Opinion
2011QN011459.
Decided July 13, 2011.
Allen S. Popper-Legal Aid Society, Attorney for defendant.
ADA Gloria Lam, Attorney for the People.
The defendant, Jamel Harris, is charged with Assault in the Third Degree, Penal Law [" PL"] § 120.00(1), Harassment in the Second Degree, PL § 240.26(1), Petit Larceny, PL § 155.25 and Criminal Possession of Stolen Property in the Fifth Degree, PL § 165.40. The defendant moves to dismiss the information for facial insufficiency, claiming that it does not contain nonhearsay factual allegations which establish every element of the offenses charged. In sum, he argues that the complainant's statement to the deponent police officer that the defendant hit her across the face with his hand and stole her cell phone is uncorroborated hearsay. Contrary to the defendant's contention, under the circumstances alleged the complainant's statement to the officer qualifies as an excited utterance under the exception to the rule against hearsay. Because the nonhearsay factual allegations of the information, accepted as true, therefore establish every element of the offenses charged, the defendant's motion is denied.
An information is facially sufficient when the factual allegations provide reasonable cause to believe that the defendant committed the offense charged and the nonhearsay factual allegations, if true, establish every element of the offense charged and defendant's commission thereof (CPL § 100.40[b] and [c]; see People v Dumas, 68 NY2d 729; see also People v Alejandro, 70 NY2d 133).
While the requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone ( Alejandro, 70 NY2d at 138, quoting 1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments) it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt ( People v Henderson, 92 NY2d 677, 680; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Where the factual allegations contained in an information "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, they should be given a fair and not overly restrictive or technical reading" ( People v Casey, 95 NY2d 354, 360; see also People v Konieczny , 2 NY3d 569 ; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733; People v Shea, 68 Misc 2d 271, 272; People v Scott , 8 Misc 3d 428 , 429)
The information alleges that at 6:10 p.m. on March 1, 2011, Police Officer Adam Gonzalez arrived at 248-13 Jamaica Avenue in Queens County approximately 15 to 20 minutes after receiving a radio run to the location. Lanique Reaves, the complainant, was standing outside. Officer Gonzalez observed that she was "upset in that she was yelling, flailing her arms and breathing erratically." Officer Gonzalez also observed that she had "a scratch under her eye with swelling and bruising around it." When the officer asked the complainant what happened, she stated that her boyfriend, the defendant, hit her across the face with his hand and that he took her cell phone and refused to return it. Officer Gonzalez observed the defendant sitting in a nearby car and subsequently recovered the complainant's cell phone from his jacket pocket.
An out-of-court statement is admissible under the common law hearsay exception for an excited utterance when it is "made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication" ( People v Johnson , 1 NY3d 302 , 306). The exception assumes 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., citing People v Edwards, 47 NY2d 493, 497). An excited utterance is made in the brief period following the startling event during which the declarant is "under the immediate and uncontrolled domination of the senses" and is incapable of the reasoned reflection necessary to consider self-interest ( id., citing People v Marks, 6 NY2d 67, 71).
To determine whether a particular statement is an excited utterance, "the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful" ( Edwards, 47 NY2d at 497; see also People v Gantt , 48 AD3d 59 , 63-64 [1st Dept 2007]; People v Williams , 44 AD3d 326 , 327 [1st Dept 2007]; People v McClary , 21 AD3d 1427 , 1428 [4th Dept 2005]; cf. Johnson, 1 NY3d at 307 [statement made one hour and 20 minutes after the incident when the complainant was calm, alert and able to follow complex commands was not an excited utterance]). The court must assess the nature of the startling event, the lapse of time between the event and the statement, and the activities of the declarant in the interim to see whether there was a "significant opportunity to deviate from the truth" ( Edwards, 47 NY2d at 497). "[T]he decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the statement was not made under the impetus of studied reflection" ( id.).
Although the court must consider the period of time between the startling event and the statement, "there can be no definite or fixed period of time within which the declaration must have been made, and each case must depend upon its own circumstances" ( Johnson, 1 NY3d at 306). Indeed, "the imposition of an arbitrary time limit would run counter to the assumptions underlying the admissibility of excited utterances" ( People v Brown, 70 NY2d 513, 520-521) since "the psychological and emotional effect of the sudden event may persist and continue to operate with undiminished force for a period of time thereafter" ( id. at 521). The time for reflection is not measured in minutes or seconds, but by the facts ( see Johnson, 1 NY3d at 307, citing People v Vasquez, 88 NY2d 561, 579).
