S. Dean, Center for Appellate Litigation, New York (Claudia
Trupp of counsel), for appellant.
D. Clark, District Attorney, Bronx (T. Charles Won of
counsel), for respondent.
Friedman, J.P., Richter, Gische, Gesmer, JJ.
Supreme Court, Bronx County (Peter J. Benitez, J.), rendered
July 2, 2013, as amended July 19, 2013, convicting defendant,
after a jury trial, of attempted murder in the second degree,
and sentencing him to a term of 25 years, unanimously
reversed, on the law, and the matter remitted for a new
Allen Bell was convicted of the attempted second-degree
murder of Kevin Russo. Russo was shot once in the head, but
survived his injuries with physical and psychological
limitations. A disputed issue at trial was the extent he may
have also suffered cognitive impairments, affecting the
credibility of his testimony. Bell appeals from his
conviction on the basis that the jury's verdict was
against the weight of the evidence, and alternatively, that
it was reversible error for the court to have admitted
certain hearsay records in evidence without a proper
foundation or limiting instruction. While we find that the
verdict was not against the weight of the evidence, we
reverse the conviction and remit for a new trial based upon
the improper admission of hearsay evidence.
about midnight on October 25, 2007, police responded to a
"shots fired" 911 call and discovered two bodies at
the top floor of a five story walk-up building on the Grand
Concourse in the Bronx. The two-bedroom apartment
(Newton's apartment) was a "stash" house where
drugs where stored and sold. One body was that of Daniel
Newton, also known as "Danny, " "D" or
"B-Block, " who was a large scale drug dealer. The
other body was of Lumildy Rosado, Newton's girlfriend,
known as "Mindy." Each victim sustained a single,
close range gunshot to the head and each died immediately. A
third victim, Russo, was also shot once in the forehead, but
he survived. Russo remains paralyzed on one side and, at the
time of trial, resided in a nursing home.
who is also known as "Butter, " and his codefendant
Raheim Bruno, were charged with murder in the first degree,
two counts of murder in the second degree, attempted murder
in the second degree, two counts of manslaughter in the first
degree, assault in the first degree, and criminal possession
of a weapon in the second degree, in connection with Newton
and Rosado's murders. They were also charged with the
attempted second-degree murder of Russo. Bell and Bruno were
jointly tried. Each defendant was acquitted of the murder
charges regarding Newton and Rosado, but convicted of
Russo's attempted murder. In November 2016, this Court
reversed Bruno's conviction and dismissed the indictment
against him on the basis that there was insufficient evidence
adduced at trial that he shared Bell's intent to cause
Russo's death (People v Bruno, 144 A.D.3d 413');">144 A.D.3d 413
[1st Dept 2016], lv denied 28 N.Y.3d 1182');">28 N.Y.3d 1182 ).
evidence at trial was as follows:
police arrived at the apartment, finding two guns,
approximately a kilogram of cocaine, marijuana, ecstasy
pills, and approximately $5, 000 in cash. Newton's body,
found in the living room located in the rear right side of
the apartment, had a single bullet hole in the back of his
head. The furniture was overturned. Rosado's nude body
was found in Newton's bedroom, to the left and rear of
the apartment. The door to Russo's bedroom, located near
the front entrance of the apartment, to the right of its
interior hallway, had been kicked down or knocked off its
hinges. The door was smeared with blood.
were also dispatched to a nearby subway station at 171st
Street and the Grand Concourse. Witnesses described seeing
two men, one of them approximately six feet tall and light
skinned black, possibly Hispanic. The officers also found an
iced tea bottle in a nearby trash can and a white plastic
bottle cap nearby. The bottle cap appeared to have blood on
it. Both items were swabbed later and tested for DNA.
police team investigated the apartment, tested for latent
prints and swabbed various items believed to have human blood
on them. They also searched for weapons and ballistics.
