Opinion
No. 2015NY021173.
12-01-2015
The PEOPLE of the State of New York v. Joshua VARNER, Defendant.
Cyrus R. Vance, Jr., District Attorney, New York County, (Alexander Kahn, of Counsel), for People. Seymour James, Esq., (Rania Riad, of Counsel), for Defendant.
Cyrus R. Vance, Jr., District Attorney, New York County, (Alexander Kahn, of Counsel), for People.
Seymour James, Esq., (Rania Riad, of Counsel), for Defendant.
RAJA RAJESWARI, J.
The defendant, Joshua Varner, is charged with Assault in the Third Degree (Penal Law [PL] § 120.00[1] ), Aggravated Harassment in the Second Degree (PL § 240.30[4] ) and Harassment in the Second Degree (PL § 240.26[1] ). He moves for an order dismissing all counts as facially insufficient pursuant to Criminal Procedure Law (CPL) 170.30(1)(a), 100.15(3), and 100.40(1)(a), and as a denial of his speedy trial rights pursuant to CPL 30.30. The People oppose these motions.
The defendant's motions to dismiss for facial insufficiency and for violation of CPL 30.30 are denied for the reasons articulated below.
FACIAL INSUFFICIENCY
Procedural history
The defendant was arraigned April 5, 2015 on a complaint signed that same day by Police Officer Raphael Sanchez. In addition to the above-mentioned charges, the complaint included a count of Unlawful Possession of Marihuana (PL § 221.05). The case was adjourned for the People to serve and file a supporting deposition. On May 13, 2015, the People served and filed off-calendar a supporting deposition of a police officer regarding the Marihuana count and a certification of readiness. On June 3, 2015, the People served and filed off-calendar a purported superseding information that retained all but the Marihuana count. On July 8, 2015, the Court deemed the superseding information unconverted because the People had not served and filed a supporting deposition of the alleged assault victim. The case, however, was adjourned until September 9, 2015, at the defendant's request, for the instant motions. On September 2, 2015, the defendant served and filed those motions off-calendar. The People served and filed their response on October 8, 2015, off-calendar. The motions have been sub judice since then.
To date, the People have not served and filed a supporting deposition of Shawntia Stevens or a Police Department Domestic Incident Report (DIR), a form which provides space for a summary of allegations signed by the alleged victim.
The relevant factual allegations of the new accusatory instrument read as follows:
I [P.O. Raphael Sanchez] received a radio run [on or about April 5, 2015] at 4:11 AM for an assault in progress at the above location [2406 Eighth Avenue in the County and State of New York]. I arrived to [sic] the sixth floor of the building at the above location at approximately 4:30 AM. I observed Shawntia Stevens, of an address know to the District Attorney's Office, had swelling and redness to her face and a laceration on her face. I further observed that Ms. Stevens' shirt was torn and that while she was crying, she was yelling in substance in a loud voice: HE DID THIS TO ME. HE'S IN THE APARTMENT. MY BOYFRIEND HIT ME. I observed that while she made this statement, she was gesturing to her face with her hand, I then observed Ms. Stevens point to the defendant.
The accusatory instrument also alleges, without attribution, that the offenses charged were committed at 4 a.m. on April 5, 2015.
Discussion
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution; it ensures that a legally sufficient case can be made against the defendant (People v. Dumay, 23 NY3d 518 [2014] ; People v. Alejandro, 70 N.Y.2d 133, 139 [1987] ). Accordingly, a misdemeanor information must set forth “non-hearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” ( People v. Kalin, 12 NY3d 225 [2009], citing People v. Henderson, 92 N.Y.2d 677, 679 [1999] and CPL 100.40[1] [c] ). This is known as “the prima facie case requirement” (People v. Kalin, 12 NY3d at 229 ).
The prima facie case requirement does not insist that the information allege facts that would prove defendant's guilt beyond a reasonable doubt (People v. Jennings, 69 N.Y.2d 103, 115 [1986] ). Rather, the information need only contain allegations of fact that “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense” ( People v. Casey, 95 N.Y.2d 354, 360 [2000] ). A court reviewing for facial insufficiency must subject the allegations in the information to a “fair and not overly restrictive or technical reading” (id. ), assume that those allegations are true, and consider all reasonable inferences that may be drawn from them (CPL 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747 [2012] ; see also People v. Casey, 95 N.Y.2d at 360 ).
