Opinion
No. 2014NY045530.
10-29-2014
The PEOPLE of the State of New York v. Ryan IZZO, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Konstantin Yelisavetskiy, for the People. Crotty and Saland, by Elizabeth Crotty, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Konstantin Yelisavetskiy, for the People.
Crotty and Saland, by Elizabeth Crotty, Esq., for the Defendant.
Opinion
STEVEN M. STATSINGER, J.
Can medical records in which the complainant in a domestic violence case identifies the defendant as the person who attacked her serve to convert a Misdemeanor Complaint into an Information? The law is clear that they can. Nevertheless, here, although the case was converted within 90 days, the People did not answer “ready” for trial within 90 days. Accordingly, since there are 96 chargeable days, defendant's motion to dismiss pursuant to CPL § 30.30 is GRANTED. Sealing is stayed for 30 days.
I. FACTUAL BACKGROUND
A. The Allegations
On or about June 11, 2014, the complainant reported to a police officer that the defendant, her boyfriend, struck her in the face several times with his fists. When she made the report, she was agitated and crying, and the officer saw that her face was swollen, bruised and red. She reported experiencing substantial pain to her face.
B. Legal Proceedings
Defendant was arraigned on June 13, 2014, on a Misdemeanor Complaint charging him with Assault in the Third Degree, in violation of Penal Law § 120.00(1), Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(4), Attempted Assault in the Second Degree, in violation of Penal Law §§ 110/120.00(1), and Harassment in the Second Degree, in violation of Penal Law § 240.26(1).
Defendant was released on his own recognizance, and the case was adjourned to July 10, 2014, for conversion. The People did not have a Supporting Deposition on July 10, and the Court rejected their request that it deem the Misdemeanor Complaint an Information by finding that the statements attributed to the complainant therein were excited utterances. The Court adjourned the case to September 17, 2014, for conversion. By then, some 96 days would have elapsed since defendant's arraignment. The Court correctly noted that the case would likely be past 30.30 on September 17.
On September 3, 2014, 82 days after arraignment, the People filed, off-calendar, a Superseding Information (“SSI”), and the complainant's medical records. However, the People did not file a Certificate of Readiness at that time.
On September 17, 2014, defendant moved to dismiss pursuant to CPL § 30.30(1)(b). The People opposed the motion. The Court heard oral argument and reserved decision. The matter has been sub judice since then.
II. THE ACCUSATORY INSTRUMENTS
A. The Misdemeanor Complaint
The Misdemeanor Complaint, sworn out by Police Officer Carlise Almonte, provides that, on or about June 11, 2014:
[The complainant] ... walked into my police precinct and filed a report of the following incident. While [the complainant] informed me of the events detailed below, [she] was in a highly emotional state. Specifically I observed that [she] was crying, her eyes were red, she repeatedly wiped tears [a]way from her eyes and her cheeks, she was breathing heavily, and experiencing shortness of breath in that she would stop her sentences to catch her breath. I also observed significant swelling, bruising, and redness to [her] face.
While in this emotional state, [she] told me that the defendant struck [her] about her face multiple times with the defendant's closed fists, causing swelling, bruising and substantial pain to [her] face.
B. The Superseding Information
The Superseding Information, sworn out by Police Officer Anthony Sinacori on September 2, 2014, provided that:
I have reviewed medical records from Mount Sinai Hospital for [the complainant] from June 11, 2014. These medical records state that [the complainant] reported that [her] boyfriend bit [her] on the arm and that [she] has an abrasion on her arm. The medical records also state that [she] reported that her boyfriend struck her multiple times in the face with a closed fist. The medical records state that [she] has abrasions and bruising to her face.
The defendant stated in my presence that he is [the complainant's] boyfriend.
C. The Medical Records
The medical records, filed along with the Superseding Information contain, inter alia, the following statements attributed to the complainant describing the nature of her injuries, how they were caused, and who caused them.
