This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

-----------------------------------------------------------------

No. 178 

The People &c.,

 Respondent,

 v.

Earl Jones, 

 Appellant.

Jody Ratner, for appellant.

Jared Wolkowitz, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed.

A plainclothes police officer observed defendant, who

was carrying a tile cutter and green duffle bag, pulling on the

lock of a door to a construction site. The officer decided to

- 1 -
- 2 - No. 178

follow defendant and observed him enter the open driver's side

door of a FedEx delivery truck that was parked on the street. 

The officer saw defendant rummage through the front compartment

of the truck and then walk around to the back, where packages

were stored. The officer testified that, from his vantage point,

he could see a portion of defendant's leg as he stood for a few

seconds at the back of the truck. Just as the officer began to

approach, defendant walked away. When the officer reached the

back of the vehicle, an unidentified woman who was standing

nearby asked: "Did you see he was trying to get into the back of

the truck? Are you going to get him?" Soon thereafter, the

officer observed defendant emerge from a building that was under

construction a few blocks away. Defendant was still carrying the

tile cutter and duffle bag when the officer confronted him and

placed him under arrest. 

Before trial, the prosecutor sought to admit the

hearsay statement made by the unidentified woman as either an

"excited utterance" or "present sense impression." Defense

counsel opposed the motion, but Supreme Court ruled that the

statement was admissible under either exception to the hearsay

rule. The jury found defendant guilty of burglary in the third

degree for unlawfully entering the FedEx truck with the intent to

steal and criminal trespass in the third degree for unlawfully

entering the building under construction. Defendant appealed,

and the Appellate Division affirmed (127 AD3d 517 [1st Dept

- 2 -
- 3 - No. 178

2015]). 

Defendant's principal argument on appeal is that the

trial court erred in admitting the hearsay statement of the

unidentified woman. We hold that the statement was properly

admitted as a present sense impression. That exception to the

hearsay rule allows the admission of "spontaneous descriptions of

events made substantially contemporaneously with the observations

. . . if the descriptions are sufficiently corroborated by other

evidence" (People v Brown, 80 NY2d 729, 734 [1993]). Here, the

woman's statement was made to the officer immediately after the

event she described and before she had an opportunity for studied

reflection. The officer's own observations sufficiently

corroborated her description to allow its admission at trial (see

id. at 736-737).

Because the woman's statement was admissible as a

present sense impression, we need not address whether it was also

admissible as an excited utterance. Defendant's remaining

challenge to the statement on Confrontation Clause grounds is

unpreserved for our review, and his argument with respect to the

legal sufficiency of the verdict lacks merit. 

* * * * * * * * * * * * * * * * *

Order affirmed, in a memorandum. Chief Judge DiFiore and Judges

Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided November 21, 2016

- 3 -