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Supreme Court, Queens County, New York.

The PEOPLE of the State of New York, Plaintiff, v. Nichael ALLEN, Defendant.

No.: 505/2017

Decided: April 25, 2019

Joseph Murray, Esq. and Robert Fantone, Esq. for the defendant. Richard A. Brown, District Attorney of Queens County (Brianne Richards, Esq., of counsel), for the People.

The People move, pursuant to People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901), to introduce, at defendant's weapon possession trial, testimony concerning an uncharged robbery that defendant allegedly perpetrated minutes before the police arrested him and found a .9mm pistol in his truck. The People seek to do this, however, not by calling the victim of the alleged robbery to testify. Instead, they seek to call a police officer with whom the alleged victim spoke — after defendant had been arrested — so the officer can relate to the jury the information the alleged victim provided to him, unprompted and without any police questioning. The People's motion raises important questions about the interplay between the excited utterance exception to the hearsay rule — which is often used as a basis for admitting out-of-court statements like those at issue here — and the Sixth Amendment's Confrontation Clause, which prohibits the admission of "testimonial" statements when the declarant is not a witness at trial and the defense has not previously had the opportunity to cross-examine him. Because the Court concludes, after conducting a hearing, that the proffered statements are, in fact, testimonial, the People's application to introduce them as Molineux evidence is denied.1


During the early morning hours of January 4, 2017, outside a strip club in Astoria, Queens, defendant allegedly robbed two men at gunpoint. According to the People, Gregory Forbes and Elquinn Warner were in their car (a white Audi), about to drive away, when a man in a ski mask pointed a gun at the driver's side window and said, “Give me all your shit.” Forbes reportedly handed over about $ 1,000 in cash and a gold chain with a Jesus pendent. Defendant then walked away and got into a gray Chevy Avalanche. Forbes and Warner made a hurried U-turn and went the wrong way down the one-way street; defendant drove in the opposite direction. As the two cars passed each other, defendant pointed the gun out his passenger-side window at Forbes and Warner's Audi.

Meanwhile, three anti-crime officers in an unmarked police car — Lucas McDonald 2 , James Nostramo, and Officer Zaleski — were approaching the club. They saw a man in a Chevy Avalanche point a gun at another vehicle. The officers followed the Avalanche and tried to pull it over, but the driver refused to stop and a high-speed chase ensued. At an intersection in Astoria, Forbes and Warner — who had apparently joined the chase — pulled up next to the officers and frantically pointed at the Avalanche.

The pursuit ultimately ended in front of the 114th Precinct station house, where traffic forced the Avalanche to stop. Officers Nostramo and Zaleski removed defendant from the truck, handcuffed him and then frisked him. He did not have a gun on his person, and there were no other individuals in the truck. At this point, according to Officer McDonald, the threat defendant had posed was “neutralized.”

Forbes and Warner arrived outside the station house shortly after defendant's apprehension, and about five minutes after the officers allegedly saw defendant point a gun out the window of his truck. Forbes approached defendant, who was handcuffed and flanked by Nostramo and Zaleksi. Forbes was “hyped up” and said, in a loud voice, “That's the motherfucker right there; he fucking robbed me. He put a fucking gun to my head.” Officer McDonald told Forbes to calm down — that everything would be sorted out shortly — and he kept him separated from defendant, because it seemed possible that Forbes might try to punch him. Forbes responded: “Nah, fuck that. That's him. He fucking put a gun to my head and ․took my shit.” Notwithstanding Forbes's obvious hostility, he seemed, according to McDonald, “happy” and “excited” that defendant had been caught.

Officers Nostramo and Zabreski brought defendant inside the station house. Forbes, who was still outside with McDonald, provided some additional details about the alleged robbery. He said that defendant had taken his “Jesus chain” and his money. “I had a bunch of money. He stole it from me,” Forbes added. When McDonald spoke with the other officers shortly thereafter, he learned that they had recovered crumpled-up cash  3 and a gold chain from defendant's pants pockets. During a subsequent search of defendant's car, which had been moved to the precinct parking lot, the police recovered a loaded .9mm handgun and two fully loaded ammunition magazines.