1. Under the heading “ED [sic, for Emergency Department] Triage Notes”:
Pt c/o [sic, probably Patient complains of] being assaulted by her boyfriend, pt says he woke her up from her sleep. Bite on the right side of her face, pt has an abrasion to her left arm. Pt decline [sic] to have police called, or social worker or savi [sic, for sexual assault and violence intervention]. Pt wants to return to her apartment to collect her purse.
2. Under the heading “Assessment/Plan”:
[Redacted] here after being assaulted today by her boyfriend. Reports was sleeping in her bed in the apartment she shares with her boyfriend, he came home from a work function drunk and attacked her. She states she attempted to lock him out of her bedroom but he became increasingly angry, broke the door in and hit her with a closed fist multiple times across her face, also pushed her and was throwing her around, fell/tumbled backwards over a couch. Reports he bit her face, was scratching her. Has bruising to face and elbow also with shoulder pain. [Redacted] Was not sexually assaulted. No weapons used. No children in the house. No guns in the house. No neck or back pain. No shortness of breath. + facial pain. Had no LOC [sic]. NO [sic] vision changes, dizziness, headache, nausea, vomiting, confusion.
3. Under the Heading “Attending Notes”:
[Redacted] Here after assaulted by her boy friend with whom she lives. She was at work event earlier in the night with her colleagues. She did have wine at the event. She was asleep when her boyfriend came home drunk. He hit her several times in the face with a closed fist, bit her R [sic, for right] cheek, and threw her into the couch. She tumbled over the couch. She remembers everything. She has alcohol on her breath but is not grossly intoxicated.
4. Under the Heading “ED Nursing Notes”:
Pt states she was out at a work function this evening, reports having a few glasses of wine, came home and went to bed. Pt states her BF [sic, for boyfriend] then came home from a work function, visibly intoxicated, became angered that she would not stay awake to speak with him at which point he attacked her. Pt shares she attempted to lock BF out of the bedroom, however, he broke the door in, hit her with a closed fist (multiple times) in the face, pulled her hair and repeatedly pushed her, eventually leading to pt falling backwards over their couch. Pt states after fall, BF bit her face, continued to pull her hair and was scratching her. Pt shares she was able to eventually get away, ran out the front door, hailed a cab and came to MSH [sic, for Mount Sinai Hospital].
The records also reveal that the hospital arranged for a social worker to speak with the complainant to discuss a safe way of returning home to retrieve her belongings, and for a sexual assault and violence intervention specialist to follow up with her.
The records are accompanied by a certification dated August 28, 2014.
II. DISCUSSION
Defendant is charged with “at least one ... misdemeanor punishable by a sentence of imprisonment of more than three months.” CPL § 30.30(1)(b). Thus, his motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. Id. Since 96 days elapsed without the People announcing their readiness for trial, defendant's motion to dismiss pursuant to CPL § 30.30 is granted.
A. The Superseding Information and Medical Records Constituted a Valid Information
An Information must contain “[n]on-hearsay allegations ... [that] establish, if true, every element of the offense charged and the defendant's commission thereof.” CPL 100.40(1)(c). While ordinarily this requires either a first-party instrument or a third-party instrument that is corroborated by a Supporting Deposition, see CPL § 100.20, it is beyond dispute that a statement that meets the criteria for an exception to the hearsay rule, such that it would be admissible at trial, can be a “non-hearsay” allegation in a pleading, thus satisfying CPL § 100. 40(1)(c). People v. Previl, 21 Misc.3d 914, 864 N.Y.S.2d 906 (Crim. Ct. Kings County 2008) (business records); People v. Leyva, 19 Misc.3d 498, 856 N.Y.S.2d 452 (Crim. Ct. N.Y. County 2008) (declaration against penal interest); People v. Heller, 80 Misc.2d 160, 689 N.Y.S.2d 327 (Crim. Ct. N.Y. County 1998) (admission of party opponent); People v. Reyes, 43 Misc.3d 1225(A), 2014 WL 2438432 (Crim. Ct. N.Y. County 2014) (excited utterance).
