IN RE: GERMAN F. and Hector R. (2006)

 In these juvenile delinquency proceedings in which the Presentment Agency alleges that the respondents, German F. and Hector R., committed acts which would constitute the crimes of Assault in the Third Degree and Attempted Assault in the Third Degree, the Court must determine whether the admission of the out of-court statement of the non-testifying victim violates respondents' rights under the Sixth Amendment of the United States Constitution and Article I, Section 6 of the New York State Constitution.

A fact-finding hearing was commenced before this Court on August 3, 2006 (see, Fam. Ct. Act § 301.2[6] ).   The Presentment Agency called New York City Police Officer William Gschlecht as a witness.^{1 2}  Officer Gschlecht testified that he was on uniformed foot patrol in the Corona neighborhood in Queens County in the early evening of February 14, 2006.   At approximately 7:15 P.M. Gschlecht was inside of a store on Roosevelt Avenue when he was approached by a civilian and advised that “someone was getting stabbed” nearby on the street.   Gschlecht left the store immediately and headed to the location of the incident, which was about 50 to 55 feet away from the store entrance.   When he arrived at the location with his partner, Gschlecht observed a crowd of people standing in a circle on the sidewalk and street and he was unable to see what, if anything was occurring inside.   He then pushed his way through the crowd and observed four males, two of whom were subsequently identified as the respondents, German Flores and Hector Rodriguez.   According to Officer Gschlecht, one of the males was grabbing the victim while the other two were standing nearby at an angle to the other male and they were all “screaming” at the victim.   Once Gschlecht made “eye contact” with these three individuals they “stopped what they were doing” and they left the circle and began to walk quickly and then “trotted” up National Street.   Officer Gschlecht gave chase after these three individuals and once he apprehended them they were placed “up against a wall”.   Gschlecht then placed a radio call to his partner to ascertain whether he was with the victim and sent another radio call for back-up officers since the crowd on the street seemed to be “hostile” and there was shouting in a language the officer did not understand.   Gschlecht headed back to the scene of the incident and the back-up officers arrived and they took custody of the three individuals.   Gschlecht then proceeded over to the victim who was prone on the sidewalk and he noticed a large amount of blood on the victim's pants and socks along with a large cut of two to three inches on the victim's lower leg.   Gschlecht then asked the victim “how did that happen?” and the victim then pointed at the three individuals who included the respondents and he stated “they stabbed me, they fucking stabbed me!'.”   Respondents and their accomplice were then arrested and the victim was transported to a hospital.

Respondents objected at trial when the Presentment Agency sought to introduce the statement of the alleged victim through the testimony of Officer Gschlecht, claiming that the statement constitutes hearsay and its admission would violate their rights to confrontation given that the alleged victim has not testified and does not appear to be available to be called as a witness by the Presentment Agency.   The Court reserved decision on respondents' evidentiary objection.

 Both the United States and New York State constitutions provide that an accused has the right to confront adverse witnesses in a criminal trial (U.S. Const., 6th Amend.;  N.Y. Constitution, article 1, § 6).³  While the state and federal constitutions establish the right to confront and to cross-examine adverse witnesses as core values of the criminal justice process (Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 [1965];  California v. Green, 399 U.S. 149, 157-158, 90 S.Ct. 1930, 26 L.Ed.2d 489 [1969];  Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 65 L.Ed.2d 597 [1980];  Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.Ct. 292, 88 L.Ed.2d 15 [1985];  Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 [1986];  Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 [1986];  Coy v. Iowa, 487 U.S. 1012, 1015, 108 S.Ct. 2798, 101 L.Ed.2d 857 [1988];  People v. Hults, 76 N.Y.2d 190, 199, 557 N.Y.S.2d 270, 556 N.E.2d 1077 [1990];  People v. Hardy, 4 N.Y.3d 192, 197, 791 N.Y.S.2d 513, 824 N.E.2d 953 [2005] ), both the Supreme Court and the Court of Appeals have repeatedly made clear that the right of confrontation is not absolute (Ohio v. Roberts, at 63-66, 100 S.Ct. 2531;  see, Maryland v. Craig, 497 U.S. 836, 844, 846, 110 S.Ct. 3157, 111 L.Ed.2d 666 [1990];  United States v. Inadi, 475 U.S. 387, 394, 106 S.Ct. 1121, 89 L.Ed.2d 390 [1986];  People v. Cintron, 75 N.Y.2d 249, 259, 552 N.Y.S.2d 68, 551 N.E.2d 561 [1990] ).   For example, prior to 2004, it had been generally accepted that the Confrontation Clause does not necessarily guarantee a defendant the right to actual face-to-face confrontation with all adverse witnesses nor does it guarantee the right to cross-examine the maker of every out-of-court statement where the statement of an unavailable witness “fell within a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness”, or the in-court testimony of a vulnerable child witness was dispensed with as a matter of public policy (see, Ohio v. Roberts, at 63-66, 100 S.Ct. 2531;  Maryland v. Craig, 497 U.S. 836, 844, 846, 110 S.Ct. 3157, 111 L.Ed.2d 666 [1990];  People v. Cintron, 75 N.Y.2d 249, 259, 552 N.Y.S.2d 68, 551 N.E.2d 561 [1990];  State v. Bobadilla, 709 N.W.2d 243, 248 [MN Sup. Ct. 2005];  State v. Blue, 717 N.W.2d 558, 561 [N.D. Sup. Ct. 2006];  United States v. Cromer, 389 F.3d 662, 671 [6th Cir.2005] ).

