People v. Mackey

A. KIRKE BARTLEY, JR., J. Defendant is charged with two counts of endangering the welfare of a child in violation of Penal Law § 260.10 (1), one count of assault in the third degree in violation of Penal Law § 120.00 (1), one count of assault in the third degree in violation of Penal Law § 120.00 (2), one count of attempted assault in the third degree in violation of Penal Law §§ 110.00 and 120.00 (1), and one count of harassment in the second degree in violation of Penal Law § 240.26 (1). On September 23, 2004, defendant submitted a notice of motion and memorandum of law requesting a pretrial hearing to determine whether statements of the complaining witness, Damita D., to law enforcement fell within the excited utterance exception to the hearsay rule. Defendant further requested that the People be precluded from introducing such statements as violative of the Confrontation Clause of the Federal Constitution (US Const Amends VI, XIV) pursuant to Crawford v Washington (541 US ___, 124 S Ct 1354 [2004]). On September 28, 2004, the People submitted a memorandum of law in response to which defendant replied on September 29, 2004. A pretrial suppression hearing had been held on July 14, 2004. The sole witness, Police Officer Aimee Melenciano, testified on behalf of the People. Upon defendant's present motion requesting an additional pretrial hearing, the court made an in-court inquiry of the defense as to what, if any, additional facts would be put before the court. The defense acknowledged that the relevant facts had been examined during the earlier pretrial hearing and withdrew the request for an additional hearing.

Police Officer Aimee Melenciano was working a tour of duty in uniform with seven other officers in a marked police van on October 8, 2003. Officer Melenciano was seated in the passenger seat of the van. At approximately 7:10 p.m., while the officers were stopped in the van at a red light on the corner of 116th Street and Madison Avenue, Damita D. waved the van down and approached Officer Melenciano while she was seated in the van. Damita D. was crying, her face was red and swollen, her speech was shaky, she seemed nervous, and she had a baby in a stroller who was crying and another child standing beside her. Officer Melenciano asked her what was wrong and she stated that her boyfriend had punched her in the face and pushed her down and then tried to take her children. Damita D. pointed to the left side of her cheek, which was red and swollen, and said that her boyfriend had punched her there. Officer Melenciano asked her if she needed medical attention to which she said no. Officer Melenciano asked Damita D. where and when this had happened, and she stated that it had just occurred around the corner on 115th Street. As Officer Melenciano attempted to get a description of defendant from her, Damita D. pointed at defendant and stated, "there he goes" as defendant approached them walking northbound on Madison Avenue. Two officers then stopped defendant while Officer Melenciano remained with Damita D. Defendant then started yelling, "this bitch is trying to get me arrested again. I will fuck you up. I'll fuck you up when I get out. I'll get my cousin to fuck you up. I'll kill you."

The Supreme Court of the United States has held that the Confrontation Clause of the Federal Constitution's Sixth Amendment bars the admissibility of out-of-court testimonial statements by an unavailable witness offered in a criminal trial to prove the truth of a matter that it asserts unless the defendant has had a prior opportunity to cross-examine the witness about the statement. (Crawford v Washington, 541 US ___, 124 S Ct 1354 [2004].) However, a comprehensive definition of "testimonial" was not articulated, beyond designating that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (541 US at ___, 124 S Ct at 1374.) The term police interrogation is used "in its colloquial, rather than any technical legal, sense." (541 US at ___ n 4, 124 S Ct at 1365 n 4.) Courts must now decide what out-of-court statements by an unavailable witness, within and beyond the core class of designated "testimonial" statements, should be barred from admissibility at trial as violative of the Confrontation Clause. New York courts have begun this process with conflicting reasoning and result. The earliest cases involving 911 calls illustrate this conflict. In People v Moscat (3 Misc 3d 739 [Crim Ct, Bronx County 2004]), the court held that a 911 call for help from an unavailable complaining witness in a domestic assault case is not testimonial in nature since the call was not initiated by the police, and not generated to seek evidence against a particular suspect or in contemplation of future legal proceedings, but rather to rescue the caller from immediate peril. Similarly, in People v Conyers (4 Misc 3d 346 [Sup Ct, Queens County 2004]), the court held that a 911 call for police assistance to such. (See People v Edwards, 47 NY2d 493, 497 [1979]; see also People v Brown, 70 NY2d 513 [1987].) For the reasons set forth above, defendant's motion to preclude the People from introducing the statements of Damita D. into evidence is denied. [*] Notably, Damita D. has refused to participate in the prosecution of this case.