The defendant argues that the factual allegations as to all counts do not make out a prima facie case because they rely upon uncorroborated hearsay, i.e., the purported allegations of Shawntia Stevens allegedly overheard by P.O. Sanchez that the defendant had struck her. The People counter that under the circumstances alleged by P.O. Sanchez the People are permitted to rely upon the hearsay for pleading purposes under the so-called “excited utterance” exception to the common law prohibition against hearsay evidence.
For an accusatory instrument to be facial sufficient, every element of the charged offense “must be supported by non-hearsay allegations” (CPL 100.15 [3 ]; see People v. Casey, 95 N.Y.2d at 361 ). The allegations allegedly uttered by Shwantia Stevens to P.O. Sanchez are obviously hearsay because they were made out-of-court and are offered for the truth of the matter stated (see People v. Ludwig, 24 NY3d 221. 231 [2014] ). However, the non-hearsay requirement of CPL 100.15(3) is satisfied if the allegation “would be admissible under some hearsay rule exception” (People v. Casey, 95 N.Y.2d at 361 ), referring to Marks et al, New York Pretrial Criminal Procedure § 3.7, at 109 [7 West's N.Y. Prac. Series 1996] ; see also People v. Belcher, 302 N.Y. 529, 534–35 [1951] ).
A long recognized exception to the hearsay rule is an “excited utterance,” formerly called a “spontaneous declaration” (People v. Johnson, 1 NY3d 302, 305 [2003] ). As the Johnson court explained at page 306 :
An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication.
The Johnson court also repeated the underlying psychological rationale for admitting such evidence annunciated in People v. Edwards, 47 N.Y.2d 493, 497 (1979) :
Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and accordingly, any utterance he makes will be spontaneous and trustworthy. [Id. ]
Factors which the Edwards court insisted that any reviewing court consider are the nature of the alleged startling event, the time that had elapsed between the occurrence and the declaration, and the activities of the declarant in the interim (id. ). Regarding the time period between the alleged startling event and the declaration, the court in Johnson pointed out that there is “no definite or fixed period of time within which the declaration must have been made” (People v. Johnson, 1 NY3d at 307 ).
The alleged startling event in the instant matter was physical violence against the person of Shawntia Stevens such that her face appeared swollen with redness and bore a laceration and her shirt was torn. The alleged perpetrator was Ms. Stevens' boyfriend, a person she reasonably would not have expected to engage in such an attack. The officer deponent allegedly arrived at the location within 19 minutes of the radio dispatcher's call that there was an assault “in progress” and within 30 minutes of the alleged violent acts. The officer allegedly discovered Ms. Stevens on the sixth floor yelling “in a loud voice” and crying. Ms. Stevens allegedly told the officer that the defendant was inside the apartment and pointed him out at the location.
Under the circumstances alleged, it is reasonable to conclude for pleading purposes that Ms. Stevens' alleged statements were uttered while she was still under the stress of the violence against her, the injuries she allegedly had sustained and the perpetrator's continued presence near her. It is also reasonable to infer that her motive in uttering those words was to seek help from the police to end any further violence against her rather than studied reflection to aid in prosecution of the defendant. The fact that the complainant's declaration occurred more than 20 minutes after the alleged assault does not undercut the Court's holding because “the psychological and emotional effect of the sudden event may persist and continue to operate with undiminished force for a period of time thereafter....” (People v. Brown, 70 N.Y.2d 513, 521 [1987] ).
