Opinion
2011KN002632.
Decided September 8, 2011.
Office of Charles J. Hynes, Esq., District Attorney, Kings County, Brooklyn, New York, By: Melody Huang, Esq., FOR THE PEOPLE.
Brooklyn Defender Services, Brooklyn, New York, By: Amanda Scioscia, Esq., FOR THE DEFENDANT.
The People's motion to retain the charges is denied. The complainant's statement does not qualify as an excited utterance exception to the hearsay rule.
On January 12, 2011, the defendant, Joseph Valentine, was arraigned and charged with one count each of
PL 120.00(1)Assault In The Third Degree
PL 121.11(A)Criminal Obstruction Of Breathing Or Blood Circulation
PL 110/120.00(1)Attempted Assault In The Third Degree
PL 240.26(1)Harassment In The Second Degree
Procedural Background
At arraignment, since the People did not have the supporting deposition of the complainant, Shaquka Ingram, the court deemed that the accusatory instrument had not been converted into an information. Accordingly, tthe case was adjourned to April 11, 2011 for conversion.
Off calendar, on March 1, 2011, the People served and filed a superseding information charging the defendant with one count each of attempted assault in the third degree (PL 110/120.00[1]), menacing in the third degree (PL 120.15), criminal obstruction of breathing or blood circulation (PL 121.11[A]), and harassment in the second degree (PL 240.26).
On the adjourned date, April 11, 2011, defense counsel in oral argument before the court, alleged the superseding complaint that was filed off calendar on March 1, 2011, was facially insufficient because it was not accompanied by the supporting deposition of the complainant, Shaquka Ingram. 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 to May 3, 2011 for conversion/30.30.
On May 3, 2011, 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 the People's motion was due on May 24, 2011 and defense counsel's response was due on June 14, 2011. The case was adjourned to July 19, 2011 for decision.
On May 24, 2011, off calendar, the People served and filed the instant motion pursuant to CPL 100.15 and 100.40, asking the court to deem the accusatory instrument facially sufficient on its face and not to dismiss the accusatory instrument as facially defective pursuant to 170.30 and 170.35. On July 1, 2011, off calendar, defendant served and filed a reply to the People's motion seeking to hold the accusatory instrument facially sufficient.
The People's motion further seek a reservation of right to make additional responses to the defendant's reply as necessary and for such other and further relief as this court may deem necessary and proper.
On July 19, 2011, there was no decision and the case was adjourned to September 8, 2011 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[b].
Summary of Facts
The superseding accusatory instrument, alleges, in pertinent part, that on January 11, 2011, at approximately 1:37 PM, at 81 Vanderveer Street, County of Kings, Police Officer Sirka Morales responded to a radio run at 1:37 p.m. for a family dispute at 1532 Bushwick Avenue. According to the accusatory instrument, Officer Morales arrived at the location within a few minutes and observed a female individual, later known to the deponent as Shaquka Ingram, the complainant, standing outside in the cold without a coat on, wearing socks without shoes on.
The deponent is Police Officer Sirka Morales, Shield No. 6340, 083 Command.
Deponent further observed Ms. Shaquka Ingram, 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, Ingram, to the above mentioned location of 81 Vanderveer Street, which was a block and a half away.
Conclusions of Law and Rule of Law
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 ( see CPL 10.15 [3]; 100.40 [1][b], 70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense ( see CPL 10.40[c]. An information which fails to satisfy these requirements is jurisdictionally defective ( see CPL 170.30 and 170.35; People v Alejandro, 70 NY2d 133, 136-137; People v Dumas, 68 NY2d 729, 730).
Generally, it is the defendant who raises jurisdictional defects in motion papers and the People are entitled to respond to defendant's motion by indicating their intention to amend the complaint to reflect any changes in the charges. Here, the defendant made an oral motion, and the People requested and were granted an opportunity to respond in writing to defendant's oral motion.
People's Argument
The People first contend that the superseding accusatory instrument is an information because it contains admissible hearsay (excited utterance) 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.
Defense's Argument
The defendant counter argues that the excited utterance in this case does not corroborate the complaint because it does not contain all of the elements of an excited utterance. For example, defense counsel argues no injuries were observed, there was no measure of time interval from the alleged incident to when the officer encountered the complainant, and lastly, when the officer came upon the complainant, the complainant was not at the place where the alleged incident occurred, but instead was one and one-half block away from that location. For those reasons, defense counsel argues the statements do not meet the requirements of the excited utterance exception to the hearsay rule.