In 2004 the Supreme Court held in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004], that the Sixth Amendment prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination” (Id., at 53-54, 124 S.Ct. 1354;  see, Davis v. Washington, 547 U.S. ----, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 [2006] ).   The opinion in Crawford further stated that the admission of hearsay statements was not necessarily dependent on whether the testimony came within a recognized hearsay exception, a suggested by the holding in Ohio v. Roberts (Crawford, at 51-53, 124 S.Ct. 1354;  see also, California v. Green, at 155-156, 90 S.Ct. 1930 [the Confrontation Clause does not merely codify the rules of hearsay and their exceptions];  People v. Hardy, at 197, 791 N.Y.S.2d 513, 824 N.E.2d 953 [In Crawford the Court departed from its own former jurisprudence and rejected the test it established in Roberts ] ).   Instead, the Court held that only hearsay that is “non-testimonial” in nature can be admitted without violating a defendant's confrontation rights consistent with a literal reading of the Sixth Amendment.   As explained by Justice Scalia, the Sixth Amendment bars the admission of testimonial statements from a non-testifying declarant even where that statement would come within a recognized hearsay exception.  “[W]e do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability” (Crawford, at 61, 124 S.Ct. 1354).   With respect to the rule enunciated in Ohio v. Roberts, Justice Scalia stated that Roberts has “demonstrated [a] capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude” because “[t]he Roberts test allows a jury to hear evidence, untested by the adversary process, based upon a mere judicial determination of reliability” and the rule “thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one” (Id., at 62, 124 S.Ct. 1354;  see also, Maryland v. Craig, at 862, 110 S.Ct. 3157 (Scalia, J., dissenting) [the Confrontation Clause does not guarantee reliable evidence, it guarantees specific trial procedures which include face-to-face confrontation];  State v. Mechling, 633 S.E.2d 311, 317 [W.V. Sup. Ct. 2006] [Confrontation Clause is a rule of procedure not a rule of evidence] ).

While the Court left open the question of what types of hearsay qualify as admissible “nontestimonial hearsay” for future determination (Crawford, at 68, 124 S.Ct. 1354), New York courts adhered to Crawford and found that various types of hearsay were “testimonial” in nature and thus inadmissible where the declarant was unavailable at trial.   For example, references to the plea allocution of a non-testifying co-defendant at a subsequent trial were found to be testimonial and thus inadmissible hearsay under Crawford (People v. Hardy, at 198, 791 N.Y.S.2d 513, 824 N.E.2d 953;  People v. Douglas, 4 N.Y.3d 777, 778-779, 793 N.Y.S.2d 825, 826 N.E.2d 796 [2005];  People v. F & S Auto Parts, Inc., 24 A.D.3d 795, 796, 809 N.Y.S.2d 93 [2005];  People v. White, 24 A.D.3d 801, 802, 809 N.Y.S.2d 90 [2005] ), and eyewitness statements made to police officers in the course of interrogations a day after the crimes for which defendant was later indicted were also found to be testimonial and thus inadmissible under Crawford (People v. Davis, 23 A.D.3d 833, 835, 805 N.Y.S.2d 435 [2005], lv. denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282 [2005] ).

The Supreme Court has recently revisited the holding in Crawford and further explained its meaning in its decision in Davis v. Washington, 547 U.S. ----, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006].   In Davis a 911 emergency operator entertained an emergency 911 telephone call from the victim and was advised that the victim was involved in a domestic dispute with the defendant who had been beating her.   At defendant's trial the court admitted the recording of the non-testifying victim's conversation with the 911 operator and defendant appealed claiming violation of the Sixth Amendment.   The Supreme Court reiterated that the Confrontation Clause of the Sixth Amendment barred the admission of the testimonial statements of a non-testifying declarant unless the declarant was unavailable and defendant had a prior opportunity to cross-examine him or her (547 U.S., at ----, 126 S.Ct., at 2273).   The Court then proceeded to address the question expressly left unanswered by Crawford and further stated that a declarant is a witness within the meaning of the Confrontation Clause only where witness's out-of-court statement was “testimonial” (Id.).   The Court stated that “[s]tatements 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” (Id., at 2273-2274).   Thus, given the circumstances of the interrogation of the victim in Davis by the police 911 operator, the Court found that the statements were elicited to meet a present emergency and they were therefore non-testimonial and admissible under Crawford.