Similar circumstances were alleged in a superseding information in People v. Valentine, 40 Misc.3d 28, 31 (App Term, 2d, 11th and 13th Jud Dists; lv denied 21 NY3d 1046 [2013] ). In that case, the deponent police officer had arrived within a few minutes after receiving a radio run in the early morning hours. He encountered the complainant standing outside in the January night without coat or shoes. She was screaming and crying (id. ). She told the officer that the defendant had choked her. The Appellate Term held that while it was impossible to determine the exact amount of time that had elapsed between the alleged assault and the victim's statement,” the statement was an excited utterance, the accusatory instrument was facially sufficient, and the dismissal would be reversed. Similarly, in People v. Harris, 32 Misc.3d 1215(A) (Crim Ct, Queens County 2011) (unreported), the that court held that the declaration of the complainant which the People relied upon in the accusatory instrument was an excited utterance and satisfied the prohibition of CPL 100.15(3) against hearsay.
In Harris, the accusatory instrument alleged that the police officer deponent had arrived at the location in response to a radio run, which had been broadcast 15–20 minutes earlier. The officer allegedly encountered the complainant standing outside, yelling, flailing her arms and breathing erratically. The officer also alleged that he had observed a scratch under her eye with swelling and bruising. The officer asked her what happened. The complainant allegedly replied that her boyfriend, the defendant, had hit her across the face with his hand. The officer observed the defendant sitting in a nearby car. The Court in People v. Torres, 46 Misc.3d 1205(A) (Crim Ct, Bronx County 2014) (unreported) came to the same conclusion on similar facts.
In Harris, the Court concluded that the fact that the complainant's declaration followed the police officer's questions did not negate the declaration's status as an excited utterance because it is reasonable to conclude that the officer asked the question to determine whether there was any further danger to the complainant. This reasoning has long been recognized as sound (see People v. Brown, 70 N.Y.2d at 522 ). In the instant case, the accusatory instrument does not say whether the complainant's declaration was preceded by police questioning. But even if had been, this would not necessarily defeat the admissibility of the declaration.
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The defendant urges the Court to reject the declaration as an excited utterance relying on the opinion and decision in People v. Schuler, 23 Misc.3d 1137(A) (Crim Ct, Kings County 2009). In that case, the facts alleged in the accusatory instrument were somewhat similar to those in the cases cited above and in the instant case. The Schuler court held that the facts did not sufficiently establish how long after the startling event came the complainant's declaration to the police officer. The court said it was not convinced that the complainant's demeanor (“shaking and very upset”) and the swelling and redness about her face showed that she was still under the stress of the violence allegedly perpetrated upon her.
This court respectfully declines to follow Schuler 's holding, which the Court notes, has not be followed or cited in any published decision. In People v. Martinez, 33 Misc.3d 1216(A) (Crim Ct, N.Y. County 2011), Judge Tamiko Amaker was also confronted with an accusatory instrument that did not establish how long after the startling event the declaration was uttered. However, the Court focused instead on the complainant's demeanor and behavior at the time when the declaration was made (flailing hands, crying, fast-paced speaking and elevated tone) and the visible indicia of assaultive injuries (swelling, bruises, scratches, lacerations and bite marks) and came to the conclusion that the accusatory instrument showed that the complainant had recently sustained the injuries. “It is a reasonable inference at the pleading stage that the complainant's statement was made under the stress of excitement such that he was not capable of studied reflection and possible fabrication (id. ).”
The defendant also contends that the accusatory instrument fails to establish reasonable cause to believe that he is the perpetrator of the alleged offenses. The Court disagrees, the accusatory instrument alleges that the alleged victim pointed the defendant out to the deponent officer after alleging that he had hit her.
The defendant's reliance on People v. DeFreitas, 48 Misc.3d 569 (Crim Ct, N.Y. County 2015), is misplaced. In that case, the complainant's allegations were contained in a DIR, in which the complainant's statement did not include the defendant's name in the space provided and only referred to the perpetrator as “he.” The accusatory instrument did not include an alleged point-out of the defendant as the perpetrator. As a result, the court in DeFreitas held that the accusatory instrument did not provide reasonable cause to believe that the defendant was the perpetrator (id. at 580–81 ). Such vague identification of the perpetrator is not presented in the instant matter.