McDonald ultimately brought Forbes inside the station house, where the officers “sat down and ․talked to him” and obtained more information about the alleged robbery.

In a felony complaint, defendant was charged with, among other offenses, first-degree robbery, first-degree reckless endangerment, and second-degree menacing, as well as criminal possession of a weapon in the second- and third-degrees. Before the Grand Jury, however, the People abandoned the robbery charge, apparently because Forbes had stopped cooperating. Consequently, the top charges in the indictment were the weapon possession offenses (Penal Law §§ 265.03 [1] [b], [3], 265.02 [1] ).

Defendant proceeded to trial in the spring of 2018, before another Judge of this Court. However, a mistrial was declared after the jurors were unable to reach a unanimous decision.

With defendant's retrial imminent, the People now move to introduce, on their direct case, the statements Forbes made to Officer McDonald, in front of the 114th Precinct, accusing defendant of robbing him at gun-point and taking his money and chain, as well as a photograph of the chain that the police recovered. This uncharged-crimes evidence, the People assert, is admissible for a number of non-propensity purposes (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901] ), including to establish defendant's possession of the .9mm and his intent to use it unlawfully on the morning of his arrest.

Acknowledging, correctly, that Molineux evidence must be presented in admissible form, the People argue that Forbes's statements constitute excited utterances and thus are not inadmissible hearsay. And they contend that, for many of the same reasons that the statements qualify as excited utterances, they are not testimonial and therefore are not barred by the Confrontation Clause. Defendant opposes the People's motion for several reasons. But, of particular relevance to the Court's resolution of the application, he argues that Forbes's statements — which were made after defendant was arrested, handcuffed, and frisked — are testimonial and thus inadmissible because the defense has never had the opportunity to cross-examine Forbes.


The Molineux rule is “familiar” (People v. Cass, 18 N.Y.3d 553, 559, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ). It holds that “evidence of a defendant's uncharged crimes or prior misconduct is not admissible if it ․tends only to demonstrate the defendant's propensity to commit the crime[s] charged” (id.) Molineux, however, does not prohibit the introduction of uncharged-crimes and other bad-acts evidence for non-propensity purposes. “[T]he People may use such evidence to prove motive, intent, lack of mistake or accident, identity, or common scheme or plan,” as long as the probative value of the evidence is not outweighed by its potential to unfairly prejudice the defense (People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ). Of course, Molineux evidence that meets this standard “must still be [presented] in admissible form” (People v. Brooks, 31 N.Y.3d 939, 942, 73 N.Y.S.3d 110, 96 N.E.3d 206 [2018] [internal quotation marks omitted] ). Here, the People seek to introduce evidence of the unindicted robbery for several non-propensity reasons. But the manner in which they seek to do this — through the introduction of testimonial hearsay — would violate defendant's rights under the Confrontation Clause.4 The People's motion, therefore, must be denied.

“As the accused in a criminal prosecution, [the] defendant has the right to be confronted with the witnesses who bear testimony against him” (People v. John, 27 N.Y.3d 294, 303, 33 N.Y.S.3d 88, 52 N.E.3d 1114 [2016] [internal quotation marks omitted] ). In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court rejected the view, which it had embraced in some prior cases, that confrontation can be dispensed with if an out-of-court statement “falls within a firmly rooted hearsay exception or bears particular guarantees of trustworthiness” (id. at 42, 124 S.Ct. 1354 [internal quotation marks omitted] ). What the Sixth Amendment requires, the Court explained, is “not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination” (id. at 61, 124 S.Ct. 1354).