Applying the holdings of Crawford and Davis to the facts thus far elicited at the fact-finding hearing, and evaluating the context and circumstances in which the statements at issue were made (State v. Blue, at 563), it is clear that the victim's statement was made to Police Officer Gschlecht in response to the officer's questions.   However, Gschlecht's questions to the victim occurred on the street where the victim was lying prone on the sidewalk moments after the officer had observed the victim essentially surrounded by the respondents and two others and there was also a larger “hostile” crowd encircling the victim and the three apparent perpetrators.   Additionally, once Gschlecht observed blood on the victim's pants and socks as well as a large cut on the victim's lower leg, the officer's questions were clearly intended to deal with an ongoing emergency in a volatile atmosphere.   Therefore, the victim's statements made in response to the police officer's questions are “non-testimonial” under both Crawford and Davis because the purpose of the officer's interrogation was to enable him to assist the victim in an emergency situation rather than to “establish or prove past events potentially relevant to later criminal prosecution” (Davis, at 2273-2274;  see, People v. Newland, 6 A.D.3d 330, 331, 775 N.Y.S.2d 308 [2004], lv. denied 3 N.Y.3d 679, 784 N.Y.S.2d 17, 817 N.E.2d 835 [2004];  People v. Coleman, 16 A.D.3d 254, 255, 791 N.Y.S.2d 112 [2005], lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157 [2005];  People v. Royster, 18 A.D.3d 375, 376, 795 N.Y.S.2d 560 [2005], lv. denied 5 N.Y.3d 794, 801 N.Y.S.2d 814, 835 N.E.2d 674 [2005];  People v. Diaz, 21 A.D.3d 58, 67, 798 N.Y.S.2d 21 [2005], lv. granted 5 N.Y.3d 852, 806 N.Y.S.2d 172, 840 N.E.2d 141 [2005];  People v. Marino, 21 A.D.3d 430, 431, 800 N.Y.S.2d 439 [2005], lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484 [2005], cert. denied --- U.S. ----, 126 S.Ct. 2930, 165 L.Ed.2d 958 [2006];  People v. Bradley, 22 A.D.3d 33, 42-43, 799 N.Y.S.2d 472 [2005], lv. denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 [2006];  People v. Paul, 25 A.D.3d 165, 169-170, 803 N.Y.S.2d 66 [2005], lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 [2005];  People v. Bryant, 27 A.D.3d 1124, 1126, 815 N.Y.S.2d 372 [2006], lv. denied 7 N.Y.3d 753, 819 N.Y.S.2d 878, 853 N.E.2d 249 [2006];  People v. Nieves-Andino, 30 A.D.3d 1137, 815 N.Y.S.2d 577 [2006] ).

 Prior to the Crawford decision, the victim's statements to Officer Gschlecht's questions would more than likely have been routinely admitted under the excited utterance exception to the hearsay rule, without any analysis of whether the statements were “testimonial” in nature.⁴  While Crawford and Davis bar the admission of testimonial statements whether or not the statements come within a recognized hearsay exception, a statement that fits within a recognized exception to the hearsay rule is still admissible in the absence of the declarant so long as the statement is “non-testimonial”.   As explained by the Court, “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law” (Crawford, at 68, 124 S.Ct. 1354), and because “[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, it is not subject to the Confrontation Clause” (Davis, at 2273).   Thus, New York courts have continued to admit excited utterances into evidence subsequent to the decision in Crawford as an exception to the state's hearsay rule regardless of whether there is a showing that the victim is unavailable (see, Crawford at 60, 124 S.Ct. 1354;  Davis, at 2275, n. 4;  People v. Royster, at 376, 795 N.Y.S.2d 560;  People v. Marino, at 431, 800 N.Y.S.2d 439;  People v. Bradley, at 42-43, 799 N.Y.S.2d 472;  People v. Nieves-Andino, 30 A.D.3d, at 1137, 815 N.Y.S.2d, at 578), and there is no basis to depart from settled precedent in these proceedings.

Accordingly, respondents' objection to the admission of the victim's out-of-court statements to Officer Gschlecht on the grounds that it violates the rule set forth in Crawford and Davis is overruled.   The victim's statement is admissible as an excited utterance under New York law.

This constitutes the decision and opinion of the Court.

FOOTNOTES

1.   Edited for purposes of publication.

2.   Officer Gschlecht signed the supporting deposition appended to the verified petition.   There is no deposition from the alleged victim appended to the petition (see, Fam. Ct. Act § 311.2[2];  Matter of Jahron S., 79 N.Y.2d 632, 639, 584 N.Y.S.2d 748, 595 N.E.2d 823 [1992] ).

3.   The Sixth Amendment to the United States Constitution provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.”   Article I, § 6 of the New York Constitution provides, in pertinent part, that “[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and ․ be confronted with the witnesses against him or her.”

4.   An excited utterance is a statement made under the stress of an external event rather than the product of studied reflection (People v. Brown, 70 N.Y.2d 513, 519-520, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987];  People v. Norton, 79 N.Y.2d 808, 809, 580 N.Y.S.2d 174, 588 N.E.2d 72 [1991];  People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996];  White v. Illinois, 502 U.S. 346, 355-356, 112 S.Ct. 736, 116 L.Ed.2d 848 [1992] ).

JOHN M. HUNT, J.