               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

486
KA 10-02035
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

JABARI H. SPENCER, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered September 24, 2010. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of robbery in the first degree (Penal Law § 160.15 [4]),
defendant contends that County Court erred in admitting in evidence
the recording of the 911 call made by one of the victims following the
robbery. We agree. The 911 recording constitutes hearsay (see People
v Buie, 86 NY2d 501, 505), and none of the exceptions to the rule
against hearsay apply herein. The 911 recording is not admissible
under the present sense impression exception because there is nothing
in the record establishing that the victim’s “statement describes or
explains an event or condition and was ‘made while the [victim] was
perceiving the event or condition, or immediately thereafter’ ”
(People v Vasquez, 88 NY2d 561, 575, quoting People v Brown, 80 NY2d
729, 732). Specifically, it is not clear when the 911 call was made
relative to when the robbery ended. Moreover, the victim’s statements
on the 911 recording also included references to other events, i.e.,
one that occurred at least one day before the robbery and another that
occurred a week prior to the robbery. Thus, those statements clearly
do not reflect a present sense impression (see id.).

     Further, the 911 recording is not admissible as an excited
utterance because the victim’s statements clearly indicate that he had
time to reflect on what had occurred prior to describing the robbery
and who had committed the robbery. “Excited utterances ‘are the
product of the declarant’s exposure to a startling or upsetting event
that is sufficiently powerful to render the observer’s normal
reflective processes inoperative[,]’ preventing the opportunity for
deliberation and fabrication” (People v Carroll, 95 NY2d 375, 385,
                                 -2-                           486
                                                         KA 10-02035

quoting Vasquez, 88 NY2d at 574; see People v Edwards, 47 NY2d 493,
496-497). Given that the 911 recording constituted hearsay, it was
error to admit it in evidence and such admission constituted improper
bolstering of the testimony of the victim who made the 911 call (see
generally Buie, 86 NY2d at 510; People v McDaniel, 81 NY2d 10, 18).

     Nevertheless, we conclude that the court’s error in admitting in
evidence the 911 recording is harmless because the “proof of
[defendant’s] guilt was overwhelming . . . and . . . there was no
significant probability that the jury would have acquitted [him] had
the proscribed evidence not been introduced” (People v Kello, 96 NY2d
740, 744; see generally People v Crimmins, 36 NY2d 230, 241-242). Two
of the three victims of the robbery were acquainted with defendant,
and they both recognized him almost immediately as the perpetrator,
despite the fact that his face was covered. Moreover, those witnesses
were consistent in their respective versions of the facts regarding
the robbery and were unequivocal in their identification of defendant
as the perpetrator.

     The sentence is not unduly harsh or severe. We have reviewed
defendant’s remaining contentions and conclude that none requires
reversal.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