Not all hearsay statements, however, pose a Confrontation Clause problem. The Clause's “primary object” is “testimonial” statements (id. at 53, 124 S.Ct. 1354).5 In Crawford, the Supreme Court "set forth various formulations of the core class of testimonial statements, ․but found it unnecessary to endorse any of them," because the statements at issue in that case — which were made during a police interrogation, after the declarant had been advised of her Miranda rights — qualified as testimonial under any conceivable definition of the concept (Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006] [alteration, internal citation, and quotation marks omitted] ). In subsequent cases, however, the Court would be required to more precisely define the contours of what constitutes a testimonial statement.

For example, Davis — which resolved two appeals of state court convictions, one from Washington and the other from Indiana — “require[d] [the Court] to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are ‘testimonial’ ” (Davis, 547 U.S. at 817, 126 S.Ct. 2266). Davis v. Washington centered on a 911 call made in the midst of a domestic assault. The caller, Michelle McCottry, told the 911 operator — in the present tense — that her former boyfriend (Adrian Davis) was “here jumpin' on me again” and “usin' his fists.” While McCottry was still on the phone, Davis ran out of the house, got into a car with someone else, and drove off. The police arrived within minutes and saw “fresh injuries” to McCottry's face and arm. McCottry did not testify at Davis's trial on charges of violating a domestic no-contact order, but the officers who responded to her house did. The prosecution also played the portion of McCottry's 911 call in which she accused Davis of assaulting her (id. at 817—19, 126 S.Ct. 2266).

The Indiana case (Hammon v. Indiana ) presented a different scenario. When the police responded to a report of a domestic disturbance at the home of Hershel and Amy Hammon, they encountered Amy on the front porch, by herself. To the officers, Amy appeared frightened, but she told them nothing was wrong. The officers went inside the house, where they saw a broken heater on the floor. Hershel was in the kitchen, and he said that he and Amy had had an argument, but it was over and it had not been physical. The officers separated Amy and Hershel; one of them remained with Hershel in the kitchen, while the other spoke with Amy in the living room. Ultimately, she provided the officer with an account of what had happened, first orally and then in writing, in a “battery affidavit.” She said, essentially, that following an argument about their daughter going to her boyfriend's house, Hershel broke some things in the house, including a glass piece of the heater. He then pushed Amy onto the floor and into the broken glass, before punching her in the chest (id. at 819—20, 126 S.Ct. 2266). At Hershel's trial on domestic battery charges, Amy disobeyed a subpoena and refused to appear. But the trial court permitted the prosecution to introduce Amy's oral statements to the officers as excited utterances (id. at 820—21, 126 S.Ct. 2266).6

In deciding that Michelle McCottry's statements were not testimonial but that Amy Hammon's were, the Court drew a distinction between statements whose “primary purpose ․is to enable police assistance to meet an ongoing emergency,” with those that are made when no exigency exists, and that, viewed objectively, are made with the primary purpose of “establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution” (id. at 822, 126 S.Ct. 2266). As our Court of Appeals would later explain, this “ ‘primary purpose’ test,” as it has since come to be known, “reflects the important distinction between a statement (generated though police interrogation or otherwise) that ‘accuses’ a perpetrator of a crime ․versus one that serves some other nontestimonial purpose” (People v. Rawlins, 10 N.Y.3d 136, 148, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008] [internal citation omitted] ).

McCottry's initial statements to the 911 operator belonged to the latter, non-accusatory category. She “was speaking about events as they were actually happening.” And not only that, she was facing a “bona fide physical threat.” The purpose of the call, then, was not to provide information about a crime that had already concluded, but to summon help for a present emergency (Davis, 547 U.S. at 827, 126 S.Ct. 2266 [emphasis in original] ). The Court cautioned, though, that a nontestimonial call for help made during an emergency can “evolve” into a testimonial situation. In McCottry's case, this transition likely occurred once Davis left the house and drove away, and the 911 operator proceeded to ask McCottry “a battery of questions” (id. at 829—30, 126 S.Ct. 2266).

