Opinion
2007KN005611.
Decided March 17, 2008.
Assistant District Attorney Robert Kaftal, The People were represented by.
Luanne Muller, Esq., The Legal Aid Society, The defendant was represented by.
The defendant moves to dismiss the instant docket as facially insufficient and for failure of the People to have afforded him a speedy trial pursuant to CPL 30.30. The People oppose.
PROCEDURAL HISTORY
On November 1, 2007, the court issued a decision finding a superseding information filed by the People to be facially insufficient but granting them leave to amend or supersede again within the remaining speedy trial period. The People filed a second superseding instrument on November 15, 2007. The second superseding instrument contained a new version of the complaint, along with certified hospital and medical records for the complainant. On December 31, 2007, the defendant filed another motion to dismiss, and on February 4, 2008, the People filed their response.
While the People dated their statement of readiness November 14, 2007, the actual date it was served upon the court, evidenced by the stamp on the document, is November 15, 2007. Additionally, the People refer to the later date in their motion as the date of service. The court shall consider November 15 as the applicable date.
FACIAL SUFFICIENCY
While the defendant addresses his arguments on facial sufficiency solely to the second superseding instrument, the People additionally argue that the original superseding instrument was facially sufficient, despite the court's earlier ruling. The court reaffirms its November 1, 2007 decision that the first superseding instrument was insufficient, and the People's motion to reargue is denied.
The court now looks to the second superseding information filed by the People in their attempt to cure the lack of non-hearsay allegations present in the first one. The only scrutiny of the original superseding instrument will be to the extent of the changes made by the People in their second filing.
The accusatory portion of the second superseding instrument alleges, in pertinent part, that on or about January 19, 2007, at approximately 10:20 p.m. at 53 Bay 25th Street, County of Kings, the defendant committed the crimes of Attempted Assault in the Third Degree (PL 110/120.00 [1]), Menacing in the Third Degree (PL 120.15), and Harassment in the Second Degree (PL 240.26 [1]).
The factual portion of the superseding instrument alleges that:
Deponent is informed by Police Officer Tatiana Rivera . . . that, at the above time and place, the informant received a radio transmission of an assault in progress and that within five minutes the informant arrived at the above location and observed Julie Mushailova crying and sniffling, with a dark mark across the bridge of Mushailova's nose and with [sic] Mushailova's nose that [sic] appeared to be crooked, and Mushailova kept touching her nose and asking the informant to check Mushailova's nose because Mushailova was concerned that her nose could have been broken.
Deponent is further informed by the informant that in that state, Julie Mushailova told the informant that the defendant, [sic] had headbutted Mushailova.
Deponent is further informed by the certified medical records of Coney Island Hospital that on January 19, 2007 Julie Mushailova was treated at said hospital for a contusion to the bridge of the nose and the nose pointing toward the left side, with diagnosed suspicion of fracture to the nasal bone and recommended follow up with a plastic surgeon.
Deponent is further informed by certified medical records of Victory Memorial Hospital that Julie Mushailova underwent a surgery at said hospital for traumatic fracture of the nose with a shift of the nasal bone.
In its previous decision, this court discussed at length the requirements for a facially sufficient information. While they need not be set out again, a restatement of the issues involving excited utterances bears repeating. In deciding whether a statement is an excited utterance, "[t]he 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 , 1 NY3d 302 , 306 (2003). Furthermore, the "spontaneity of the declarant's statement is measured by the surrounding facts and cannot simply be determined by reference to the amount of time that transpired between the event and the statement." People v. Nieves, 67 NY2d 125, 135 (1986); see also People v. Fratello, 92 NY2d 565 (1998).
Additionally, an excited utterance may be determined based upon the "physical, psychological and emotional condition of the declarant and whether it can be reasonably concluded that the remarks were not made under the impetus of studied reflection.'" People v. Brown, 70 NY2d 513, 521 (1987), citing People v. Edwards, supra at 497. See also People v. Cotto, 92 NY2d 68, 79 (1998), revd on other grounds, 331 F. 3d (2d Cir 2003) (considering similar factors, such as "great pain," "physical shock and trauma," and extraordinary stress" in assessing the circumstances surrounding the statement); People v. Hasan , 17 AD3d 482 (2nd Dept 2005). Therefore, even if the events transpiring between the time of the incident and that of the statement are unknown, the circumstances surrounding the condition of the declarant at the time of the statement may be reviewed.
