People v. Foster

190 Misc. 2d 625, 740 N.Y.S.2d 567, 2002 N.Y. Misc. LEXIS 155
CourtCriminal Court of the City of New York
DecidedJanuary 31, 2002
StatusPublished

This text of 190 Misc. 2d 625 (People v. Foster) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Foster, 190 Misc. 2d 625, 740 N.Y.S.2d 567, 2002 N.Y. Misc. LEXIS 155 (N.Y. Super. Ct. 2002).

Opinion

OPINION OF THE COURT

Charles A. Posner, J.

The defendant Yvette Foster charged with assault in the third degree (Penal Law § 120.00 [1]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), menacing in the second degree (Penal Law § 120.14 [1]) and harassment in the second degree (Penal Law § 240.26 [1]) moves to dismiss the underlying accusatory instrument on speedy trial grounds pursuant to CPL 30.30 (1) (b). At issue is whether an excited utterance which is made to or heard by a deponent and which is set forth in the factual allegations portion of a misdemeanor complaint may serve to convert the instrument into a valid information in the absence of a supporting deposition. As an ancillary issue, this court is called upon to decide whether a statement of readiness for trial which is conditioned upon whether the court deems an accusatory instrument to be a valid information is a permissible and sufficient indication of actual and present readiness as required by People v Kendzia (64 NY2d 331).

The defendant’s motion to dismiss is predicated on the argument that since the accusatory instrument was never properly converted to an information that no effective statement of readiness for trial could have been made. The motion arises from the following facts and procedural history. The defendant Yvette Foster was arrested at approximately 4:30 a.m. on February 9, 2001 on charges arising out of an alleged attack upon her boyfriend David Samuels. The defendant was arraigned later that day on the aforementioned charges specified in paragraph one. All of the charges are class A misdemeanors with the exception of harassment in the second degree which is a violation. At the defendant’s arraignment on February 9, 2001 a misdemeanor complaint was filed, the factual allegations of which read as follows: “Deponent is informed by David Samuels that, at the above time and place, the defendant did stab the informant in the head with a screwdriver thereby [627]*627causing the informant to sustain a laceration to the informant’s head, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.” The complaint was signed by the deponent/arresting officer Joseph M. Nunes. The case was then adjourned to March 14, 2001. (This 33-day adjournment is chargeable to the People.)

On March 14, 2001 the People again were without a corroborating affidavit. The case was then adjourned to April 26, 2001. (This 43-day adjournment is chargeable to the People for an aggregate total of 76 chargeable days.)

On April 26, 2001 the People filed a superceding complaint. The charges were identical to those in the original complaint. The factual allegations, however, differed from those in the original and read as follows:

“The Deponent states that, at the above time and place, the deponent responded to a 911 call placed at 4:30 AM. The deponent states that deponent received a radio transmission of a family assault in progress at 4:35 AM and responded to the scene within five (5) minutes. The Deponent further states that deponent observed David Samuels sweating and in an excited state and that David Samuels informed deponent in sum and substance that Yvette Foster did stab David Samuels in the head with a screwdriver. Deponent further states that David Samuels was bleeding from a cut above his right eyebrow.”

To date, no supporting deposition from David Samuels has been filed.

The People assert that the statements of David Samuels, as set forth in the factual allegations portion of the superceding complaint, are excited utterances which, as exceptions to the hearsay rule, may serve to corroborate a complaint and form the basis of a valid information. The defendant contends that a corroborating affidavit from the complainant is required to convert the accusatory instrument into a valid information based on nonhearsay allegations and that the lack of said affidavit requires dismissal of the instrument on grounds of facial insufficiency pursuant to CPL 170.35 (1) (a) and 100.40 (1) (c). In addition to filing the superceding complaint at the April 26, 2001 calendar call, the assistant district attorney stated her position that the complainant’s excited utterance was sufficient to convert the superceding complaint into an information, and if the court so deemed it that the People would be announcing their readiness for trial. [628]*628The instant motion presents this court with three issues, namely, (1) whether the aforementioned superceding complaint, by virtue of incorporating the complainant’s purported excited utterance, qualifies as a jurisdictionally sufficient information, and if so (2) whether the complainant’s statements to the deponent/arresting officer, as contained in the factual allegations portion of the superceding complaint, satisfy the elements of an excited utterance, and (3) whether the assistant district attorney’s statements on the record on April 26, 2001 which declared the People’s readiness for trial, conditioned upon the court’s acceptance of the superceding complaint as a valid information, was a sufficient indicia of actual and present trial readiness. For the reasons which follow, this court answers all three of these questions in the affirmative.

The first tier of our analysis concerns whether a complainant’s excited utterance which is set forth in a misdemeanor complaint may serve as the basis of a valid information in the absence of a corroborating affidavit. It is axiomatic that for a defendant to be brought to trial on a misdemeanor charge, an information containing a verified statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges must be filed. (CPL 100.15 [3]; People v Dumas, 68 NY2d 729.) An information is facially sufficient if the factual part of the information provides reasonable cause to believe that the defendant committed the offenses charged in the accusatory part of the information and if nonhearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged (see CPL 100.40 [1] [c]; [4] [b]; and People v Alejandro, 70 NY2d 133 [1987]). At issue is whether a recognized exception to the hearsay rule satisfies the nonhearsay requirement for facial sufficiency purposes.

“Hearsay is defined in New York and in most jurisdictions, including the federal courts, as- an out-of-court statement that is offered to prove the truth of the matter asserted in the statement.” (Martin, Capra and Rossi, New York Evidence Handbook § 8.1 [1997]; People v Nieves, 67 NY2d 125; Fed Rules of Evid rule 801 [c].) Black’s Law Dictionary 726 (7th ed 1999) defines hearsay as “testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness.” At the trial level if evidence is hearsay, and no exception to the rule is applicable, the evidence must be excluded upon appropriate objection to [629]*629its admission. (Prince, Richardson on Evidence § 8-101 [Farrell 11th ed 1995].) “The deprivation of the right of cross-examination constitutes the principal justification for the hearsay rule.” (Prince, Richardson on Evidence § 8-102 [11th ed 1995], citing People v Settles, 46 NY2d 154, 166; 5 Wigmore, Evidence §§ 1361, 1362 [Chadboum rev ed].)

There are a number of recognized exceptions to the hearsay rule.

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Cite This Page — Counsel Stack

Bluebook (online)
190 Misc. 2d 625, 740 N.Y.S.2d 567, 2002 N.Y. Misc. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-foster-nycrimct-2002.