In contrast, all of the statements at issue in Hammon were testimonial, the Court concluded. When the officers arrived at the Hammons' home, “[t]here was no emergency in progress,” and, therefore, “the primary, if not indeed the sole, purpose of the [police questioning] was to investigate a possible crime” — not to determine what was happening, in other words, “but rather ‘what happened’ ” (id. at 829—30, 126 S.Ct. 2266). The Court acknowledged that the circumstances were not particularly formal. After all, Amy's statements were made at her home, as opposed to being made at a police station or before a Grand Jury. But the setting was “formal enough” — Amy was questioned “in a separate room, away from her husband,” “some time after the events [she] described were over,” “with the officer receiving her replies for use in his ‘investigat[ion].’ ” In short, she was doing “precisely what a witness does on direct examination,” and her statements, accordingly, were testimonial (id. at 830, 126 S.Ct. 2266 [emphasis omitted] ).

The statements at issue here fall somewhere in between those in Davis and those in Hammon, but, in the Court's view, they land firmly on the testimonial side of the divide. In reaching this conclusion, it is important initially to recognize that, contrary to the People's contention, the unprompted nature of Forbes's statements does not, by itself, render them nontestimonial. To be sure, the “[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse” (Crawford, 541 U.S. at 56, n.7, 124 S.Ct. 1354). Still, “[t]he Framers were no more willing to exempt from cross-examination volunteered testimony ․than they were to exempt answers to detailed interrogation” (Davis, 547 U.S. at 822 n.1, 126 S.Ct. 2266; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 316, 129 S.Ct. 2527, 174 L.Ed.2d 314 [2009] [“we are aware of (no authority), holding that a person who volunteers his testimony is any less a witness against the defendant ․than one who is responding to interrogation” (internal citation and quotation marks omitted) ]; Rawlins, 10 N.Y.3d at 148, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [“a statement (generated though police interrogation or otherwise ) that ‘accuses’ a perpetrator of a crime” is testimonial (emphasis supplied) ] ).

This only makes sense, of course. An allegation voluntarily given to the police or other law enforcement agency can be just as damaging to the accused as a statement made during a formal interrogation or deposition, and certainly is no more inherently trustworthy. It is not uncommon, for instance, for a person who finds himself or herself under arrest or indictment to offer up information to the police or the prosecutor regarding other crimes about which he or she supposedly has knowledge. Criminal defendants do this (obviously) because they hope to receive a benefit in the form of dismissed charges or a reduced sentence. It is only through cross-examination, though, that the defense can ensure that the jury understands that information provided to law enforcement on such terms should be evaluated with a healthy dose of skepticism (cf. United States v. Cromer, 389 F.3d 662, 675 [6th Cir 2004] [“(o)ne can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation”] ).

Crawford itself made clear that statements can be testimonial even when they are not the result of formal police questioning. In describing “the principal evil at which the Confrontation Clause was directed” — that is, “the civil law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused” — Crawford memorably discussed the infamous treason trial of Sir Walter Raleigh (Crawford, 541 U.S. at 50, 124 S.Ct. 1354). Raleigh's trial relied heavily on testimonial hearsay, including, notably, a letter written by Lord Cobham, Raleigh's alleged accomplice, that was read to the jury (id. at 44, 124 S.Ct. 1354). And that letter, as Justice Scalia pointed out in Davis, “was plainly not the result of sustained questioning” (Davis, 547 U.S. at 822 n.1, 126 S.Ct. 2266 [emphasis in original] ).

To cite a more contemporary example, in Wright v. Burt, 665 Fed Appx. 403 (6th Cir. 2016), the Sixth Circuit Court of Appeals held that there was a Confrontation Clause violation where the prosecution introduced statements that a murder victim made, about a month before his death, to a police officer that he “flagged down.” The victim told the officer that Wright and two other men were threatening him in connection with a dispute over drug territory (id. at 405, 408). The court acknowledged that the officer “did not interrogate [the victim]; rather, [the victim] provided the information voluntarily.” Nevertheless, it easily concluded that the victim's statements were testimonial and that admitting them was “obvious” Sixth Amendment error (id. at 408). Clearly, then, the fact that Forbes sought out the police and volunteered information to them does not place his statements beyond the Confrontation Clause's reach.