The Court's decision on July 8, 2015 to deem the initial accusatory instrument unconverted was made without the benefit of motion practice and an opportunity to study the record and relevant case law. Upon proper reflection, it is clear that the accusatory instrument is facially sufficient. Whether the People will be able to prove at trial the defendant's guilt beyond a reasonable doubt as to these counts or even whether the complainant's out-of-court declaration will be admissible at trial are not at issue before the Court at this time. It suffices to say that the accusatory instrument provides the defendant with sufficient information to prepare a defense and prevents him from being tried twice for the same crime (People v. Casey, 95 N.Y.2d at 360 ). Accordingly, the defendant's motion to dismiss the accusatory instrument as facial insufficient is hereby denied.
CPL 30.30 CLAIM
The most serious offense of which the defendant is charged is a Class A misdemeanor. The People must be ready for trial for such an offense within 90 days of commencement of the criminal action, absent excludable time (CPL 30.30[1][b] ). Because the Court holds that only 38 days are chargeable to the People, the defendant's motion to dismiss on speedy trial grounds is denied.
Under New York's readiness rule, when a defendant is charged with at least one non-felony offense punishable by more than three months of incarceration, the case must be dismissed when the People have not answered ready for trial within 90 days of the commencement of the action (CPL 30.30[1][b] ). Assault in the Third Degree and Aggravated Harassment in the Second Degree are Class A misdemeanors punishable by up to one-year imprisonment (see PL §§ 120.00, 240.26; 70.15[1] ). Accordingly, the CPL 30.30 time-limit in this matter is 90 days from commencement of the action.
This action commenced on April 5, 2015, when the People served and filed a criminal court complaint charging the defendant with the afore-mentioned offenses and another offense the count of which was later withdrawn. The accusatory instrument gave the People a readiness deadline of 90 days (CPL 30.30[1][b] ). The defendant bears the burden of going forward with sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by the statute, and then the People have the burden of justifying that delay (see People v. Santos, 68 N.Y.2d 859 [1986] ).
A review of the defense motion papers, the People's written response, and the court file discloses that the periods of delay are attributable as follows:
The adjournment period from April 5, 2015 through May 4, 2015, 29 days, is chargeable to the People, because it was ordered to afford them an opportunity to serve and file a then-necessary supporting deposition of a police officer.
That portion of the adjournment from May 4, 2015 through July 8, 2015, that preceded the People's off-calendar filing of a supporting deposition and a certificate of readiness, 9 days, is chargeable to them. The remainder of the adjournment is not. This is because the People satisfied their obligation to be ready for trial and announced that readiness, which stopped the CPL 30.30 clock, notwithstanding the fact that the case had been adjourned because of the People's unreadiness on May 4, 2015 (see People v. Kendzia, 64 N.Y.2d 331, 337 [1985] ). The fact that the People served and filed a superseding information and another certificate of readiness on June 3, 2015, does not render the People's prior announcement of readiness invalid. The new instrument merely withdrew the Marihuana count and added a factual allegation that the alleged victim pointed the defendant out to the officer.
The periods of adjournment from July 8, 2015 through December 1, 2015, is not chargeable to the People because the delays were ordered to enable the defendant to serve and file the instant motion and for response and decision. This period is excludable because it was occasioned by motion practice (see CPL 30.30[4][a] ; People v. Worley, 66 N.Y.2d 523 ) not withstanding the fact that the defendant had relied on the Court having deemed the accusatory unconverted on July 8, 2015 (see People v. Gonzalez, 181 Misc.2d 105, 111 [Crim Ct, N.Y. County 1998], citing People v. Jones, 151 Misc.2d 582, 584 [App Term, 2d Dept 1991] ) In Gonzalez, a prior erroneous ruling that the complaint had been converted did not render defendant's motion practice as chargeable time. In Jones, an erroneous ruling that the felony complaint had been reduced to a misdemeanor one did not render motion practice time chargeable.From commencement of this case with the filing of the original criminal court complaint on April 5, 2015 to date, 38 chargeable days have passed without the People answering ready for trial. Because this is less than the 90–day time limit for the top count, the People have not exhausted their CPL 30.30 time limit.
Accordingly, the defendant's motion for an order dismissing the accusatory instrument on CPL 30.30 grounds is hereby denied.
This opinion constitutes the Decision and Order of the Court.