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This case was adjourned for conversion.

In January 2011, the defendant was arraigned and charged with one count each of: Assault In The Third Degree, Criminal Obstruction Of Breathing Or Blood Circulation, Attempted Assault In The Third Degree, and Harassment In The Second Degree

A Kings County Criminal lawyer said that at arraignment, since the People did not have the supporting deposition of the complainant, the court deemed that the accusatory instrument had not been converted into an information. Accordingly, the case was adjourned for conversion.

Off calendar, the People served and filed a superseding information charging the defendant with one count each of attempted assault in the third degree, menacing in the third degree, criminal obstruction of breathing or blood circulation, and harassment in the second degree.
On the adjourned date, defense counsel in oral argument before the court, alleged the superseding complaint that was filed off calendar, was facially insufficient because it was not accompanied by the supporting deposition of the complainant. Therefore, defense argued that it remained an unconverted complaint. On the same date, the People asked the court to set a motion practice schedule in response to defense counsel’s argument. The case was adjourned for conversion.

Thereafter, the court granted the People’s request for motion practice and allowed the People to submit a notice of motion in support of its argument that the accusatory instrument was facially sufficient. A motion schedule was set and was adjourned thereafter for decision.
The People served and filed the instant motion, asking the court to deem the accusatory instrument facially sufficient on its face and not to dismiss the accusatory instrument as facially defective. Thereafter, defendant served and filed a reply to the People’s motion seeking to hold the accusatory instrument facially sufficient.

There was no decision and the case was adjourned again for decision. Toward that end, this decision is limited to the questions raised by the People’s motion for facially sufficiency, namely, (1) whether the above-mentioned superseding complaint qualifies as a jurisdictionally sufficient information based on the complainant’s excited utterance, (2) if so, whether the statements contained in the factual portion of the superceding complaint satisfy the elements of an excited utterance, and (3) if the court accepts the superceding information, have the People declared their readiness for trial within the time limitation set forth in CPL 30.30 [1][b].
The superseding accusatory instrument, alleges, in pertinent part, that in January 2011, a Police Officer responded to a radio run for a family dispute. According to the accusatory instrument, the Officer arrived at the location within a few minutes and observed a female individual, later known to the deponent as the complainant, standing outside in the cold without a coat on, wearing socks without shoes on.

Deponent further observed complainant, crying, upset, afraid, hysterical and in this emotional demeanor, the complainant stated in a screaming, crying voice that defendant choked her. The deponent further alleges that complainant stated she could not breathe so she then punched the defendant to get him off of her. The complaint further alleges that complainant stated she had to leave and ran out of the apartment leaving the defendant at the apartment.

The superseding information further stated that the deponent escorted complainant, to the above mentioned location which was a block and a half away.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. An information which fails to satisfy these requirements is jurisdictionally defective.

The People first contend that the superseding accusatory instrument is an information because it contains admissible hearsay in compliance with the requirements of CPL 100.15 and 100.40. The People’s next argue that an excited utterance is admissible hearsay and may serve as a basis to corroborate a complaint in the absence of a supporting deposition. The People further argue that the complainant’s statement to the deponent qualify as an excited utterance exception to the hearsay rule.

Hearsay is defined as an out-of-court statement during the course of trial that is offered to prove the truth of the matter asserted in the statement. If evidence is hearsay, and no exception to the rule is applicable, the evidence must be excluded upon appropriate objection to its admission. The reason for the rule is to allow a witness who testifies at trial to a fact to be crossed-examined for the purpose of determining what weight, if any, the testimony should be given. If the testimony is hearsay, then no such opportunity to cross-examine exist.
Where the mere fact exist that a statement was made, as distinguished from its truth or falsity, is relevant upon trial, evidence that such statement was made is not hearsay, and the hearsay rule does not apply because the statement is not offered for the truth of the fact asserted in the statement. Such a statement is sometimes referred to as an “apparent exception” to the hearsay rule. Typically, the statement is relevant simply because it was made, without regard to its truth or falsity, thus, permitting it to be used to for some other purpose. Traditionally, to show evidence of an inconsistent statement to impeach the credibility of a witness.

