On May 15, 2025, the Defendant was arraigned on a misdemeanor complaint charging two counts of Assault in the Third Degree (Penal Law §§ 120.00[1][one count]; 120.00[2][one count]) and one count each of Aggravated Harassment in the Second Degree (Penal Law § 240.30[4]), Attempted Assault in the Third Degree (Penal Law §§ 110/120.00[1]), and Harassment in the Second Degree (Penal Law § 240.26[1]). On July 22, 2025, the People filed a new accusatory instrument off-calendar. At the next court appearance on July 25, 2025, the Defendant objected to this accusatory instrument, asserting that it contains hearsay statements by the complainant. The People argued that the statements are admissible as excited utterances. The Court then directed the parties to file briefs on the issue. The People's brief was filed on August 1, 2025, and the Defendant's brief was filed on August 7, 2025. For the reasons that follow, the Court finds that the complainant's statements do not meet the criteria for the excited utterance exception to the hearsay rule.

The factual portion of the new accusatory instrument alleges that on or about May 11, 2025 at about 12:00 a.m. inside 15 Central Park West in the County and State of New York:

I [Police Officer Lucas Generoso] received a radio run to respond to Mount Sinai Morningside Hospital at approximately 4:48 AM. I arrived at Mount Sinai Morningside Hospital at approximately 5:20 AM.

I entered Mount Sinai Morningside Hospital at approximately 5:32 AM. Inside, I observed a woman, whom I later learned was [Y.J.], lying in a hospital bed wearing a neck brace. I observed that [Y.J.] had a red nose, was holding back tears and was speaking with a shaky voice.

I further observed [Y.J.] state in substance "He can't control his temper. He got really angry and threw me to the ground. My head was on the ground a couple of times and my back hurts horribly bad. I begged him to stop doing this because I have heart problems. I lost consciousness but I remember the back pain."

I then observed [Y.J.] start crying and state in substance "I begged him to please stop because it hurt terribly bad. I said 'I'm dying, please.'" I further observed [Y.J.] state in substance "I'm terribly scared. He dragged me on the ground and slapped my face, pulled my hair, and threw me on the ground a couple of times. The ground is like concrete tile."

I further observed [Y.J.] state in substance that the above-described conduct occurred between approximately 12:00 AM and 1:00 AM.

I further observed [Y.J.] continue to sob.

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution. People v. Case, 42 NY2d 98, 99 (1977). While a criminal action may be commenced by a misdemeanor complaint, absent a waiver by the defendant, an information is required for prosecution of a defendant. See CPL §§ 100.10(1), (4); 170.65(1), (3). That is, the People must have an information before they may validly state ready for trial. This requirement can be met by the filing of one or more supporting depositions that convert the complaint to an information or by the accusatory instrument being replaced or superseded by an information. See CPL §§ 100.20; 100.50; 170.65. Pursuant to CPL § 100.40(1), an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof.

Importantly, the "non-hearsay requirement is met so long as the allegation [in question] would be admissible under some hearsay rule exception (see, Marks et al., New York Pretrial Criminal Procedure § 3.7, at 109 [7 West's NY Prac Series 1996]; see also, People v Belcher, 302 NY 529, 534-535)." People v. Casey, 95 NY2d 354, 361 (2000). In particular, "[a]n out-of-court statement is properly admissible under the excited utterance [hearsay rule] 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). "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 or she makes will be spontaneous and trustworthy." People v. Edwards, 47 NY2d 493, 497 (1979). In determining whether, at the time of his or her statement, a declarant was under a degree of excitement sufficient to prevent the opportunity for contemplation and possible fabrication, the court must be mindful of certain factors. Specifically, the court must consider the nature of the startling event, the period of time between the startling event and the declarant's utterance, and the declarant's condition and activities during that period of time. See id.; People v. Nieves, 67 NY2d 125, 135 (1986).

Here, the complainant undoubtedly describes the nature of the event as a violent altercation. However, independent of her statements, the new accusatory instrument contains no non-hearsay allegations describing the incident or the specific injuries she sustained. Cf. People v. Johnson, 1N.Y.3d at 304-305 (victim's statements deemed excited utterances where police officer observed defendant and victim struggling, saw victim's bleeding eye, and described victim to be very agitated and in pain); People v. Edwards, 47 NY2d at 496 (victim's statements deemed excited utterances where her brother heard her cries for help, forced open apartment door, and found victim with an ice pick in her chest). Importantly, where the defendant's alleged conduct is only established by hearsay allegations, "courts must be especially vigilant" to ensure [*2]that only allegations that "rise[] to the level of 'inherent reliability'" are deemed excited utterances. People v. Johnson, 1 NY3d at 307-308 (internal citations omitted).

