People v. Cummings

31 N.Y.3d 204 (2018)

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Nature of the Case

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Facts

Relaford, Phillips, and Allen were standing on a street corner. A silver minivan drove past and double-parked. The passenger exited, walked past the group, then turned around and pointed a gun at Relaford and shot Relaford in the hand and leg, Phillips in the leg, and Allen in the buttocks. The gunman reentered the minivan, which sped off. Phillips called 911. About 20 seconds into the call, someone in the background can be faintly heard saying, 'Yo, it was Twanek, man! It was Twanek, man!' A woman in the assembled crowd provided the police with a partial license plate number for the minivan. An officer spotted and stopped a minivan matching the description and partial license plate a short distance from the crime scene, at which point both the driver and passenger exited the vehicle. The officer arrested the driver, but the suspected gunman slipped away. D’s fingerprint was found on the passenger door of the minivan, and cell site data is consistent with his presence in the area at the time of the shooting. No weapon was recovered, and the shooting victims failed to identify D in a lineup. Neither the shooter nor the person saying, 'It was Twanek, man,' can be identified from surveillance video. P sought to admit the unidentified person's statement on the 911 call under the excited utterance exception to the hearsay rule. The court denied the application. The jury deadlocked. The Justice in the second trial denied P's application to admit the statement. She took ill was replaced by a third Justice. P renewed their application to admit the statement, and the court allowed admission of the statement as an excited utterance. D was convicted and appealed. D claimed there was no evidence from which to infer that the unidentified speaker personally observed the shooting. The court denied the appeal and D appealed again.