Altogether, 13 pieces of ballistics evidence were recovered,
including: a discharged shell casing in the bedroom where the
Rosado's body was found, a live cartridge in Russo's
bedroom, another live cartridge in the apartment's
interior hallway, and a third live cartridge in the living
room, along with a discharged shell near Newton's body.
Also recovered were two deformed bullets, two shell casings
and a broken pistol handle, whose magazine contained three
uncharged cartridges. The broken handle, from a 9 millimeter
gun, was found near where Russo was shot. Another gun was
found in a drawer in Newton's bedroom.
neighbors testified at trial. One witness, D.L., was 12 years
old when the shooting occurred in 2007. D.L. lived next door
to Newton and knew the victims well. D.L. testified that
around midnight of October 25th, she was awakened by yelling,
screaming and "tussling" next door. She heard
someone calling for "Danny" and testified it
sounded like someone was trying to break into Newton's
apartment. While placing a call to her mother, D.L. heard a
gunshot, a short pause and then another gunshot. D.L.
testified she then heard a voice, which she recognized as
Russo's, urgently saying "Yo D, Yo D, get up, "
a third gunshot and the sound of people running down the
hallway stairs. She then heard someone repeatedly saying,
"[C]ome on, come on... get the gun." D.L. also
testified she heard someone say, "Gutta, get the
gun."  According to D.L., Russo's urgent
calling out to Newton came from somewhere near the front
entrance to the apartment, where Russo's bedroom would
have been. When police arrived and knocked on her door, D.L.
did not answer, but remained silently inside. D.L.'s
mother never took her to speak to the police and it was not
until several years later, after running into Newton's
sister in court, that D.L. came forward. T.J., who lived on
the fourth floor, in the apartment below Newton's, also
testified at trial. T.J. was familiar and friendly with the
occupants of Newton's apartment. She testified that
around midnight on October 25th, she heard loud noises,
"tussling, " and then a gunshot from the apartment
above. She heard Russo screaming, "D, D, " a second
shot, then Russo screaming for somebody to call the police.
T.J. called 911. She then heard a female screaming for help,
more shots, more tussling and dogs barking, at which time
T.J. placed a second 911 call. From the door's peephole,
she had a direct view of the stairs leading down from the
fifth floor. T.J. saw two men, one a light-skinned black or
Hispanic male, running down the stairs holding something in
his hand, resembling a stick or a two-by-four piece of wood.
T.J. also got a glimpse of a second person, running down from
the fourth floor towards the floor below. She identified the
second person as a black male. At trial, T.J. identified Bell
as the light-skinned man she saw facing her as he ran down
the stairs from the fifth floor. T.J. also testified that she
overheard the second man who was in front say to the man
behind him, "Yo Butters, did you get that?" or
"Son, did you get that?" On cross-examination,
however, T.J. admitted that she was not sure about what was
said "five years ago" and she might have first
heard the nick name (Butter) from others who were talking
about the shooting. T.J. did not provide a usable description
of the light-skinned male when she was interviewed by the
police in October 2007. The first time T.J. provided a
description of Bell was in January 2013 when the police
showed her a photo array containing Bell's photo.
detective Hennessey testified that his initial attempts to
speak to Russo at the hospital after the shooting were
unsuccessful, because Russo was unresponsive. By November
13th Russo was able to communicate by gestures, but still
could not speak. Hennessey already had a tip, from an
informant, that there was talk in the neighborhood that Bell
and Bruno were involved in the shooting. Consequently on
November 14th, Hennessey brought two photo arrays with him to
the hospital. One array contained Bell's photo; the other
contained Bruno's photo. Through a series of gestures,
Russo was able to identify both Bell and Bruno in the photos
and further convey that neither of them had a gun at the time
of the shootings.
November 16th, Hennessey located Bruno, who was brought to
the precinct for questioning. During an "interview"
that lasted 17 hours, Bruno provided a written and videotaped
statement. Bruno's written and recorded statements were
introduced in evidence. Insofar as ...