PEOPLE v. ANGEL (2019)

I.

By motion dated and submitted to the court on April 5, 2019 (“Dismissal Motion”), the Defendant moved to dismiss the accusatory instrument for facial insufficiency pursuant to CPL 170.30 (1)(a), 170.35 (1)(a), and 100.40. The People have submitted an opposition (“Opposition Motion”) filed and dated April 22, 2019 to Defendant's Dismissal Motion.

By misdemeanor complaint (Docket No. CR-002012-19KN) filed on January 15, 2019 (“Jan. Complaint”), the Defendant was charged and arraigned in Kings County Criminal Court on one count of assault in the third degree (Penal Law § 120.00 [1]), one count of attempted assault in the third degree (§§ 110, 120.00 [1]), one count of menacing in the third degree (§ 120.15) and one count of harassment in the second degree (§ 240.26 [1] ). These charges were based on allegations of A. Patadopoulos to NYPD Police Officer Christian Angeron that on January 14, 2019 at approximately 7:40 PM at [XXX] Lexington Avenue, Kings County, New York (“Location”), the Defendant D. Angel struck the complaining witness A. Patadopoulos' nose with his head causing her “head to hit a wall.”

On January 18, 2019, the People filed and served a Domestic Incident Report (“DIR”) and moved to convert the Jan. Complaint into an information. Judge Ambekar ruled that the DIR was insufficient to convert the Jan. Complaint because the name on the DIR was listed as “[A.] Sophie” but not “[A.] Patadopolous.”

On March 1, 2019, the People served and filed a superseding instrument dated February 28, 2019, together with the recording of the 911 calls and an “I/Net Dispatcher Event Chronology.” The superseding instrument retained the same charges in the original complaint but relied on the statements of Assistant District Attorney Barbara Ciceron rather than Ms. Patadopoulos for the factual portion of the accusatory instrument. The Defendant was arraigned on the superseding instrument, and Judge Ambekar deemed all charges converted. Upon defense counsel's objection, Judge Ambekar directed defense counsel to supplement his/her oral application in writing.

The factual allegations of the superseding instrument alleged, in pertinent part, that on January 14, 2019, at approximately 7:49 PM at the Location, Legal Assistant Barbara Ciceron was “informed by the annexed 911 recordings made, at the above time and place by a female caller who while crying states in sum and substance, ‘I need an ambulance, please help me, I broke my nose. Please help me. I broke my nose so bad. Please. Please. It hurts. Please, Sir, it's bleeding a lot. My boyfriend just did this to me and I need you to just help me. Please help. I am scared right now. His name is [D.] Angel. He hit me five seconds ago. He hit me with his head. He headbutt [sic] me.’ ”

The superseding instrument further alleged that Ms. Ciceron requested the 911 call while performing her duties as an Assistant District Attorney and that the 911 request generated the attached 911 call record. In addition, the superseding instrument stated that Ms. Ciceron was informed by the sworn statement of Melinda Woods, who is an employee of the New York City Police Department Communications Division, Tape and Records Unit, and in that capacity was the custodian of the 911 records. Ms. Woods said the records were kept and maintained in the ordinary course of business and are an accurate version of the 911 call made at the above time and place.

The superseding information also states that Ms. Ciceron was informed by Police Officer Christian Angeron that shortly after the above time, Officer Angeron responded to the Location where he observed a female with a laceration and a bruised and swollen nose. He later learned her name to be A. Patadopolous. Officer Angeron also observed the Defendant at the Location. A signed supporting deposition by Officer Angeron was filed and served with the superseding instrument.

II.

The Defendant maintains that the superseding accusatory instrument is facially insufficient because it contains hearsay; that the inclusion of the “911 recordings fails to satisfy the foundational requirements for an excited utterance” (Opposition Mot. at 7). In particular, the Defendant argues that based on the 911 calls the complaining witness did not identify the Defendant as her assailant until four (4) minutes and forty-six (46) seconds after she had initially stated that she had broken her own nose. According to the Defendant, this duration of time is indicative of the complaining witness' untrustworthiness and possible fabrication, and thus according to the Defendant, the superseding complaint remains unconverted.

The People contend that the statements of the complaining witness A. Patadopolous, as set forth in the 911 call and incorporated in the factual allegations portion of the superseding accusatory instrument, are excited utterances which, as exceptions to the hearsay rule, serve to corroborate and form the basis of a valid superseding accusatory information because they contain admissible hearsay (excited utterance) in compliance with the requirements of CPL §§ 100.15 and 100.40.

In addition, the record of the 911 call is maintained in the ordinary course of business and therefore is admissible pursuant to the business record exception (CPLR § 4518; People v. Buie, 86 NY2d 501, 506 [1995]).

III.

To be legally sufficient on its face, an information, together with any supporting deposition, must allege “facts of an evidentiary character” (CPL § 100.15 [3]), “[demonstrate] reasonable cause to believe that the defendant committed the crime charged” (§ 100.40 [4] [b]; People v. Dumas, 68 NY2d 729, 731 [1986]), and be supported by “non-hearsay allegations,” establishing “if true, every element of the offense charged and the defendant's commission thereof’ ” (CPL §§ 100.15 [3], 100.40 [1] [c]; People v. Alejandro, 70 NY2d 133, 133 [1987]). The information must also contain factual allegations that give the accused “notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense” (People v. Casey, 95 NY2d 354, 360 [2000]). Additionally, when assessing the facial sufficiency of an accusatory instrument, the court must view the facts “in the light most favorable to” the People (People v. Contes, 60 NY2d 620, 621 [1983]).

Hearsay is defined as an out-of-court statement during the course of trial that is offered to prove the truth of the matter asserted in the statement (Richard T. Farrell, Prince, Richardson on Evidence, § 8-101 at 194 [1995] ). Hearsay is admissible under the excited utterance exception where the statement was made “before there has been time to contrive and misrepresent” (People v. Brown, 70 NY2d 513, 518 [1987]). “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” (People v. Johnson, 1 NY3d 302, 306 [2003]).

Here, although the complaining witness' statements to the 911 operator were hearsay, they are nevertheless admissible under the exception for excited utterances as they were made shortly after a physical attack and while the complaining witness was in continued pain from an inflicted injury. The Defendant focuses exclusively on the time elapsed (four minutes and forty-six seconds) from when the complaining witness initially started the 911 call to her statement that it was the Defendant who assaulted her; and argues that the duration is “indicative of studied reflection so that trustworthiness cannot be inferred” (Dismissal Mot. at 8). In Brown, the New York Court of Appeals ruled that “there can be no definite or fixed limit of time” in assessing whether a statement is an excited utterance (70 NY2d at 518). Indeed, in Brown, the excited utterance was made thirty minutes after the event (id. at 515). Based on the totality of complaining witness' statements to the 911 operator in which she cried and pleaded for help, it is clear that the complaining witness was still under the influence of an exciting event and that the stress of the event had not worn off given the short period of time. Accordingly, this Court finds that the complaining witness' statements, as incorporated in the superseding complaint, were made almost immediately after a stressful event and qualify as an excited utterance. In addition, the 911 call record is a business record exception to the hearsay rule (CPLR § 4518; Buie, 80 NY2d at 506).

Moreover, the surrounding circumstances, including the authentication of the 911 calls and the sworn observations of Police Officer Angernon, established that the non-hearsay requirement for facial sufficiency purposes was met.

IV.

Defendant's Dismissal Motion is denied in its entirety.

This constitutes the DECISION and ORDER of the Court.

“Wendy” Changyong Li, J.