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People v. Fratello, 1998 N.Y. Int. 0152 (Dec. 3, 1998).




Whether out-of-court statements identifying Defendant as an assailant are admissible under the excited utterance exception to the hearsay rule and, if so, whether that evidence is sufficient.


Yes. The statements qualify as "spontaneous declarations" made by a party while under the "stress of nervous excitement resulting from an injury or other startling event." Under the circumstances of this case, the ten minute interval between the event and the statements in response to questioning by a police officer does not detract from the spontaneity of the declaration. In addition, the trial court was not in error for excluding expert testimony on night visual perception. Finally, the Court of Appeals agreed that there was sufficient evidence to provide a basis for the jury determination.


Defendant Frank Fratello was convicted, by the trial court sitting without a jury, of attempted second degree murder.  The Appellate Division affirmed.  The New York Court of Appeals likewise affirmed.

Fratello's conviction stems from the shooting of his friend, Guy Peduto.  The bases of the conviction were two out-or-court statements by Peduto, which identified Fratello as his assailant, that were admitted under the "excited utterance" exception to the hearsay rule.  Peduto, having recanted his previous identification of Defendant as his assailant, was called as a defense witness.  On the stand, Peduto admitted his extensive criminal record and his close personal relationship with Defendant.  Peduto denied identifying Defendant as his assailant.

The Court of Appeals rejected the appellant's attack on the admission of Peduto's extra-judicial identifications under the "excited utterance" exception.  The Court reasoned that the circumstances, which included a car crash, gun shots, and profuse bleeding by Peduto, constituted "near-classic" examples of facts that satisfy the requirements of the "excited utterance" exception.

The Court of Appeals further concluded that Peduto had a sufficient opportunity to observe (even in the nighttime setting) his attacker and thus identify that attacker as the Defendant.  The Court repeated the trial court's finding that Peduto was a participant in the events speaking from his personal observation.

Further, the Court of Appeals found no error in the trial court's refusal to receive expert testimony on night vision.  Trial courts may refuse expert testimony on matters of common experience to lay persons (e.g. night vision).  The Court found no error in the trial court's refusal to admit evidence of bias of Peduto against Defendant that might have prompted a false identification.  The trial court found that Peduto's identification was based on personal observation (not biased motive) and that was sufficient.

Finally, the Court resolved Defendant's most compelling appeal--that the evidence in support of the guilty verdict was insufficient.  Defendant claimed the evidence supporting his conviction was insufficient for two reasons.  The prosecution's entire case was based on Peduto's prior, extra-judicial statements identifying the defendant.  And Peduto directly contradicted those statements in court.

Relying on the rule of People v. Jackson, 65 NY2d 265, at 272, Fratello asserted that the conflicting versions of the facts required a reversal as a matter of law.  The Court rejected this argument.  The Court read Jackson as a safeguard to prevent a jury finding based on mere speculation.  As long as a jury's decision is based on evidence (legitimate inference from proven facts) and not on speculation, it will not be overturned as lacking a sufficient evidentiary foundation.  Even if the only evidence upon which a conviction is based are conflicting statements by the same witness, the Court will not upset the fact-finder's determination of guilt.

The Court rejected a per se rule of automatic dismissal in cases of inconsistency between prior statements and trial testimony as the sole grounds for decision.  Rather, the Court of Appeals articulated a more flexible approach: as long as a fact finder's determination is based on justifiable inferences from proven facts and not on mere speculation, the Court will not disturb a finding of guilt.

The Court offered the reasons why the fact finder's determination in this case was not based on mere speculation but on legitimate evidentiary inferences.  A trial court could easily determine that Peduto's extra-judicial statements were more reliable than Peduto's in-court statements.  The out-of-court statements were made under stress without the opportunity to contrive and misrepresent.  While the credibility of Peduto's testimony was highly suspect due to his prior convictions and close relationship to the defendant.


The dissenting justice argued that when faced with irreconcilable evidence from the same witness as the sole basis for conviction, corroborating evidence should be required to support a guilty verdict.

Prepared by the liibulletin-ny Editorial Board.