This case effectively illustrates why volunteered statements should not be immunized from “the crucible of cross-examination” (Crawford, 541 U.S. at 61, 124 S.Ct. 1354). It is true that Forbes's statements to Officer McDonald were made not long after a startling event — a gunpoint robbery — allegedly occurred, a circumstance that is generally thought to diminish the likelihood of contrivance or fabrication (see People v. Caviness, 38 N.Y.2d 227, 230—31, 379 N.Y.S.2d 695, 342 N.E.2d 496 [1975] ). But, still, there are a number of issues that could potentially bear on Forbes's reliability that seem to have been left unexplored during his early morning exchange with the police. For example, Forbes was apparently at a club until around 4:30 a.m., so he may well have been drinking or otherwise intoxicated. But McDonald offered no insight into this issue at the hearing. Nor do we know: if Forbes had any interactions with defendant inside the club; why he was supposedly carrying so much cash on the morning of the alleged robbery (though perhaps not as much money as reported to the police [see note 3, supra ] ); why he was reluctant to cooperate with the police; or how he was able to confidently identify defendant on the street when the perpetrator was allegedly wearing a mask during the robbery. Questions like these would surely be fodder for cross-examination if Forbes testified at trial. But, if his allegations were introduced through Officer McDonald, the defense would be severely limited in what it could do to challenge their reliability.

The conclusion that Forbes's volunteered allegations are not outside the scope of the Confrontation Clause does not end the primary purpose inquiry, though. To resolve the ultimate issue of whether Forbes's statements were testimonial requires an objective analysis of “the circumstances of [the] encounter and the statements and actions of the parties to it” (Michigan v. Bryant, 562 U.S. 344, 360, 131 S.Ct. 1143, 179 L.Ed.2d 93 [2011]; see also Rawlins, 10 N.Y.3d at 147, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [determining whether a statement is testimonial “requires a fact-intensive inquiry (into) the circumstances of each case”] ). In this regard, it is particularly significant that, by the time Forbes arrived at the 114th Precinct and accused defendant of robbing him at gunpoint, defendant was in handcuffs, surrounded by police officers, and, indeed, in front of a police station. Thus, it would have been obvious to Forbes, even in his agitated state, that defendant was under arrest and the emergency he allegedly created by speeding through the streets of Astoria, armed with a gun, was over. At the hearing, Officer McDonald acknowledged this was true, when he indicated that, before Forbes's arrival at the station house, any threat defendant had posed had been “neutralized” 7 (compare Bryant, 562 U.S. at 374, 131 S.Ct. 1143 [an ongoing emergency existed where an armed shooter, whose motive was unknown, was at large] ). Presumably, this explains why Forbes felt comfortable enough to aggressively approach defendant — so aggressively, in fact, that Officer McDonald thought Forbes might hit defendant — to accuse him of the robbery.

The information that Forbes conveyed at that point, then, was not communicated to the officers so that they could address an ongoing exigency, but rather to make them aware of a crime defendant had committed a short time earlier. His statements, accordingly, were testimonial (see Bryant, 562 U.S. at 365, 131 S.Ct. 1143 [statements are likely testimonial when “[the] perpetrator is disarmed, surrenders, (or) is apprehended”] ), inasmuch as they “were made under circumstances which would lead an objective witness reasonably to believe that [they] would be available for use at a later trial” (John, 27 N.Y.3d at 303, 33 N.Y.S.3d 88, 52 N.E.3d 1114; see also United States v. Smalls, 605 F.3d 765, 778 [10th Cir. 2010] [a statement “is testimonial if a reasonable person in the position of the declarant would objectively foresee that the primary purpose of the statement was for use in the investigation or prosecution of a crime”] ). What would have been apparent to any objective observer of Forbes's exchange with McDonald was that Forbes wanted the officers' help getting his money and chain back — and he wanted the person who robbed him held accountable. And that, as Forbes must have appreciated, would require setting in motion the wheels of the criminal justice system.