New York State recognizes a business records exception to the hearsay rule. CPLR 45218(a). Hospital records have long been included within the business records exception, as long as the portion of the record that is admitted is germane to the patient's diagnosis or treatment. See, e.g., Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417 (1955) (“the only memoranda that may be regarded as within the section's compass are those reflecting acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects of ... [the particular patient's] hospitalization.”) (internal quotation marks omitted; alterations in original).
The admission of medical records is generally uncontroversial when those records are proffered to describe the cause or nature of a person's injuries or the necessary treatment. People v. Ortega, 15 NY3d 610, 620, 942 N.E.2d 210, 216, 917 N.Y.S.2d 1, 7 (2010). However, given this limitation, the portions of medical records that identify the person who caused the patient's injuries are not ordinarily admissible under this rule. E.g., Howard v. McGinnis, 632 F.Supp.2d 253, 270–71 (W.D.NY 2009). Nevertheless, there are some cases where identifying the perpetrator is relevant to the patient's treatment. In cases of domestic violence, it is “relevant for purposes of diagnosis and treatment that complainant's assault was at the hands of a ... boyfriend.” Ortega, 15 NY3d at 619, 942 N.E.2d at 216, 917 N.Y.S.2d at 6.
In addition to physical injuries, a victim of domestic violence may have a whole host of other issues to confront, including psychological and trauma issues that are appropriately part of medical treatment. Developing a safety plan, including referral to a shelter where appropriate, and dispensing information about domestic violence and necessary social services can be an important part of the patient's treatment.
Id. See also, People v. Pham, 118 AD3d 1159, 987 N.Y.S.2d 687 (3d Dept.2014) (“Details of the abuse, even including the perpetrator's identity, may be relevant to diagnosis and treatment when the assault occurs within a domestic violence relationship because the medical provider must consider the victim's safety when creating a discharge plan and gauging the patient's psychological needs.”)
It follows that, at least in a domestic violence case, medical records that identify the victim's family member as the perpetrator, if relevant to the victim's treatment plan, are not hearsay. Indeed, in People v. Swinger, 180 Misc.2d 344, 689 N.Y.S.2d 336 (Crim. Ct. N.Y. Co 1998), the court held that medical records in which a victim of domestic violence identified her husband as the perpetrator were admissible under the business records exception, and hence constituted nonhearsay allegations that rendered the Information facially sufficient.
The same is true here. The medical records proffered by the People reveal that the complainant did indeed identify the defendant as the person who caused her injuries. They also reveal that this information was material to the complainant's treatment, as the hospital used this information to develop a plan for the complainant's emotional well being and physical safety.Accordingly, the combination of the S.S.I. and the complainant's medical records meet the definition of an Information contained in CPL § 100.40(1)(c), and the People did indeed file an Information on September 3, 2014, some 82 days after arraignment.
B. The People Did Not Answer “Ready” for Trial Within 90 days
Nevertheless, even though the People filed an Information within 90 days of arraignment, the case must still be dismissed. CPL § 30.30(1)(b) requires the People to answer ready within 90 days of arraignment, not merely to file an Information within 90 days of arraignment: “Conversion to an information does not stop the clock; answering ready for trial does.” People v. Woods, 21 Misc.3d 1105(A) at *2, 873 N.Y.S.2d 236 (Crim. Ct. N.Y. County 2008). See also People v. Williams, 86 Misc.2d 47, 715 N.Y.S.2d 300 (Crim Ct N.Y. County 2000) (same). Here, while the documents the People filed on September 3, 2014, constituted a valid Information, those documents were not accompanied by a statement of readiness, and no statement of readiness was filed within 90 days of arraignment. Accordingly, since the speedy trial clock did not stop until defendant moved to dismiss, see CPL § 30.30(4)(a), by which time 96 days had elapsed, the case must be dismissed.
IV. CONCLUSION
Since 96 days of pre-readiness speedy trial time must be charged to the People, defendant's motion to dismiss is granted. Sealing is stayed for 30 days.
This constitutes the Decision and Order of the Court.