Summary
The New York Court of Appeals affirmed the Appellate Division order upholding Emmanuel Almonte’s convictions. The majority held that the trial court properly denied a lesser-included-offense charge for third-degree assault and that any error in admitting the victim’s 911 call was harmless; it also held that the broader challenge to the excited-utterance exception was unpreserved. Judge Rivera dissented, concluding that the jury should have received the third-degree assault charge and that the 911 callback statements were inadmissible.
Topics
Practice areas
Questions Presented
- Whether the trial court erred by refusing to charge the jury on third-degree assault as a lesser-included offense of second-degree assault.
- Whether admission of the victim’s 911 call under the excited utterance exception required reversal.
- Whether defendant preserved a challenge to the continued viability of the excited utterance exception to the hearsay rule.
Holdings
- The trial court properly denied defendant’s request for a third-degree assault charge because defendant failed to demonstrate a reasonable view of the evidence supporting the lesser offense but not the greater offense.
- Even assuming that admission of the 911 call under the excited utterance exception was erroneous, any error was harmless and did not require reversal.
- Defendant’s contention that the excited utterance exception should no longer be recognized was not preserved for appellate review.
Key quotations
“Defendant failed to “show that there [was] a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser included offense but not the greater”” (at 1)
“Assuming, without deciding, that it was error to admit the 911 call, any such error would have been harmless” (at 2)
Factual background
The prosecution alleged that defendant and a codefendant attacked the victim in a stairwell at gunpoint and stole the victim’s cell phone. The victim testified that he was struck and injured during the attack, and a 911 call made shortly afterward included statements that someone had put a gun to his head and assaulted him. No gun was recovered, and the jury acquitted defendant of first-degree robbery but convicted him of two counts of second-degree robbery, second-degree assault, and attempted first-degree assault.
Procedural history
Following a jury trial, defendant was convicted of two counts of second-degree robbery, second-degree assault, and attempted first-degree assault, and acquitted of first-degree robbery. Supreme Court declined to charge third-degree assault as a lesser-included offense and admitted a 911 call under the excited utterance exception. The Appellate Division affirmed, and a Judge of the Court of Appeals granted leave to appeal.