In the case at bar, this court has considered the surrounding facts and circumstances, the additional information in the second superseding instrument, the complainant's appearance, the severity of her injuries, the amount of time elapsed since the incident, and the content of the statement itself, and concludes that the People remain unable to establish that the complainant's statement is an excited utterance.
The People argue that the complainant's demeanor when speaking with the police officer was demonstrative of her stunned state, and that she need not be literally "excited" as the word is commonly known. Citing People v. Brown, supra, they assert that a declarant is not required to scream or yell or be out of control, and that a "quiet and withdrawn" reaction is within the realm of appropriate responses to a startling event (People's Affirmation in Opposition, p. 14). While it is true that perhaps not every complainant screams out or appears visibly shaken immediately following a traumatic event, courts have recognized that the more extreme a reaction displayed by the declarant in response to the startling situation, the more likely it will be ruled an excited utterance.
The complainant in this case was not bleeding or seriously injured. Instead, she exhibited only a dark mark to her nose, which appeared crooked. The complainant was touching her nose and asking the police officer to check it because it might have been broken. The officer observed only that she was crying and sniffling, not yelling, screaming, or visibly disturbed in any other way. Compare, People v. Mitchell , 46 AD3d 480 (1st Dept 2007) (complainant was "screaming," "hysterical," and "gasping for air"). Unlike People v. Brown, supra, where the complainant was so weakened and injured that he died as a result of his gunshot wounds, nothing nearly so traumatic occurred to place the instant complainant in a similar state of solemnity, akin to quiet reflection. Compare, People v. Foster, 190 Misc 2d 625 (Crim Ct, Kings County) (where the complainant was stabbed in the head with a screwdriver, that level of injury could have understandably led to a more reflective, stunned state). When the injuries suffered by a complainant are considerably less severe, as is the case here, the complainant's reaction and emotional and physical states must be proportionately higher in order to meet the threshold of an excited utterance standard. The People even call attention to the fact that the complainant was "aware of her injury" and it was the "focus of her thoughts." (People's Affirmation in Opposition, p. 16) This belies the reasoning behind, and the need for, the excited utterance doctrine. When a declarant is rendered so startled and frantic by a situation, there is no time or capacity for reasoned thought, thus lessening the chance that the out of court statement, which is being offered for its truth, would be prone to calculated deception. See People v. Edwards, supra.
Additionally, unlike the Vickers case cited by the People, where the screaming, sobbing complainant actually flagged down the police officer prior to making her statement 20 minutes after the incident, the officer here responded to a radio transmission. See People v. Vickers, 17 Misc 3d 1113A (Crim Ct, Kings County 2007). While it is significant that the police responded so promptly to the location, within five minutes after hearing the radio transmission, it is not, by itself, determinative of the outcome. See People v. White, NYLJ, July 30, 1999, at 26, col. 4 (Crim Ct, NY County 1999) (finding no excited utterance when the police responded to only a radio run, and lacked the reliability found in a 911 call); People v. Naul, 3 Misc 3d 1101A (Crim Ct, Queens County 2004); compare People. v. Vizcarrondo, 2003 NY Slip Op 50600(U) (Crim Ct, Kings County) (finding an excited utterance after officer responded within five minutes of hearing a radio transmission to observe an hysterical complainant).
The People then reference and append the medical records from two hospitals, Coney Island Hospital, where the complainant was apparently treated immediately following the incident, and Victory Memorial Hospital, for a surgery which occurred at a later time. The complaint refers to a "contusion to the bridge of the nose" and that the complainant's nose was "pointing toward the left side," all leading to a "diagnosed suspicion of fracture to the nasal bone." The subsequent surgery was for the "traumatic fracture of the nose with a shift of the nasal bone." The People submit that they can use these records as supporting depositions to convert the docket (Affirmation in Opposition, p. 19, citing People v. Swinger, 180 Misc 2d 344 [Crim Ct, NY County 1998]). However, the complaint itself indicates that the People seek to use the records to show the injuries to the complainant, rather than any purported statements to medical personnel. Therefore, while the records may well be admissible under the business records exception to the hearsay rule ( id. at 350), they do not serve to convert any charges herein.