The events that immediately preceded the statements reinforce this conclusion. If Forbes's motives were merely to make the police aware of a man with a gun in a Chevy Avalanche — as opposed to accusing that man of a robbery, and, then, hopefully, recovering his stolen property — he surely would have called 911 instead of joining in the police pursuit. And, in fact, had Forbes called 911 and reported what had just happened to him and Warner, as soon as defendant sped off, his statements likely would have been nontestimonial.8 That, however, is not what happened here.

Finally, the substance of Forbes's statements demonstrates his testimonial intent. Tellingly, the first words out of Forbes's mouth were not that defendant had a gun, or anything else that reflected a concern for the safety of the officers and anyone else who happened to be out on the street that morning. Instead, he said: “That's the motherfucker right there; he fucking robbed me.” When McDonald told defendant to calm down, he said, “Nah, fuck that. That's him. He fucking put a gun to my head and ․took my shit.” Once Officers Nostramo and Zabreski brought defendant inside the station house, Forbes elaborated that defendant had stolen his “Jesus chain” and “a bunch of money.” Viewed objectively, the purpose of these statements is only susceptible to one interpretation: that Forbes was providing the police with information about a past event, with the understanding that it would likely be used in a criminal investigation that was already in its beginning stages. Defendant was, after all, in handcuffs even before Forbes arrived. Forbes, therefore, was acting as a “witness” for Confrontation Clause purposes, albeit one whose “testimony” was liberally laced with profanity (cf. Davis, 547 U.S. at 831, 126 S.Ct. 2266 [Michelle McCottry's statements not testimonial because she “was seeking aid, not telling a story about the past”] ).

That the circumstances in which Forbes's statements were made lacked the formality and structure of, for example, a sit-down interview inside a station house, does not undermine this conclusion. “[I]nformality does not necessarily indicate ․the lack of testimonial intent” (Bryant, 562 U.S. at 366, 131 S.Ct. 1143). In Davis, the Supreme Court acknowledged that the discussion between Amy Hammon and the police did not take place in a particularly formal setting, but it still found that her statements were testimonial. What was central to that determination was that, just as in this case, the officers were not addressing an ongoing emergency and were, instead, asking Hammon to recount past events for use in their investigation (see page ––––, ––– N.Y.S.3d at ––––, supra ).

There are, moreover, factors in this case that were not present in Hammon, that instill in the exchange between Forbes and McDonald the requisite level of solemnity and seriousness. Notably, Forbes accused defendant of a very significant crime — a gunpoint robbery — to his face, while he was in handcuffs and in the process of being ushered inside a police station house. This was, then, not the sort of “casual remark to an acquaintance” that is beyond the scope of the Confrontation Clause (Crawford, 541 U.S. at 51, 124 S.Ct. 1354). It was, quite to the contrary, a weighty allegation leveled in a setting in which it was likely to be immediately acted upon. Thus, despite Forbes's crass language and anger, the early morning hour, and the sidewalk location, the circumstances were “formal enough” (Davis, 547 U.S. at 830, 126 S.Ct. 2266) for Confrontation Clause purposes.

On the issue of formality, one final point is worth making. Forbes, as noted, made additional, more detailed statements to the police inside the station house. The People have not sought to introduce those statements, most likely because they know that those allegations cannot be fairly characterized as excited utterances and they are also unquestionably testimonial. To reach a different conclusion for statements that Forbes made just a short time earlier, just outside of the station house — but which contained all of the essential details of the alleged robbery — because they were, to some degree, less formal would be “a recipe for [the Confrontation Clause's] extinction” (id. at 830, n.5, 126 S.Ct. 2266; see also Cromer, 389 F.3d at 675 [if the confrontation right is limited only to statements made in the most formal of circumstances, “then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally”] ).

