Opinion
2014BX060657
05-04-2015
The People of the State of New York v. Alpha Balde, Defendant.
Defense Counsel Maxwell Kampfner, Esq. The Bronx Defenders 360 East 161st Street Bronx, New York 10451 The People William Browne, Esq. Assistant District Attorney Bronx County District Attorney Office 198 East 161st Street Bronx, New York 10451
Defense Counsel
Maxwell Kampfner, Esq.
The Bronx Defenders
360 East 161st Street
Bronx, New York 10451
The People
William Browne, Esq.
Assistant District Attorney
Bronx County District Attorney Office
198 East 161st Street
Bronx, New York 10451
Jeanette Rodriguez-Morick, J.
Defendant Alpha Balde ("Defendant") stands charged with assault in the third degree (Penal Law § 120.00 [1]), aggravated harassment in the second degree (id. § 240.30 [4]), and harassment in the second degree (id. § 240.26 [1]). He moves to dismiss the accusatory instrument for facial insufficiency, pursuant to CPL 170.30, 170.35, and 100.40.
For the reasons that follow, Defendant's motion is GRANTED. Background
For purposes of this motion, the court is required to presume the factual allegations to be true (People v Jackson, 18 NY3d 738, 741 [2012]; CPL 100.40 [1] [c]) and must "draw reasonable inferences from all the facts set forth in the accusatory instrument" (see Jackson, 18 NY3d at 747).
At about 10:40 a.m. on November 13, 2014, police officers received a radio run of an assault in progress at a Bronx address. Responding to that location twenty minutes later, the officers observed complainant, Aniqueka Richards ("Complainant"), crying hysterically, wearing no pants, and bearing a red bruise on the side of her face. The Complainant explained to the officers, "WE GOT INTO AN ARGUMENT. HE PULLED MY HAIR AND PUNCHED ME IN THE FACE. IT HURT. WE HAVE A KID TOGETHER. I WANT TO PRESS CHARGES," and identified Defendant as the man who had hit her, i.e., the father of her child. Defendant then stated to the officers: "WE GOT INTO A HEATED ARGUMENT. IT STARTED TO GET REALLY HEATED, SO I WALKED AWAY." Analysis
To be facially sufficient, the factual allegations of an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes asserted therein (CPL 100.40 [1] [b]). The accusatory instrument must include non-hearsay allegations of fact that, if true, establish "every element of the offense charged and the defendant's commission thereof" (id. 100.40 [1] [c]). Generally, a deficiency as to the factual allegations supporting the elements of the crime entitles a defendant to dismissal on the ground that the information is defective (id. 170.30 [1] [a]; 170.35 [1] [a]).
Defendant's contentions boil down to the following:
(1)the declarations at issue here are inadmissible as excited utterances;
(2)People v Casey, 95 NY2d 354 (2000), which held that hearsay exceptions can be used to satisfy CPL 100.40 (1) (c)'s non-hearsay requirement, has been abrogated by Crawford v Washington, 541 US 36 (2004); and
(3)the "non-hearsay allegations," required by CPL 100.40 (1) (c), cannot be satisfied by allegations admissible under hearsay exceptions.
(See Mem of Law passim.)
Out-of-court declarations are considered excited utterances—and thus excluded from the rule against hearsay—when made "under the stress of excitement caused by an external [startling or traumatic] event, and not the product of studied reflection and possible fabrication" ( People v Johnson, 1 NY3d 302, 306 [2003]). Whether a declaration falls within this category of admissible hearsay turns on various factors: (1) the nature of the event; (2) the amount of elapsed time between the event and the declaration; (3) the declarant's activities between the event and the declaration; (4) the declarant's opportunity to deliberate, if any, such that he or she could deviate from the truth; and (5) whether the circumstances indicate that the declarant made the statements under the impetus of studied reflection ( People v Diaz, 21 AD3d 58, 65-66 [1st Dept 2005], citing People v Vasquez, 88 NY2d 561, 579 [1996], People v Edwards, 47 NY2d 493, 497 [1979]).
The circumstances here suggest that Complainant's statements were the product of reflection and, therefore, not excited utterances. Twenty minutes had elapsed between the transmission of the radio run and the officers' arrival on scene. Although the duration of elapsed time alone is not controlling (see Johnson, 1 NY3d at 306), the nature of Complainant's statement, "I WANT TO PRESS CHARGES," reflects that the lapse of time provided to Complainant the "the opportunity to deliberate and depart from the truth" (People v Gantt, 48 AD3d 59, 64 [1st Dept 2007] [internal quotation marks omitted]) because it shows that Complainant was aware that her statements could be used in a future criminal prosecution. Such an awareness runs counter to a finding that Complainant remained under the stress of the assault such that "any utterance [s]he ma[d]e [would have been] spontaneous and trustworthy" (see id. [brackets added]).
Defendant's remaining contentions—i.e., that People v Casey was abrogated by Crawford v Washington and that CPL 100.40 (1) (c)'s non-hearsay requirement cannot be satisfied by non-corroborated hearsay allegations—are without merit for reasons discussed at length by this court in People v Torres, 46 Misc 3d 1205(A), 2014 NY Slip Op 51897(U) (Crim Ct, Bronx County 2014).
Accordingly, Defendant's motion to dismiss is granted.
This constitutes the Decision and Order of the Court.
Dated: May 4, 2015
Bronx County, New York
SO ORDERED:
____________________________
Jeanette Rodriguez-Morick
Judge of the Criminal Court