Published on:

People v. Alejandro, 70 NY2d 133

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2007 NY Slip Op 51947(U)
PEOPLE OF THE STATE OF NEW YORK
v.
JEMEL VICKERS, Defendant.
2007KN024895.
Criminal Court of the City of New York, Kings County.
Decided October 2, 2007.
The People were represented by: Assistant District Attorney Jennifer L. Feldman.
The defendant was represented by: Gregory Johnston, Esq., The Legal Aid Society.
MIRIAM CYRULNIK, J.

The criminal 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:

“Police Officer Robert D. Beierle … 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.”
The factual portion of the superseding information alleges that:

Deponent (Officer Beierle) states that at the above time and place, deponent observed a woman who identified herself as Kena Johnson in an excited state in that she was flagging down deponent for help, screaming, and had watery eyes at that time, and that Kena Johnson stated to deponent that the defendant did strangle Kena Johnson around the neck and did punch Kena Johnson about the face.

The deponent further states that deponent observed Kena Johnson with a swollen neck, red marks to the neck, and a laceration and swelling to Kena Johnson’s lip.

To date, no supporting deposition from the complainant has been filed.
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The Parties’ Contentions

The criminal defendant contends that the accusatory instrument is facially insufficient because the statements made by the complainant to Police Officer Beierle 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 assault 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.

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 Officer Beierle 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.
Law

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 (CPL 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]); (2) factual allegations in the information and supporting deposition that provide reasonable cause to believe that the defendant committed the crimes charged (CPL 100.40 [1][b]); and (3) non-hearsay allegations which establish, if true, every element of the crimes charged. (CPL 100.40[1][c]; People v. Alejandro, 70 NY2d 133 [1987]). Mere conclusory allegations will not suffice. People v. Dumas, supra. A purported information which fails to satisfy these requirements is facially defective. People v. Alejandro, supra at 139.

In reviewing an accusatory instrument for facial sufficiency, “[s]o long as the factual allegations of an 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.” People v. Casey, 95 NY2d 354, 360 (2000). 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. See, People v. Henderson, 92 NY2d 677, 680 (1999).

“[T]he non-hearsay’ required in CPL 100.40 has generally been construed to mean any evidence that would be admissible at trial (citations omitted).” People v. Alvarez, 141 Misc 2d 686, 688 (Crim Ct, NY County 1988). The Alvarez court observed that “… not allowing admissible hearsay to form the factual basis of a 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.” Id, citing Matter of Rodney J., 108 AD2d 307, 311 (1st Dept 1985).

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.” People v. Serna, NYLJ, November 17, 2003, at 19, col.

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1 (Crim Ct, Kings County, Cyrulnik, J.), quoting People v. Solomon, 2002 NY Slip Op. 50712 (U) (Crim Ct, Kings County 2002). See also, People v. Naul, 3 Misc 3d 1101(A) (Crim Ct, Queens County 2004); People v. Vizcarrondo, 2003 NY Slip Op. 50600(U) (Crim Ct, Kings County 2003); People v. Foster, 190 Misc 2d 625, 628 (Crim Ct, Kings County 2002); People v. Swinger, 180 Misc 2d 344 (Crim Ct, NY County 1998); see generally, Using Excited Utterances to Prosecute Domestic Violence in New York: The Door Opens Wide, or Just a Crack?, 8 Cardozo Women’s L J 171 (2002).

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 (citations omitted)” (People v. Vasquez, 88 NY2d 561, 574 [1996]) is a recognized hearsay exception. People v. Johnson, 1 NY3d 302, 306 (2003). 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.” People v. Solomon, supra, quoting Prince, Richardson on Evidence §8-605 (Farrell 11th ed). “The criminal 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.” People v. Edwards, 47 NY2d 493, 497 (1979); see also People v. Johnson, supra at p. 306; People v. Vasquez, supra at p. 579.

For example, in People v. Solomon, supra, the superseding information alleged that the arresting officer responded to a 911 call which had been placed at approximately 11:00 pm, and that upon receiving a radio transmission of a domestic dispute in progress he arrived at the scene within 5 minutes. The complainant, speaking loudly and quickly, informed the officer that the defendant had smacked her in the face and punched her in the head. The officer observed that the complainant was shaking, her eyes were tearing and she was in an excited state. He further observed that her lips were bruised and bleeding.

The court held that the complainant’s statements constituted an excited utterance, concluding that the injury allegedly caused by the criminal 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. Id, at 6; see also, People v. Foster, supra at 631 (10 minute interval between the arresting officer’s receipt of the 911 call and his arrival at the scene would not likely afford the complainant an opportunity to fabricate); compare, People v. Naul, supra (55 minute interval was too long to automatically preclude possibility of 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 in People v. Serna, supra, is more directly on point. The accusatory instrument in Serna 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
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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 Officer Beierle was flagged down by Kena Johnson. Ms. Johnson’s 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 Officer Beierle 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 Kena Johnson’s 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 (PL §§110/120.00). 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. People v. Steinberg, 79 NY2d 673, 682 (1992); People v. Bracey, 41 NY2d 296, 301 (1977). 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.

This constitutes the decision and order of the court.

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