Nor does Forbes's obvious excitement negate a finding that his statements were testimonial. The Court has little doubt that the statements at issue would qualify as excited utterances (see People v. Cummings, 31 N.Y.3d 204, 209, 75 N.Y.S.3d 484, 99 N.E.3d 877 [2018] ). But, as already explained, “the scope of the exemption from confrontation and that of the hearsay exceptions ․are not always coextensive” (Bryant, 562 U.S. at 392, 131 S.Ct. 1143 [Scalia, J., dissenting] ). And, “just because a declarant is excited does not mean that the statement was not testimonial in nature” (Richard D. Friedman, Grappling with the Meaning of “Testimonial”, 71 Brook. L. Rev. 241, 270—71 [2005]; cf. People v. Nieves-Andino, 30 A.D.3d 1137, 1138, 815 N.Y.S.2d 577 [1st Dept. 2006] [acknowledging that, depending on the circumstances, an “excited utterance” can be testimonial], aff'd 9 N.Y.3d 12, 840 N.Y.S.2d 882, 872 N.E.2d 1188 [2007] ).9 Presumably, Amy Hammon was distraught when the police showed up at her home not long after her husband had pushed her into a pile of broken glass and punched her, but her statements were still testimonial. So too here. Forbes may have been “hyped up,” as Officer McDonald put it (though he did have the wherewithal to track defendant down at the 114th Precinct). Nevertheless, it must have been obvious to Forbes — or at least it would have been obvious to a reasonable person in his position — that his accusatory statements would be used to further the investigation of the man who was standing before him, in front of a police station, handcuffed and surrounded by officers.

None of the cases relied on by the People compel a different result. People v. Diaz, 21 A.D.3d 58, 798 N.Y.S.2d 21 (1st Dept. 2005), for example, was decided before Davis, and thus lacks that decision's guidance on when a crime-scene statement is testimonial. And the Diaz court erred, in this Court's view, by reasoning that, because the statement at issue “was volunteered, rather than the result of structured police questioning, there was no Crawford violation” (id. at 67, 798 N.Y.S.2d 21). As thoroughly explained above, the Supreme Court has repeatedly made clear that statements do not have to elicited by the police to be considered testimonial. Beyond that, as a factual matter, it does not seem completely accurate to describe the statement as “volunteered,” when, in actuality, it was made when two suspected perpetrators were brought by a police officer to the ambulance where the victim was being treated to conduct what was, in effect, a police-arranged show-up (see id. at 61—62, 798 N.Y.S.2d 21 [recounting that the victim said “That's them” when a police officer “brought (the defendant and a co-perpetrator) back to where (the victim) lay on an ambulance stretcher”] ).

The People' reliance on People v. Moreno-Grantini, 167 A.D.3d 471, 89 N.Y.S.3d 73 (1st Dept. 2018) and People v. Legere, 81 A.D.3d 746, 916 N.Y.S.2d 187 (2d Dept. 2011), is also misplaced. In Moreno-Grantini, unlike in this case, neither the “frantic” victim-declarant, who had been stabbed, nor the officer who questioned the victim, knew whether the perpetrator had been apprehended by other officers at the time of their discussion. Thus, it was reasonable to conclude that the primary purpose of the questioning was to understand what had occurred in order to “ensure the safety of other persons” (id. at 471—72, 89 N.Y.S.3d 73). Likewise, in People v. Legere, 81 A.D.3d 746, 916 N.Y.S.2d 187 (2d Dept. 2011), the 911 call of a detective who had been fatally shot, and other statements the detective made to a responding police officer, were made for the primary purpose of “obtain[ing] emergency aid for [the detective] and for [his mortally injured partner], and to prevent further harm by the perpetrator, who at that point was still at large and armed” (id. at 749—50, 916 N.Y.S.2d 187). Here, as emphasized, Forbes — who was not injured 10 and did not need medical assistance — knew defendant was not “at large” at the time he spoke with Officer McDonald, because defendant was right in front of him, detained by the police (and in handcuffs), and within steps of the station house.

