People v. Buie

Green, J. P. (concurring).

We concur in the result reached by the majority. In our view, however, the 911 call does not qualify for admission as a present sense impression because the declarant was available and testified at trial. We are persuaded that the declarant must be unavailable as a witness before hearsay may be admitted as a present sense impression. The requirement of unavailability derives support from several sources. As noted by the Court of Appeals in People v Brown (80 NY2d 729), the present sense impression provision in the 1982 draft of the Proposed New York Code of Evidence…