Argued November 15, 2006; decided December 19, 2006

People v Bradley, 22 AD3d 33, affirmed.

Smith, J.

We hold that defendant's right of confrontation was not violated by the admission into evidence of a statement made in response to a question from a police officer, where the officer's evident reason for asking the question was to deal with an emergency. [*2]

Defendant was convicted of aggravated criminal contempt, criminal contempt in the first degree and assault in the third degree. The People claimed, and the jury found, that defendant had physically attacked his girlfriend, Debbie Dixon, at a time when two orders of protection directing him to stay away from Dixon were in force.

The People's only witness at trial was Officer Steven Mayfield. Mayfield testified that, in response to a 911 call, he arrived{**8 NY3d at 126} at the door of an apartment and was met there by Dixon, who was visibly shaken, had blood on her face and clothing, was bleeding profusely from one hand, and walked with a noticeable limp. Mayfield testified: "I asked her what happened, and she stated her boyfriend threw her through a glass door." Mayfield entered the apartment, found defendant there, and observed a glass door with several panes broken out of it and glass on the floor.

Because Dixon was unavailable at trial, the trial court allowed her statement, as recounted by Mayfield, into evidence as an "excited utterance." Defendant appealed from his conviction, contending that the statement was admitted in violation of his Confrontation Clause rights. The Appellate Division affirmed, and we now affirm.

The Sixth Amendment to the United States Constitution protects the right of every defendant in a criminal case "to be confronted with the witnesses against him." Article I, section 6 of the New York Constitution also gives a right of confrontation, in virtually identical language. Our interpretation of the federal Confrontation Clause is controlled by the Supreme Court's recent decisions in Crawford v Washington (541 US 36 [2004]) and Davis v Washington (547 US —, 126 S Ct 2266 [2006]). Defendant here relies on both the federal and state Confrontation Clauses, but does not suggest that the two be interpreted differently, and we therefore accept the holdings of Crawford and Davis as the basis for our decision under both constitutions.

It is clear from Crawford and Davis that the admission of a statement made out of court does not violate a defendant's Confrontation Clause rights unless the out-of-court statement is "testimonial" (see Davis, 547 US at —, 126 S Ct at 2273). The Confrontation Clause, the Court said in Crawford, "applies to 'witnesses' against the accused—in other words, those who 'bear testimony' " (541 US at 51 [citation omitted]). In Crawford, the Supreme Court made clear that a "formal statement to government officers" would qualify as testimonial, while a "casual remark to an acquaintance" would not, but did not adopt a definition of "testimonial" (id.). Crawford involved a witness's "recorded statement," given at a police station after Miranda warnings, "in response to structured police questioning"; the Court found that statement would qualify as testimonial "under any conceivable definition" (id. at 53 n 4).{**8 NY3d at 127} [*3]

Davis and its companion case, Hammon v Indiana, presented closer questions, and required the Court to define "testimonial" with more precision. Davis involved statements made during a 911 call by a victim of domestic violence who, in response to questions from the 911 operator, described an assault upon her as it was happening. Hammon involved a statement by the defendant's wife taken after officers had come to the couple's home; finding the situation calm when they arrived, the officers took the wife into a separate room, kept her husband away from her, and got a detailed account of what her husband had done. The Supreme Court held that the statements in Davis were not testimonial, but that those in Hammon were. The Court explained its holdings as follows:

"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (547 US at —, 126 S Ct at 2273-2274.)

The facts of this case are between those in Davis and Hammon: Dixon was neither describing a present event as it occurred, nor responding to detailed questioning in a calm, secure setting. But under the test the Supreme Court stated in Davis, Dixon's statement was clearly not testimonial. It was "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency." (547 US at —, 126 S Ct at 2273.)

When Mayfield, responding to a 911 call, arrived at Dixon's door and was met by an emotionally upset woman smeared with blood, his first concern could only be for her safety. His immediate task was to find out what had caused the injuries so that he could decide what, if any, action was necessary to prevent further harm. Asking Dixon "what happened" was a normal and appropriate way to begin that task, and the officer promptly entered the apartment, as an officer dealing with an emergency would be expected to do.

Defendant emphasizes that Mayfield's question to Dixon was in the past tense: He said "what happened?" not "what's happening?"{**8 NY3d at 128} From this, and from the fact that no attacker was in sight at the moment, defendant would have us infer, in the words of Davis, that "there [was] no . . . ongoing emergency, and that the primary purpose of the interrogation [was] to establish or prove past events . . . ." We do not find the inference a likely one. The officer's purpose in [*4]questioning Dixon is shown more persuasively by the facts that came to his attention—a 911 call, a distressed and injured woman—and by the action he took after Dixon answered his question—entering the apartment, without lingering to find out more detail—than by his choice of tense. Any responsible officer in Mayfield's situation would seek to assure Dixon's safety first, and investigate the crime second. Because Dixon's statement was made when the officer could reasonably have assumed, and apparently did assume, that he had an emergency to deal with, her statement was not testimonial under Crawford and Davis.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and Pigott concur.

Order affirmed.