N.Y. Panel Defines 911 Tapes as Admissible Evidence

[FaGal]

N.Y. Panel Defines 911 Tapes as Admissible Evidence

Tom Perrotta
New York Law Journal
03-25-2005


A Manhattan appeals court has handed a victory to prosecutors in the ongoing dispute over the meaning of a landmark U.S. Supreme Court ruling on the Confrontation Clause.

The Appellate Division, 1st Department, said that reports of criminal activity to 911 operators should almost never be viewed as testimonial statements, and therefore still could be admitted in court under hearsay exceptions even if the witness is not available for cross-examination.

In Crawford v. Washington, 124 S.Ct. 1353 (2004), the U.S. Supreme Court shifted the course of Sixth Amendment jurisprudence by placing limits on hearsay exceptions.

Last year's ruling, which overruled a 24-year-old precedent, said that testimonial statements made by a witness to a crime could not be admitted at trial unless the defendant had an opportunity to cross-examine the witness.

Though the Court gave some guidance on what makes a statement testimonial, it did not craft an exhaustive definition for the term. Courts have been grappling with the words' meaning ever since.

In People v. Coleman, 5655, a unanimous panel of the 1st Department took its first stab at an issue that has become the subject of discussion among New York trial judges: the nature of 911 telephone calls.

"Crawford repeatedly stresses the element of formality and reiterates that the Confrontation Clause was primarily directed at evidence bearing a resemblance to depositions and affidavits, even if unsworn," the 1st Department wrote in an unsigned opinion. "Given this emphasis, we find little support in Crawford for the argument that virtually any report of criminal activity, knowingly made to the authorities, should be viewed as testimonial."

In Coleman, Michael Coleman was convicted of attempted assault in the first degree and assault in the second degree. He was sentenced to concurrent terms of 4 and 2 years in prison.

At trial, jurors heard a tape of a 911 call, in which an unidentified caller described an attack against a man and a woman. The 911 operator requested a description of the assailant, "but otherwise only asked the caller to repeat information he had already volunteered," the court wrote.

On appeal, Coleman argued that the 911 tape was testimonial under Crawford and was admitted in violation of his right to cross-examine the witness.

The 1st Department disagreed, saying the tape satisfied the excited utterance and present sense impression exceptions to the hearsay rule.

The court also noted that the 911 operator did not follow any protocol, as in People v. Cortes, 4 Misc.3d 575 (2004), where a trial judge ruled that an unidentified statement to a 911 operator was testimonial.

"The caller repeatedly emphasized that one or both of the victims were bleeding 'real bad,'" the court wrote. "This indicates that his primary motivation was to call for urgent assistance, and not to phone in an anonymous accusation."

Justices Peter Tom, Richard T. Andrias, David B. Saxe, David Friedman and Eugene L. Nardelli concurred on the ruling.

Robert E. Carrigan of Hackensack, N.J., represented Coleman. Assistant District Attorney Richard Sullivan prosecuted the appeal.

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