Prosecuting a Domestic Assault Case without a Victim: The Excited Utterance Rule in New York

The common perception is that most of the work of a New York criminal attorney comes in zealously representing their clients at trial while trying to enter a reasonable doubt in the mind of a jury or a judge. While that is certainly a role played by criminal attorneys in New York, the truth is that many times experienced New York criminal lawyers raise challenges to a case at a much earlier stage. For instance, a criminal attorney may challenge the arrest itself as improper, or the sufficiency of the charges brought by the Assistant District Attorney. As most of you know, the police standard for making a proper arrest is probable cause. Furthermore, in New York an Assistant District Attorney (the prosecutor) must present non-hearsay factual allegations (e.g. a victim’s account, or a witness’ statement, or an arresting officers’ observations) that provide reasonable cause to believe that the defendant committed each element of the offense being charged. It is important to note that the level of proof required at a stage prior to trial (to properly charge a defendant) is much lower than the reasonable doubt standard required to convict a defendant.

I presented the above background because I want to examine a recent New York criminal case, People v. Jamel Harris, 2011QN011459, NYLJ 1202503770549 at *1 (Crim., QU, Decided July 13, 2011), in which the defendant challenged the sufficiency of the charges brought against him because he believed they were based on uncorroborated hearsay. Mr. Harris, the defendant, was charged with Assault in the Third Degree, pursuant to NY PL 120.00(1), Harassment in the Second Degree pursuant to NY PL 240.26(1), Petit Larceny pursuant to NY PL 155.25 and Criminal Possession of Stolen Property in the Fifth Degree NY PL 165.40. A person is guilty of Assault in the Third Degree if he intended to, and did cause, physical injury to another person. Petit Larceny is when you steal property worth $1000 or less. Harassment in the Second Degree is established if the prosecution could show that the defendant was intending to annoy, alarm, or harass the victim by subjecting that person to physical conduct. And lastly, a person is guilty of Criminal Possession of Stolen Property if he/she knowingly possesses stolen property with the intent to benefit him/herself.

The People brought their charges based on factual the observations of responding Officer Adam Gonzalez (he responded to the 9-1-1 call by the victim/complainant). When he arrived to the house the complainant, Lanique Reaves, was yelling and breathing erratically. Officer Gonzalez noticed she had a scratch under her eye with bruising and swelling. The officer asked Lanique what happened and she said that her boyfriend, the defendant, hit her across the face (Assault and Harassment) and took her cell phone (Petit Larceny and Criminal Possession of Stolen Property). Now, if Lanique later confirmed this report with an affidavit filed in court accompanying the charges (called a “supporting deposition” or “corrob”), there would be no question that the People had satisfied their burden of presenting non-hearsay factual allegations showing that the defendant committed each element of each offense charged. However, like in many “domestic abuse” cases the victim/complainant may not cooperate with the police and the ADA prosecuting the case. As a result, these supporting papers are more difficult to obtain.

Thus, Mr. Harris challenged the charges as insufficient arguing that the statements made by the complainant were uncorroborated hearsay. Hearsay is an out of court statement by a person, offered to prove the truth of the matter asserted. In this case Lanique’s statement was made out of court to Officer Gonzalez, offered to prove that the defendant did hit her in the face and took her cell phone. So the statements offered by Officer Gonzalez are hearsay. However, there are many exceptions to the hearsay rule that allow statements to be presented as evidence in court. One such exception is an “excited utterance”–if the speaker was still under the stress caused by a startling event, the statement is thought to have inherent truth and thus is allowed. For example, after a witness rushes over to a injured person who was just shot and they say “Oh my God! Joan just shot me.”

The court rejected Mr. Harris’ argument stating that the statements made by Lanique to the Officer, qualified as an “excited utterance.” The court believed that such a confrontation qualified as a “startling event,” arguing that getting hit by an intimate partner is traumatic. The court also addressed the fact that the statements were made in response to an Officer’s questions, because traditionally an “excited utterance” is a statement provided spontaneously by the speaker to show that the declarant is not capable of reflection and thus not capable of fabrication. However, the court argued that due to the nervous and fearful behavior exhibited by the speaker (flailing of her arms, yelling, crying, breathing heavy) the statements were clearly not made after “studied reflection.” So the takeaway from the decision in People v. Jamel Harris is that, particularly in domestic abuse cases, the prosecution may be able to bring charges solely based on an officer’s affidavit recalling statements made by the victim to the officer, even if the officer asked the questions and the victim later did not corroborate the statements. Certainly, it behooves you and your counsel to always be prepared.

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