainant had the opportunity to reflect and possibly fabricate before she called 911, and, thus, the recording of the 911 call was inadmissible as an excited utterance (see People v Cantave, 21 NY3d 374, 381-382 [2013]; People v Johnson, 1 NY3d 302, 306 [2003]; People v Cotto, 92 NY2d 68, 79-80 [1998]; People v Vasquez, 88 NY2d 561, 574 [1996]; People v Gantt, 48 AD3d 59, 64 [2007]; People v Breland, 292 AD2d 460, 460-461 [2002]; People v Idlett, 275 AD2d 750 [2000]; People v Jimenez, 102 AD2d 439, 441-443 [1984]; People v Valentine, 40 Misc 3d 28, 30 [App Term, 2d, 11th & 13th Jud Dists 2013]; cf. People v Simpson, 238 AD2d 611 [1997]). Nor was the recording admissible pursuant to the state of mind exception to the hearsay rule ( see People v Reynoso, 73 NY2d 816, 819 [1988]; cf. People v Barr, 60 AD3d 864 [2009]; People v Boyd, 256 AD2d 350, 350-351 [1998]). Contrary to the People's contention, the error cannot be deemed harmless, as the proof of defendant's guilt was not overwhelming ( see People v Crombleholme, 8 AD3d 1068, 1070 [2004]; People v Boston, 296 AD2d 576, 578 [2002]; People v Breland, 292 AD2d at 461).
Since defendant committed a relatively minor offense, a violation, and has completed the sentence, we find that there would be little penological purpose in remitting the matter to the Criminal Court for a new trial. Consequently, as a matter of discretion in the interest of justice, we dismiss the accusatory instrument (see People v Bryant, 34 Misc 3d 136[A], 2011 NY Slip Op 52399[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
In light of our determination, we do not reach defendant's other contentions.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
Weston, J.P., Solomon and Elliot, JJ., concur.
Decision Date: February 17, 2015