In a case law, the court held that the term “nonhearsay” as defined in CPL 100.40 has generally been construed to mean any evidence that would be admissible at trial. The only “facts” given in this information to support the essential elements of the crime are the complainant’s alleged statements to the deponent. In following the court’s decision, these statements are hearsay, but they would be admissible as an excited utterance exception to the hearsay rule.
An excited utterance, is a statement made contemporaneously or immediately after a startling event. Underlying this exception is the assumption that a person under the influence of the excitement of an external startling event will lack the reflective capacity essential for fabrication, thereby making the spontaneous utterance trustworthy. Although there are no appellate court decisions upholding the use of an excited utterance as a method by which to convert a complaint into a valid information, there are, however, several lower court decisions that have upheld the use of an excited utterance as a means of converting a complaint in domestic violence cases.

To make this determination, the court must assess: 1) the nature of the event; 2) the amount of time that elapsed between the occurrence and the statement; 3) and the activities of the declarant between the event and the statement.

The lapse of time between the event and the statement is relevant only to the extent that it bears on the question of whether there was a significant opportunity to reflect and fabricate. In brief, there is no arbitrary limitation on the permissible time period between event and the excited utterance. Of course, the longer the span between event and statement increases the likelihood of fabrication. However, the key to the admissibility of an excited utterance exception is that the statement was made while the declarant was under the influence of the startling event to which the statement relates. It may be humanely impossible to determine how long it takes an individual with varying levels of sensitivities to overcome a startling event. So, an arbitrary cut-off of time may not be helpful when assessing whether the declarant was still under the influence of the startling event or was fabricating.

Turning to the instant case, the officer responded to a radio run of a domestic violence incident which allegedly occurred. The complaint does not state the precise time the officer arrived at the location with respect to the receipt of the call. It states that the officer arrived at the location within a few minutes.

Although there is no arbitrary limitation on the amount of allowable time between the startling event and the excited utterance, time is relevant to the extent that it allows the court to assess, based on the facts of each individual case, whether there was an opportunity to reflect and fabricate. In this case, since the accusatory instrument does not provide any time line between startling event and when the statements were made to the officer, the court here is unable to determine whether the declarant was under the influence of the startling event or whether there was time to fabricate. If the declarant was under the influence of the startling event at the time the statements were made to the deponent, then the statements would be an excited utterance hearsay exception. If the declarant had time to fabricate, then obviously the statement would not constitute an excited utterance and would thus be insufficient to convert the complaint into an information.

In a case law, the officers responded to a radio run of a domestic violence incident. The incident occurred 25 minutes before the call was received, and the officers arrived at the location within 30 minutes of the receipt of the call. The court noted that approximately 55 minutes passed from the beginning of the incident until the time of the statement. Although approximately 55 minutes had passed from event to statement, the court’s holding was not based on the time lapse but on the fact that there was no details as to what the declarant was doing during period. Therefore, the court held that it had no basis to establish whether the declarant was so upset when she made the statement that there was no chance to reflect and fabricate. The court seemed to hold that the time element although lengthy to some was not relevant if the declarant was still under the influence of the startling event.

In the instant case the officers responded within a few minutes, but the difference between 55 minutes and a few minutes is irrelevant since we do not know when the radio run was aired and when the officers arrived at the scene. In speculation, the radio run in this case could have been made immediately upon receiving the 911 call, or as in a case, it could have been made 25 minutes after the call was received. Since we do not have a time line and do not know what the declarant was doing in the interim of the event and statement, the court cannot assess if the declarant was under the influence of the event or had time to fabricate. Since, there are no factual allegations as to when that 911 call was received, the court finds that the declarant’s statements do not fall under the excited utterance exception to the hearsay rule.

The court recognizes that lack of physical injury in and of itself does not prove lack of domestic violence abuse. The court views incidents of domestic violence abuse very seriously. However, as stated above, the court is limited to the facts contained in the accusatory instrument itself.

In the instant case, the People have failed to allege facts sufficient to establish the critical time period between event and statement. Thus, the People have failed to show that the declarants’ statements were not the product of studied reflection or fabrication. The court is this case is constrained to find that the statements made to Police Officer by the complainant does not qualify as an excited utterance exception to the hearsay rule under the facts set forth in this accusatory instrument. Since the accusatory instrument in this case contains hearsay, it remains an unconverted complaint. Accordingly, the People’s motion seeking to deem the superseding complaint a valid information is denied.

Here in Stephen Bilkis and Associates, we want to help our clients with all diligence and excellence. For your family problems, contact our Kings County Family lawyers to receive a competent advice. For criminal cases, our Kings County Criminal attorneys are very willing to help you file a criminal case in court against the ones who abused your rights.

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