Hearsay, standing alone, is not enough. Excited Utterance.

Mermelstein v Singer, 2011 NY Slip Op 04736 (App. Div., 1st 2011)

The record demonstrates that the IRA account was solely in plaintiff's name and that all the funds and securities in the account came from other IRA accounts solely in his name (see Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50 [2006]). In support of her argument that her late father had some ownership interest in the account, defendant relies solely on hearsay conversations and a hearsay document, which, without more, cannot withstand summary judgment (see Narvaez v NYRAC, 290 AD2d 400, 400-401 [2002]).

Matter of Odalis F., 2011 NY Slip Op 04738 (App. Div., 1st 2011)

The presentment agency's case rested on a 911 call made by a nontestifying complainant, who was appellant's older brother. We conclude that the call was improperly admitted as an excited utterance.

An extrajudicial statement is admissible under the excited utterance exception to the hearsay rule when the declarant is "so influenced by the excitement and shock of [a startling] event that it is probable that he or she spoke impulsively and without reflection" (People v Caviness, 38 NY2d 227, 231 [1975]). "[T]he time for reflection is not measured in minutes or seconds, but rather is measured by facts" (People v Vasquez, 88 NY2d 561, 579 [1996] [internal quotation marks omitted]).

In People v Robinson (282 AD2d 75 [2001]) we considered the admissibility of a 911 call under the analogous present sense impression exception to the hearsay rule. We held that a victim's 911 call made several minutes after a robbery was inadmissible where the declarant called her employer to report the robbery before calling the police; it could not be said that she did not have time to reflect on the event before calling 911.

Notwithstanding the different bases for presuming the trustworthiness of statements under the respective hearsay exceptions, a declarant's activities before making the statement at issue are relevant under both. Here, the complainant's conduct prior to calling 911, like that of the declarant in Robinson, indicates a capacity for deliberation and reflection. Although the testimony did not establish how much time passed between the time appellant allegedly threatened the complainant with a knife and the time he placed the 911 call, it is clear that several intervening events occurred. The complainant called his mother on the phone and waited for her  to get home. When his mother arrived, the complainant asked her whether he should call the police.

Moreover, other than the recording of the 911 call itself, there is no evidence of the existence of the allegedly startling event that led to the alleged excited utterance.



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