The focus of the inquiry is the physical, psychological, and emotional condition of the declarant ( Brown, 70 NY2d at 522) and whether the statement was made before there was "time to contrive and misrepresent" ( Johnson, 1 NY3d at 307, citing Brown, 70 NY2d at 518). The nature and extent of any trauma experienced by the declarant is a significant factor ( see Johnson, 1 NY3d at 307; see also Brown, 70 NY2d at 520). Thus, a statement may be considered an excited utterance even though it is made in response to police questioning ( see id.; Brown, 70 NY2d at 517 [victim's emergency room statements in response to deliberate police questions 30 minutes after shooting while victim was in unabated pain and in deteriorating condition were properly admissible as excited utterances]; People v Bradley , 8 NY3d 124 [admission of incriminating out-of-court statement made by emotionally-upset woman smeared with blood in response to police question of "what happened" did not violate the defendant's right of confrontation]). Simply stated, the test for an excited utterance is "whether the declarant is capable of studied reflection and therefore incapable of fabrication" ( id.).
Regardless, an out-of-court statement made by a non-testifying witness in response to police interrogation whose primary purpose is to prove past events relevant to a potential criminal prosecution is inadmissible at trial ( see Davis v Washington, 547 US 813, 822 [2006]). Because such statement is testimonial in nature, and the defendant had no prior opportunity to cross-examine the declarant, the statement's admission, despite whether it qualifies as a hearsay exception, violates the defendant's right of confrontation ( see Crawford v Washington, 541 US 36, 53-54 [2004]). Conversely, an out-of-court statement made by a non-testifying witness in response to police interrogation whose primary purpose is to meet an ongoing emergency may be admitted as an excited utterance without impinging on the defendant's constitutional right of confrontation ( see Davis, 547 US at 822; see also People v Nieves-Andino , 9 NY3d 12 , 16 [2007]; People v Bradley , 8 NY3d 124 , 128 [2006]). The primary purpose of the interrogation is ascertained by objectively assessing the statements, actions and perspective of both the declarant and the interrogator ( see People v Clay, 2011 WL 2570701, 4 [NYAD 2d Dept], citing Michigan v Bryant, 131 S Ct 1143, 1156, 1160 [2011]). It is a fact-based inquiry which must be resolved on a case-by-case basis ( id., citing Nieves-Andino, 9 NY3d at 15). In any event, since the defendant has no right to confront the witnesses against him at the pleading stage, the determination of whether admission of the statement violates the defendant's Sixth Amendment right of confrontation is appropriately reserved to the trial court ( see Davis, 547 US at 831 n6 ["the Confrontation Clause in no way governs police conduct because it is the trial use of, not the investigatory collection of, ex parte testimonial statements which offends that provision"]).
Here, the deponent police officer responded to the location approximately 15 to 20 minutes after he was dispatched there. He observed the complainant outside the address "yelling, flailing her arms and breathing erratically" with "a scratch under her eye with swelling and bruising around it." When he asked her what happened, she told him that her boyfriend, the defendant, hit her on the face with his hand and stole her cell phone. The violation of trust suffered by a person who has been assaulted by an intimate partner compounds the traumatic effect of the experience. Indeed, the complainant's behavior evinces her psychological and emotional condition and demonstrates that she was still under the influence of the excitement precipitated by the event ( see Edwards, 47 NY2d at 497). Moreover, the complainant's behavior is consistent not only with nervous excitement but with fear. Her assailant remained nearby, sitting in a car. The perception that the defendant's continued presence at the scene posed an undiminished threat to her further obviates the complainant's opportunity for studied reflection ( see id.).
The facts alleged and the reasonable inferences to be drawn from them, when viewed in the light most favorable to the People ( see People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]) sustain the conclusion that at the time the complainant spoke to the officer she was not capable of studied reflection and therefore was incapable of fabrication ( see Johnson, 1 NY3d at 307). Accordingly, for pleading purposes, her statement that the defendant hit her on the face with his hand and took and refused to return her cell phone is properly classified as an excited utterance. Consequently, the nonhearsay factual allegations that the defendant hit the complainant on the face with his hand; that he took and refused to return her cell phone; that she had a scratch, swelling and bruising to her eye; and that her cell phone was recovered from his jacket pocket, if accepted as true, establish that the defendant intentionally caused physical injury to the complainant ( see PL § 120.00); that, with the intent to harass, annoy or alarm her, he struck her or otherwise subjected her to physical contact ( see PL § 240.26); that he stole her property ( see PL § 155.25); and that he knowingly possessed her stolen property with intent to impede her from recovering it ( see PL § 165.40). While the People still must meet their burden of proof beyond a reasonable doubt at trial, they have satisfied their much lesser burden at the pleading stage. The defendant's motion to dismiss for facial insufficiency therefore is denied.
This constitutes the decision and order of the Court.