                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   105200
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MALIK HASKINS,
                    Appellant.
________________________________


Calendar Date:   September 3, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                             __________


     John T. Casey Jr., Troy, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered January 6, 2012, upon a verdict
convicting defendant of the crime of burglary in the second
degree.

      On December 12, 2010, upon returning to her home in the
Town of Ulster, Ulster County, the victim observed an unknown car
exit from her driveway, and she followed it out of curiosity.
Pulling alongside the other car, she recognized both the
passenger, whom she identified as defendant, and the female
driver, defendant's girlfriend; the victim had known defendant
for many years and considered him a family friend. The victim
spoke briefly with defendant, asking if he was "looking for
[her]," and observed a large flat screen television in the rear
                              -2-                105200

of the car. She then drove home and, upon arriving, discovered
that the side door to her home had been forced open and her 42-
inch flat screen television was missing. The victim called 911
to report the burglary; while waiting for the police to arrive,
she received a call from an unidentified male, who directed her
to a designated location, where she went and retrieved her
television from defendant. Responding to the scene, police
observed signs of a forced entry. The victim then returned with
her television, and identified defendant as the individual who
had returned it to her. Thereafter, following a jury trial,
defendant was convicted as charged of burglary in the second
degree and sentenced to a prison term of 12 years with five years
of postrelease supervision. Defendant appeals.

      Defendant challenges County Court's determination,
following a Huntley hearing, that portions of statements he made
to police at the station were admissible. In so holding, the
court credited the testimony of a detective of the Town of Ulster
Police Department. The detective testified that defendant
willingly came to the police station upon being asked to do so,
Miranda warnings were provided and, approximately five minutes
later, he requested counsel and stopped talking. At that point
all questioning ceased, and he was brought to the holding cell in
the booking room for processing. Shortly thereafter, defendant's
girlfriend, who had arrived separately at the station, was also
brought into the booking room for processing, and she was seated
in a chair outside the holding cell. While the girlfriend's
pedigree information was being obtained, defendant asked what was
going to happen, and officers advised him regarding the arrest
and arraignment process, but they did not inquire in any manner
about the burglary. Defendant then asked what would happen if he
told them what had occurred and that his girlfriend had no
involvement, to which another detective responded that it would
be "too little, too late." Defendant thereafter made additional
statements. County Court held that defendant's statements up to
the point of this response were admissible, and those made
thereafter were not. At trial, the court permitted a 14-second
redacted version of the booking room surveillance video to be
played for the jury. Defendant argues that the court erred in
denying his motion to suppress his statements made after invoking
his right to counsel because they were provoked by police conduct
                              -3-                105200

in bringing his girlfriend into the booking area while he was
being processed, and further erred in allowing the corresponding
station house video at trial as it was entirely prejudicial, with
no probative value.

      As defendant requested counsel after being advised of his
Miranda rights at the police station, any further police
questioning was precluded (see People v Ramos, 99 NY2d 27, 32-33
[2002]; People v West, 81 NY2d 370, 373-374 [1993]; People v
Dashnaw, 85 AD3d 1389, 1390-1391 [2011], lv denied 17 NY3d 815
[2011]). However, "[n]otwithstanding this rule, statements made
by a defendant who has invoked the right to counsel may
nevertheless be admissible at trial if they were made
spontaneously " (People v Harris, 57 NY2d 335, 342 [1982], cert
denied 460 US 1047 [1983]). Here, we agree with County Court
that the People established beyond a reasonable doubt that,
following his request for counsel, defendant's statements were
not "the result of express questioning or its functional
equivalent" (People v Roberts, 12 AD3d 835, 836 [2004], lv denied
4 NY3d 802 [2005] [internal quotation marks and citations
omitted]), but were, instead, spontaneous up until the "too
little, too late" remark (see People v Maye, 18 AD3d 1026, 1028
[2005], lv denied 5 NY3d 808 [2005]; People v Murphy, 51 AD3d
1057, 1058 [2008], lv denied 11 NY3d 792 [2008]). That is, his
statements to that point were "neither induced, provoked nor
encouraged by the actions of the police officers" in simply
bringing the girlfriend into the booking room, an action
consistent with their routine procedure (People v Harris, 57 NY2d
at 342; see People v Baker, 27 AD3d 1006, 1008 [2006], lv denied
7 NY3d 785 [2006]). Defendant's subsequent remarks were properly
suppressed, and appropriate limiting instructions provided. As
to the booking video, we note that the trial testimony had
already established the setting in which defendant's statements
occurred. Although the probative value was limited, we do not
find that the court abused its discretion in determining that the
video of the statements was relevant to the burglary charge and,
thus, in allowing a redacted segment to be played before the jury
(see People v Cintron, 95 NY2d 329, 332-333 [2000]; People v
Scarola, 71 NY2d 769, 777 [1988]).
                              -4-                105200

