The People v. Earl Jones , 28 N.Y.3d 1037 ( 2016 )

This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 178
The People &c.,
Respondent,
v.
Earl Jones,
Appellant.
Jody Ratner, for appellant.
Jared Wolkowitz, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
A plainclothes police officer observed defendant, who
was carrying a tile cutter and green duffle bag, pulling on the
lock of a door to a construction site. The officer decided to
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follow defendant and observed him enter the open driver's side
door of a FedEx delivery truck that was parked on the street.
The officer saw defendant rummage through the front compartment
of the truck and then walk around to the back, where packages
were stored. The officer testified that, from his vantage point,
he could see a portion of defendant's leg as he stood for a few
seconds at the back of the truck. Just as the officer began to
approach, defendant walked away. When the officer reached the
back of the vehicle, an unidentified woman who was standing
nearby asked: "Did you see he was trying to get into the back of
the truck? Are you going to get him?" Soon thereafter, the
officer observed defendant emerge from a building that was under
construction a few blocks away. Defendant was still carrying the
tile cutter and duffle bag when the officer confronted him and
placed him under arrest.
Before trial, the prosecutor sought to admit the
hearsay statement made by the unidentified woman as either an
"excited utterance" or "present sense impression." Defense
counsel opposed the motion, but Supreme Court ruled that the
statement was admissible under either exception to the hearsay
rule. The jury found defendant guilty of burglary in the third
degree for unlawfully entering the FedEx truck with the intent to
steal and criminal trespass in the third degree for unlawfully
entering the building under construction. Defendant appealed,
and the Appellate Division affirmed (127 AD3d 517 [1st Dept
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2015]).
Defendant's principal argument on appeal is that the
trial court erred in admitting the hearsay statement of the
unidentified woman. We hold that the statement was properly
admitted as a present sense impression. That exception to the
hearsay rule allows the admission of "spontaneous descriptions of
events made substantially contemporaneously with the observations
. . . if the descriptions are sufficiently corroborated by other
evidence" (People v Brown, 80 NY2d 729, 734 [1993]). Here, the
woman's statement was made to the officer immediately after the
event she described and before she had an opportunity for studied
reflection. The officer's own observations sufficiently
corroborated her description to allow its admission at trial (see
id. at 736-737).
Because the woman's statement was admissible as a
present sense impression, we need not address whether it was also
admissible as an excited utterance. Defendant's remaining
challenge to the statement on Confrontation Clause grounds is
unpreserved for our review, and his argument with respect to the
legal sufficiency of the verdict lacks merit.
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Order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.
Decided November 21, 2016
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