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Defendant’s motion to dismiss the accusatory instrument for facial insufficiency is denied.

A Kings Criminal Lawyer said that, the defendant, charged with Attempted Assault in the Third Degree (PL §110/120.00[1]), moves to dismiss the superseding information pursuant to CPL 170.35(1)(a) for facial insufficiency. The People oppose. The accusatory portion of the superseding information alleges that, the Police Officer says that on or about April 2, 2007 at approximately 6:18 p.m. the defendant committed the offense(s) of PL 110/120.00(1) Attempted Assault in the Third Degree.”

A Kings Order of Protection Lawyer said that, the deponent states that at the above time and place, deponent observed a woman in an excited state in that she was flagging down deponent for help, screaming, and had watery eyes at that time, and that she stated to deponent that the defendant did strangle around the neck and did punch her about the face. The deponent further states that deponent observed her with a swollen neck, red marks to the neck, and a laceration and swelling to her lip. To date, no supporting deposition from the complainant has been filed.

A Kings Domestic Violence Lawyer said that, the defendant contends that the accusatory instrument is facially insufficient because the statements made by the complainant to the Police Officer do not fit within the excited utterance exception to the hearsay rule. Specifically, he contends that the accusatory instrument fails to allege when the assault occurred or what the complainant was doing in the interim between the assaults and when she flagged down the officer. Thus, he concludes, there are no facts presented for the court to determine whether the complainant had an opportunity to reflect or if she was excited due to the alleged assault itself.

A Kings Criminal Lawyer said that, the People contend that the complainant’s statements are excited utterances. They assert that the accusatory instrument does indeed set forth the time of the assault as “on or about April 2, 2007, at approximately 6:18 pm.” The People further note that the Officer observed the complainant in an excited state on that same date at approximately 6:18 pm. They argue that there is no arbitrary limitation on the time period that may elapse between the event and the excited statement, since the focus is not on the lapse of time between the two, but rather whether the declarant is still under the influence of excitement when the statement is made.

The issue in this case is whether defendant’s motion to dismiss the superseding information pursuant to CPL 170.35(1)(a) for facial insufficiency should ne granted.

To constitute a facially sufficient information, the accusatory instrument must contain (1) facts of an evidentiary nature which support or tend to support the crimes charged; (2) factual allegations in the information and supporting deposition that provide reasonable cause to believe that the defendant committed the crimes charged; and (3) non-hearsay allegations which establish, if true, every element of the crimes charged. Mere conclusory allegations will not suffice. Purported information which fails to satisfy these requirements is facially defective. In reviewing an accusatory instrument for facial sufficiency, “so long as the factual allegations of information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” the court should give it “a fair and not overly restrictive or technical reading.” The facts alleged in the accusatory instrument need not rise to the level of establishing guilt beyond a reasonable doubt. The prima facie case requirement in a pleading is not the same as the burden of proof required at trial.

“The non-hearsay’ required in CPL 100.40 has generally been construed to mean any evidence that would be admissible at trial. The court observed that not allowing admissible hearsay to form the factual basis of misdemeanor information presents the absurd result that the rules of evidence as applied to an information are more stringent than those applicable to trials and hearings. Cases addressing the non-hearsay requirement in some domestic violence cases have concluded that an excited utterance made by the complainant to a police officer/deponent, as an exception to the hearsay rule, may serve in lieu of a supporting deposition as the vehicle by which to convert a complaint to an information.

An excited utterance, “the product of the declarant’s exposure to a startling or upsetting event that is sufficiently powerful to render the observer’s normal reflective processes inoperative is a recognized hearsay exception. In determining if a statement is an excited utterance, “the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful.” “The court must assess not only the nature of the startling event and amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth.”

The court held that the complainant’s statements constituted an excited utterance, concluding that the injury allegedly caused by the defendant was the result of a startling event and that the less than five minute interval between the officer’s receipt of the 911 call and his arrival at the scene would have likely precluded any fabrication. The instant case, of course, involves a responding officer flagged down by the complainant as opposed to one who appears in response to a 911 call. This court’s 2003 ruling is more directly on point. The accusatory instrument alleged that the complainant flagged down the arresting officer at 7:20 pm and informed him that twenty minutes earlier the defendant had cursed at her, threatened her and smacked her in the face with an open hand. The officer observed that the complainant was crying, sobbing and in an excited state. He further observed that she had bruising and swelling about the eye and face. This court held that the complainant’s statements constituted an excited utterance, concluding that her injuries were the result of a startling or upsetting event and that the approximately twenty minute interval between the time of the incident and the time of the officer’s arrival did not provide her with a significant opportunity for fabrication.
In the case at bar, contrary to the defendant’s contention, a fair reading of the accusatory instrument suggests that the alleged incident occurred on April 2, 2007, at approximately 6:18 pm, as indicated in the accusatory portion. Moreover, in using the language “the above time and place,” the factual portion of the accusatory instrument clearly establishes that it was approximately 6:18 pm when the Officer was flagged down by the witness. Her injuries, including a swollen neck, red marks to the neck and a laceration and swelling to her lip, were clearly caused by a startling event, i.e, the defendant allegedly strangling her and punching her about the face. Since the officer happened upon the scene at or immediately after the time of the incident, the complainant was still under the stress of the event and did not have a significant opportunity for reflection and fabrication.

Consequently, this court finds that the complainant’s statements to the Officer constitute excited utterances. As such, they can be used in lieu of a supporting deposition to convert the docket to an information.

This court further finds that the victim statements establish, if true, every element of the crimes charged and defendant’s commission thereof. The sole allegation before the court is Attempted Assault in the Third Degree. As defined in PL § 110.00, “a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect commission of such crime.” It is well settled that intent may be inferred from conduct as well as surrounding circumstances. The factual allegations establish that the defendant’s alleged acts of strangling and punching the complainant make out the defendant’s intent to cause physical injury. Thus, the accusatory instrument demonstrates reasonable cause to believe that the defendant committed the crime of Attempted Assault in the Third Degree.

Accordingly, the defendant’s motion to dismiss the accusatory instrument for facial insufficiency is denied.

If you are a victim of assault or domestic violence, seek the representation of a Kings Order of Protection Attorney and Kings Domestic Violence Attorney at Stephen Bilkis and Associates in order to file your complaint.

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