In sum, the Court concludes that the statements proffered by the People are testimonial, and since the defense has never had the opportunity to cross-examine Gregory Forbes, they are inadmissible. Because of this conclusion, the Court need not decide whether evidence of the uncharged robbery would be admissible under Molineux.

Of course, it is possible for the defense to "open the door to the admission of testimony that would otherwise be inadmissible under the Confrontation Clause" (People v. Reid, 19 N.Y.3d 382, 384—85, 948 N.Y.S.2d 223, 971 N.E.2d 353 [2012] ), but how the defense might do that in this case is a determination best left to the trial judge.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to counsel for the defendant and to the District Attorney's Office.


1.   This decision expands on certain aspects of the Court's April 16, 2019, written decision and order denying the People's Molineux application.

2.   Officer McDonald testified credibly at a hearing the Court ordered in connection with the People's Molineux application.

3.   According to a police voucher, the police found $ 525 in defendant's pockets, considerably less than the $ 1,000 defendant was accused of stealing from Forbes in the felony complaint.

4.   Some Molineux cases permit the use of out-of-court statements concerning uncharged crimes, when the statements are not admitted for the truth of the matter asserted, but rather to explain why the police, who had knowledge of the statements, took a particular action (see, e.g., People v. Morris, 21 N.Y.3d 588, 976 N.Y.S.2d 682, 999 N.E.2d 160 [2013] ). Using out-of-court statements in this way does not present a Confrontation Clause problem (see Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] ). But it is decidedly not what the People are proposing to do in this case. This is so because the officers were not aware of Forbes's allegations until after they arrested defendant, so, obviously, the statements cannot be used to explain the officers' actions in pursuing and apprehending him. Moreover, the People are seeking to introduce Forbes's statements to prove, among other things, that defendant intended to use the gun recovered from his truck unlawfully. And to do that, the statements obviously have to be admitted for their truth.

5.   The term “testimonial” derives from the Confrontation Clause's language, which provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ․to be confronted with the witnesses against him.” Witnesses, the Court reasoned, “ ‘bear testimony’ ” (Crawford, 541 U.S. at 51, 124 S.Ct. 1354, quoting 2 N. Webster, An American Dictionary of the English Language [1828] ). And testimony is “typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact” (id. [internal quotation marks omitted] ).

6.   The trial court also permitted the State to introduce Amy's affidavit as a "present sense impression." The Indiana Supreme Court concluded that the affidavit was testimonial and thus wrongly admitted, but found the error harmless beyond a reasonable doubt (Davis, 547 U.S. at 821, 126 S.Ct. 2266).

7.   McDonald's testimony on this point at defendant's first trial was even more definitive. He stated: “We arrested [defendant]. Put him in handcuffs. We looked to make sure there was no one else in the car at that point. There is no danger to us or pedestrians on the street. He's handcuffed. There's no gun on his person so there's no danger to anyone on the street at that point.”

8.   The Court can only assume that Forbes did not call 911, since the People have not, in this motion, sought to introduce a 911 call; their Bill of Particulars never mentioned a 911 call; and, during the pre-trial suppression hearing, Officer Nostramo did not recount receiving a radio transmission of an armed robbery.

9.    See also Guide to NY Evid rule 8.17, Excited Utterance (rev May 2018) (recognizing that, “[i]n criminal actions, a statement admitted under this exception may be barred by the Confrontation Clause of the Federal and New York State Constitutions if it is found to be ‘testimonial’ ”).

10.    See Bryant, 562 U.S. at 364—65, 131 S.Ct. 1143 (“[t]he medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one”).

Joseph A. Zayas, J.

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