1. Excited Utterance Exception To 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 ( see People v Foster, 190 Misc 2d 625, 628; Prince, Richardson on Evidence § 8-101 [Farrell 11th ed]). If evidence is hearsay, and no exception to the rule is applicable, the evidence must be excluded upon appropriate objection to its admission ( Prince, Richardson, supra, at 497). 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 ( Id.). If the testimony is hearsay, then no such opportunity to cross-examine exist ( Id.).
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 ( Prince, Richardson, supra, § 8-104 at 500). Such a statement is sometimes referred to as an "apparent exception" to the hearsay rule ( Id.). 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 ( Id.).
In People v Alvarez ( 141 Misc 2d 686 [Crim Ct, NY County 1988]), 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 Alvarez, these statements are hearsay, but they would be admissible as an excited utterance exception to the hearsay rule ( Prince, Richardson, supra, § 8-604 at 638).
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 ( Prince, Richardson, supra, § 8-604 at 638). 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 ( see e.g., "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. 1 (Crim Ct, Kings County,), quoting People v Solomon, 2002 NY Slip Op. 50712(U) [Crim Ct, Kings County 2002]; see also, People v Vizcarrondo, 2003 NY Slip Op. 50600(U) [Crim Ct, Kings County 2003]; People v Foster, 190 Misc 2d 628 , supra; People v Swinger, 180 Misc 2d 344 (Crim Ct, NY County 1998]).
This court similarly holds that an excited utterance made by a complaint to a police officer/deponent, may serve in lieu of a supporting deposition, as the vehicle by which to convert a complaint into an information. Thus, having established that an excited utterance may convert a complaint into an information, the next level of analysis for the court is to determine whether the defendant's statement contained in the instant superseding complaint constitutes an excited utterance exception to the hearsay rule. As previously stated, an excited utterance is a spontaneous declaration made contemporaneously or immediately after a startling event, which asserts the circumstances of that occasion as observed by the declarant ( People v Foster at 630). Whether a statement is admissible as an excited utterance is a determination to be made by the trial court after consideration of all the circumstances, including the physical, psychological, and emotional condition of the declarant. For example, was the declarant under the stress of the excitement caused by an external event sufficient to still the reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful ( Prince, Richardson, supra, § 8-605).
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 ( see People v Edwards, supra, at 497).
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 ( People v Foster, supra, at 630). In brief, there is no arbitrary limitation on the permissible time period between event and the excited utterance ( Prince, Richardson, supra, § 8-606 at 639-640, citing People v Edwards, supra, at 497 [1979] and People v Brown, 70 NY2d 513). Of course, the longer the span between event and statement increases the likelihood of fabrication ( People v Foster, supra at 631-632). 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 ( Id.). 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 at approximately 1:37 p.m. 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.
A few is defined as not many; of small number, an indefinite expression for a small or limited number; indicating a small number of units or individuals which constitute the whole (Blacks Law Dictionary 319-320 [abridged 5th ed 1983]).
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 People v Naul ( 3 Misc 3d 1101(A), 2004 WL 89597 [(Crim. Ct., Queens County 2004]), 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 [the 55 minute] 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. In Naul, the court seemed to hold that the time element (55 minutes) 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 Naul, 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.
Even if the People have additional information such as the Sprint run to give the court a time line, the court would still be unable to look at the information because it would exist outside of the accusatory instrument. The fact that the police officer saw the complainant "crying, upset, afraid and hysterical" does not necessarily mean that she had no time to reflect or had no opportunity to fabricate a story. Here, the court in no way implies that the complainant's statements were fabricating a story. The court notes that the absence of physical injuries in cases of domestic abuse, which are traumatic events under any circumstance, is irrelevant on the issue of whether there was any abuse. The court recognizes that lack of physical injury in and of itself does not prove lack of domestic abuse.
The court views incidents of domestic 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 Morales 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.
2. Trial Readiness Pursuant To CPL 30.30
Having determined that the accusatory instrument is not an information because it relies upon inadmissible hearsay and violates the requirements of CPL 100.40(1)(c), the court now will determine whether the 30.30 time has not been exceeded and the People may amend the complaint.
In calculating the applicable chargeable time, the court finds that the People are charged 111 days from arraignment on January 12, 2011 to May 3, 2011. Because this delay exceeds the 90 day period required by CPL 30.30(1)(b) and the People would not have had time to amend the accusatory instrument, the instant superseding information is dismissed. Accordingly, the People's motion to retain the charges is denied in its entirety.
The foregoing constitutes the decision and order of the court.
Statement cannot qualify as an excited utterance where critical time element is missing between startling event and statement