Further, the new accusatory instrument sets forth that the alleged incident occurred between approximately 12:00 a.m. and 1:00 a.m. and that the complainant made the alleged statements at approximately 5:32 a.m. It is well settled that "'there can be no definite or fixed limit of time within which the declaration [must] have been made [and that] each case must depend upon its own circumstances.'" People v. Brown, 70 NY2d 513, 518 (1987), quoting People v. Marks, 6 NY2d 67, 72 (1959). That is, "the time for reflection is not measured in minutes or seconds, but rather by the facts." People v. Gantt, 48 AD3d 59, 64 (1st Dep't 2007); see People v. Vasquez, 88 NY2d 561, 579 (1996). Thus, the passage of more than five hours, alone, does not foreclose deeming the complainant's statements excited utterances. See People v. Valentine, 40 Misc 3d 28, 31 (App. Term, 2d Dep't, 2d, 11th & 13th Jud. Dists. 2013)(victim's statement made while outside in the cold without coat or shoes and while crying, screaming, afraid, and hysterical deemed an excited utterance; failure to allege exact amount of time that elapsed between alleged assault and statement not dispositive). However, this is an extended period of time between the alleged incident and the complainant's statements. Cf. People v. Wolfgeorge, 54 Misc 3d 145(A), 2017 NY Slip Op 50259(U) (App. Term, 1st Dep't 2017) (where victim was immediately taken to the hospital after physical attack, statements made at that time while visibly upset qualified as excited utterances); People v. Auleta, 82 AD3d 1417 (3d Dep't 2011) (victim's statements made 10-15 minutes after rape deemed excited utterances where she was hysterical, crying, and shaking, and had collapsed in fetal position on bed); People v. Gantt, 48 AD3d 59, 64 (victim's statements as he lay seriously wounded and bleeding on sidewalk almost immediately after being shot deemed "near-classic" instance of excited utterance). Moreover, there is a paucity of information in the instrument as to the complainant's condition and activities during this time period. Cf. People v. Brooks, 71 NY2d 877 (1988) (victim's statements made to nurse two to two and a half hours after being shot deemed excited utterances where he was critically wounded and in and out of consciousness). Notably, when evaluating the sufficiency of an accusatory instrument, the court may only consider the factual allegations contained within the four corners of the instrument and any supporting depositions. See People v. Hardy, 35 NY3d 466, 475 (2020).

In addition, the Court notes that the alleged incident concluded many hours before the complainant made her statements and the statements were made in narrative form and away from the scene of the alleged incident. See People v. Johnson, 1 NY3d at 307 (victim's statements not excited utterances where made in narrative form at hospital one hour after startling event while he was more relaxed, despite pain); People v. Firu, 69 Misc 3d 1 (App. Term, 2d Dep't, 2d, 11th & 13th Jud. Dists. 2020) (victim's statements not excited utterances where made 10 minutes after startling event concluded and away from scene); cf. People v. Hayes, 21 Misc 3d 131(A), 2008 NY Slip Op 52089(U) (App. Term, 1st Dep't 2008) (witness's statements deemed excited utterances where made while he pursued defendant who had struck a pedestrian with a vehicle within previous 15 minutes).

Accordingly, the circumstances here do not support a finding that the complainant was still under the stress of excitement and did not have an opportunity for studied reflection and possible fabrication when she made her statements. Therefore, the Court finds that the complainant's statements do not constitute excited utterances. As the non-hearsay allegations in the new accusatory instrument, on their own, do not establish the elements of the charged [*3]offenses, the instrument is not an information capable of replacing the original misdemeanor complaint. See CPL § 170.65. Thus, the new instrument is a nullity, and the original misdemeanor complaint remains the accusatory instrument pending against the Defendant. See People v. Severino, 47 Misc 3d 1229(A), 2015 NY Slip Op 50891(U), *3 (Crim. Ct., NY County 2015).^[FN1] The original misdemeanor complaint is sworn to by Detective Ramon Santos, wherein he attests that he was informed of allegations by Police Officer Christopher McGrath, who, in turn, was informed of allegations by the complainant. Because supporting depositions from Officer McGrath and the complainant were never filed, the original misdemeanor complaint remains unconverted.

The Defendant's brief contains a motion to reserve the right to make further motions. This motion is denied subject to the extent permitted by CPL § 255.20.

The foregoing constitutes the opinion, decision, and order of the Court.