      Next, defendant argues that County Court erred in admitting
into evidence a redacted recording of the victim's 911 call as an
excited utterance, because her call was made after she had time
for reflection. "An out-of-court statement is properly
admissible under the excited utterance [hearsay] exception when
made under the stress of excitement caused by an external event,
and not the product of studied reflection and possible
fabrication" (People v Johnson, 1 NY3d 302, 306 [2003]; see
People v Edwards, 47 NY2d 493, 496-97 [1979]). "Among the
factors to be considered in determining whether . . . a statement
is admissible [are] the nature of the startling event[,] the
amount of time which has elapsed between the [startling]
occurrence and the statement[,] and the activities of the
declarant in the interim to ascertain if there was significant
opportunity to deviate from the truth" (People v Johnson, 277
AD2d 702, 705 [2000], lv denied 96 NY2d 831 [2001] [internal
quotation marks and citation omitted]; see People v Brown, 70
NY2d 513, 519 [1987]; People v Auleta, 82 AD3d 1417, 1419 [2011],
lv denied 17 NY3d 813 [2011]), although "the 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 and citations omitted]; accord People v Johnson,
1 NY3d at 306; see also People v Nelson, 266 AD2d 725, 726
[1999], lv denied 95 NY2d 801 [2000]; see generally, Michael J.
Hutter, Excited Utterances and Present Sense Impressions: Time to
Reevaluate?, NYLJ, Aug. 7, 2014 at 3, col 1).

      Here, the victim testified that, although she had followed
defendant's car and had spoken with him, it was only after she
returned home that she discovered that her home had been broken
into and her television was missing, and she called 911 "right
away." In the 911 call, the obviously distressed victim
exclaimed, "I was just robbed," and explained her contact with
defendant. As County Court correctly found, being the victim of
a burglary is "a startling event" and the victim's call was made
"under the stress and excitement of a startling event and [was]
not the product of any reflection and possible fabrication" (see
People v Prashad, 297 AD2d 352, 352 [2002], lv denied 99 NY2d 563
[2002]; People v Nelson, 266 AD2d at 726; see also People v
Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624
[2003]; compare People v Cantave, 21 NY3d 374, 381-382 [2013]).
                              -5-                105200

Finally, contrary to defendant's argument, although the victim
had spoken with defendant and had observed a television, the
events preceding her discovery of the burglary did not constitute
intervening events, allowing her an opportunity for studied
reflection; such intervening events must necessarily occur
following the startling event.

      We further reject defendant's claim that the admission of
the recording of the 911 call violated his right to confront
witnesses against him under Crawford v Washington (541 US 36
[2004]; see Davis v Washington, 547 US 813, 821 [2006]). First,
we note that both the victim and the police dispatcher who
received her call did testify at trial. Further, statements made
in response to police inquiries for the primary purpose of
enabling them to meet an ongoing emergency, rather than for
providing evidence for a later prosecution, are deemed to be
nontestimonial in nature and, thus, do not violate the
Confrontation Clause (see Davis v Washington, 547 US at 822;
People v Nieves-Andino, 9 NY3d 12, 14-15 [2007]). Here, the
victim's statements on the 911 recording were nontestimonial (see
People v Kenyon, 108 AD3d 933, 937 [2013], lv denied 21 NY3d 1075
[2013]; People v Shaver, 86 AD3d 800, 802 [2011], lv denied 18
NY3d 962 [2012]; see also People v Anderson, 114 AD3d 1083, 1085
[2014], lv denied 22 NY3d 1196 [2014]).

      Following a Sandoval hearing, County Court held that the
People would be allowed to inquire to a limited extent regarding
defendant's prior convictions if he testified, finding that his
robbery conviction from 2000 revealed that defendant was willing
to place his own interests above those of society and that it
went directly to his credibility, while finding some of the
underlying facts were too dissimilar and prejudicial. Relative
to another criminal conviction, inquiry was limited to
establishing that there had been such a conviction, in 2009.
Defendant did not object to these rulings, and we decline his
request to take corrective action in the interest of justice, as
no abuse of discretion is apparent (see CPL 470.15 [6] [a];
People v Wilson, 78 AD3d 1213, 1215-1216 [2010], lv denied 16
NY3d 747 [2011]; People v Jones, 70 AD3d 1253, 1254-1255 [2010];
see generally People v Hayes, 97 NY2d 203, 207-208 [2002]; People
v Walker, 83 NY2d 455, 459 [1994]).
                              -6-                  105200

      Finally, defendant did not preserve his claim that the
sentence imposed constituted a penalty for exercising his
constitutional right to a jury trial in that it was longer than
the People's pretrial plea offer (see People v Hurley, 75 NY2d
887, 888 [1990]; People v Ward, 10 AD3d 805, 808 [2004], lv
denied 4 NY3d 768 [2005]). In any event, we note that County
Court did not consent to that offer, the disparity is not
particularly significant, and the record contains no support for
the conclusion that the sentence was retaliatory rather than
based upon the seriousness of this offense and other relevant
sentencing factors. We find no abuse of discretion or
extraordinary circumstances warranting a reduction of the
sentence in the interest of justice (see People v Snyder, 91 AD3d
1206, 1215 [2012], lv denied 19 NY3d 968 [2012], cert denied ___
US ___, 133 S Ct 791 [2012]; People v Molina, 73 AD3d 1292, 1293
[2010], lv denied 15 NY3d 807 [2010]).

     Peters, P.J., Lathtinen, Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
