People v. Jardin
154 Misc.2d 172, 1992 N.Y. Misc. LEXIS 229, 584 N.Y.S.2d 732 (1992)
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Rule of Law:
A 911 call made immediately after perceiving an event is admissible under the present sense impression exception to the hearsay rule if its reliability is corroborated by another witness. Conversely, a defendant's willingness to submit to a DNA test is inadmissible, self-serving hearsay offered to show a 'consciousness of innocence.'
Facts:
- On June 26, 1990, the defendant invited his next-door neighbor to his apartment to help with his college studies.
- After several hours, the defendant emerged naked from his bathroom, grabbed the woman, ripped her clothes off, and forcibly raped her on his bed.
- Angel Nieves and Valerie Lopez, neighbors living across the street, witnessed the assault through the defendant's open bedroom window.
- Immediately after witnessing the event, Nieves and Lopez ran to a street phone where Nieves called 911 to report the crime while Lopez stood beside him.
- Police arrived within minutes, at which point the victim, naked and screaming, ran out of the defendant's apartment.
- The defendant later agreed to a DNA test, but the results were inconclusive because the sperm sample recovered from the victim was of insufficient molecular weight.
- Prior to trial, the People were unable to locate Angel Nieves to have him testify.
Procedural Posture:
- The defendant was indicted for rape in the first degree and related offenses.
- During the jury trial in the Supreme Court of Bronx County, the defendant made a motion to introduce testimony that he had agreed to submit to a DNA test.
- The People (prosecution) made a motion to introduce into evidence the contents of a 911 tape from an unavailable witness.
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Issue:
Is a 911 tape in which an unavailable witness describes a sexual assault he just witnessed admissible under the present sense impression exception to the hearsay rule?
Opinions:
Majority - Sheindlin, J.
Yes. The 911 tape is admissible under the present sense impression exception to the hearsay rule. The court first addressed the defendant's motion to admit evidence of his willingness to take a DNA test, ruling it inadmissible. Such conduct is a non-verbal assertion offered to prove the truth of a fact (innocence), making it hearsay. Because the assertion is self-serving, it is inherently unreliable and does not fall under any hearsay exception. Furthermore, since the defendant could have been compelled to provide a blood sample and the test results were inconclusive, his willingness is not probative of innocence. Turning to the 911 tape, the court found it admissible as a present sense impression. Although the statement was not made contemporaneously with the event, it was made 'immediately thereafter' (approximately two minutes), which is permissible under the exception. The brief time lapse ensures reliability by preventing defects in memory and leaving little opportunity for fabrication. Critically, the trustworthiness of the tape is supported by the availability of Valerie Lopez, who also witnessed the event and was present during the 911 call, to corroborate the contents of the declaration and be subject to cross-examination.
Analysis:
This trial court opinion provides a clear application of the present sense impression hearsay exception in New York law, extending it to statements made moments after an event, not just during it. The decision emphasizes that the reliability of such a statement is paramount and can be established through strong corroborating evidence from another witness who perceived the event. The opinion also reinforces the judicial refusal to admit evidence of 'consciousness of innocence,' treating it as unreliable, self-serving hearsay, in stark contrast to the established admissibility of evidence showing 'consciousness of guilt' (e.g., flight from a crime scene).
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