It appears from the complaint and records that the complainant's nose became crooked and required surgery as a result of the incident. However, despite the newly attached hospital records, there are very few new details revealed about the injury itself in the second superseding instrument, only those pertaining to the complainant's reaction to the condition of her nose. There is no additional injury alleged, nor new allegations of bleeding, bruising, or more severe pain suffered by the complainant, only that the complainant drew the police officer's attention to her nose out of concern for its condition. Therefore, the additions in the latest filing have not shown the complainant's statement to be an excited utterance.
Even though the allegations, including those in hospital records, may in fact have satisfied the prima facie requirement of the charges of Attempted Assault in the Third Degree, Menacing in the Third Degree, and Harassment in the Second Degree, that issue need not be reached by this court. The People have not met their threshold burden of establishing an excited utterance hearsay exception to allow them to proceed using only the superseding accusatory instrument with the police officer's statement. See People v. Alejandro, supra; People v. Naul, supra. Considering the circumstances surrounding the complainant's statement, it has not been shown that it was a product of spontaneity made by the complainant without time or opportunity to reflect after the occurrence of the startling event. People v. Edwards, supra.
SPEEDY TRIAL
Finally, the defendant argues that the speedy trial time has expired and therefore the case should be dismissed. The defendant claims that because the second superseding information filed by the People was insufficient to cure the defects from the first information, it should not stop the speedy trial time, and the People should be charged accordingly with that time.
The People have not responded specifically to these arguments, except to say that as the accusatory instruments were facially sufficient at the time of their respective filings, they are within speedy trial guidelines, and ask for the restoration of time to earlier balances.
The People are to be charged with the 39 days between the arraignment on January 20, 2007, and the filing of the original superseding information, stopping the speedy trial clock on February 28, 2007, a fact the defendant concedes. See People v. Kendzia, 64 NY2d 331 (1985); see also People v. Cenat, 176 Misc 2d 39 (Crim Court, Kings County 1997). The People are then charged an additional 21 days, as they were not ready for trial on July 10, 2007, nor were they ready on August 20, 2007, when an additional 3 days are to be charged. Finally, between November 1, 2007 and November 15, 2007, 14 days passed before the People filed their second superseding instrument, and they should be charged with those days as well. Thus, the total amount of time chargeable to the People to date is 77 days.
See Footnote 1.
The defendant claims that People should be charged with 19 days of additional time until the motion schedule was set on December 4, 2007, for a total of 96 days, exceeding the permissible pre-trial period applicable in this case. However, defendant's argument is without merit, even by his own accord. The defendant acknowledges that the speedy trial clock was stopped at the filing of the first superseding information on February 28, 2007, even though that instrument was later held to be facially insufficient. Nevertheless, the defendant now asks the court to continue running the remaining time against the People because of the potential determination that the second superseding information is insufficient as well. Regardless of the outcome decided above, if this or any other court began the practice of charging the People retroactively with the time after the filing of a superseding information because that instrument turned out to be insufficient, instead of giving them leave to amend their defective accusatory instrument in the remaining time, surely no complaint would ever proceed effectively against any defendant within due time again. This court must accept that the People served and filed the superseding information in good faith. The fact that this court is now ruling that it was not facially sufficient should not be used against the People to their detriment. Accordingly, the motion to dismiss on speedy trial grounds is denied.
Finally, as before, while the charges are facially insufficient as an information, they remain sufficient as a complaint. See, CPL 100.40, 100.15. Dismissal would not be an appropriate remedy where, as here, the People can amend or supersede. See, CPL 170.35, 140.45, 100.50; People v. Gore, 143 Misc 2d 106 (Crim Ct, Kings County 1989); People v. Cobb , 2 Misc 3d 237, 244-246 (Crim Ct, Queens County 2003). Accordingly, the Court denies the motion to dismiss at this time and grants the People leave to move to amend or otherwise cure the defects in this charge by filing a third superseding information within the remainder of the speedy trial period. See, People v. Gore, supra; People v. Cobb, supra.
This constitutes the decision and order of the court. Dated: March 17, 2008