This decision has been referenced in a table in the New York Supplement.
The Legal Aid Society, by Emily Poppish, represented defendant.
The Kings County District Attorney was represented by ADA Ritha Pierre.
JOHN T. HECHT, J.
Defendant Horace Anderson is charged with the class A misdemeanor of Assault in the Third Degree (PL § 120.00 ) and other charges based on Dominique Goode's allegation that on January 24, 2013, at approximately 7 PM, he grabbed her by the neck and punched her. On April 1, the People served and filed a superseding information retaining the same charges but relying on the arresting officer's observations rather than Ms. Goode's allegations for the factual portion of the accusatory instrument. Specifically, the superseding information alleges that Officer Lusky received a radio run of a 911 call made at 8 PM reporting an assault in progress; that he arrived at the scene at approximately 8:05 PM; and that he observed the complainant, who was visibly shaking and crying, exclaim to him, " He had his hands around my throat." Officer Lusky observed that the complainant had fingermarks around her neck and redness and bruising to her face. Defendant was present, as may be inferred from the charge of resisting arrest based on the allegation that, when Officer Lusky tried to place him under arrest, defendant resisted by struggling with the officer.
Defendant moves, pursuant to Criminal Procedure Law [" CPL" ] sections 170.30 and 170.35, for an order dismissing all charges but the resisting arrest, and in particular, the charge of assault, for facial insufficiency, and, pursuant to CPL sections 170.30(1)(e) and 30.30(1)(b), for an order dismissing all charges on speedy-trial grounds. The People oppose. For the reasons that follow, the motion is denied.
To be facially sufficient, an information must state " facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15; CPL 100.40[a] ). Its " non-hearsay allegations [must] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.15; CPL 100.40[c] ). At the pleading stage, all that is necessary is that the non-hearsay factual allegations be evidentiary in character and tend to support the charges ( People v. Allen, 92 N.Y.2d 378, 385  ).
The non-hearsay requirement is met by admissible hearsay ( People v. Casey, 95 N.Y.2d 354, 361 ; People v. Vickers, 17 Misc.3d 1113(A) [Crim Ct, Kings County 2007] ). An out-of-court statement is admissible under the excited utterance hearsay exception when it is made under the stress brought about by an event and not the product of studied reflection ( People v. Johnson, 1 N.Y.3d 302, 306 ; People v. Valentine, 2013 N.Y. Slip Op 23189[U] [App Term, 2d Dept 2013] ). The rationale for the exception is that a person under such influence lacks the reflective capacity to fabricate, so that her statement will be spontaneous and trustworthy ( People v. Edwards, 47 N.Y.2d 493  ).
People v. Casey advises that " so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v. Casey, 95 N.Y.2d 354, 360  ). The challenged allegations here satisfy that test through admissible hearsay.
A person is guilty of assault in the third degree when " [w]ith intent to cause physical injury to another person, he causes such injury to such person" (Penal Law § 120.00 ). Physical injury is " impairment of physical condition or substantial pain" (Penal Law § 10.00 ). The defendant's intent to cause physical injury may be inferred from the alleged act and/or the surrounding circumstances ( People v. Smith, 79 N.Y.2d 309, 305 ; People v. Bracey, 41 N.Y.2d 296, 301  ).
Here, Officer Lusky arrived at the scene to observe a visibly upset and shaking complainant exclaim, " He had his hands around my throat." Officer Lusky noted finger marks on the complainant's neck, as well as redness and bruising to her face. Under the circumstances— in particular, the complainant's emotional state— an allegation that complainant was choked, coupled with the observation of finger marks on her neck and redness and bruising to her face, suffices for the physical injury and intent components of an assault charge. The motion to dismiss that charge is therefore denied.
With regard to whether the non-hearsay requirement is met by the alleged excited utterance, I make the following observations. Although the lapse of time between the event and the statement bears on whether the complainant had time to fabricate ( People v. Foster, 190 Misc.2d 625, 628 [Crim Ct, Kings County 2002] ), there is no bright-line rule regarding how much time may pass before a statement no longer bears the trustworthiness of an excited utterance ( People v. Brown, 70 N.Y.2d 513, 517 ; People v Edwards, supra at 497  ). A court must assess the nature of the startling event and the amount of time between the occurrence and the statement, as well as the declarant's intervening actions ( People v. Edwards, supra at 497). Thus, in Valentine, although " neither the exact amount of time that elapsed between the alleged assault and the victim's statement, nor the activities of the complainant in the interim, can be determined, the surrounding circumstances ... justif[ied] the conclusion that the complainant's remarks were not made under the impetus of studied reflection" ( People v. Valentine, supra ).
Here, the time of occurrence indicated in the superseding information, 7 PM, was about an hour before the radio run and the arrival of the police. Nonetheless, although the incident may have begun at 7 PM, the superseding information demonstrates that there was an ongoing emergency when the police arrived and that the complainant's utterance was made under the stress brought about by the alleged assault. Officer Lusky arrived within five minutes of a radio run of a 911 call of an assault in progress to find the complainant shaking and crying and the defendant still on the scene. His alleged struggle with the police further evidences the continued threat he posed to her. Accordingly, the subject statement qualifies as an excited utterance, and defendant's motion to dismiss for facial insufficiency is denied.
With respect to the speedy-trial issue, where, as here, a defendant is charged with one or more offenses, and at least one is a class A misdemeanor and none are felonies, the applicable speedy-trial period is ninety ...