The defendant is charged with two counts of Assault in the Third Degree (PL §§ 120.00[1][one count]; 120.00[2][one count]) and one count of Harassment in the Second Degree (PL § 240.26[1]).

The defendant, in an omnibus motion, seeks: (1) dismissal of the two counts of Assault in the Third Degree for facial insufficiency, (2) suppression of statement evidence, (3) a voluntariness hearing, (4) an order precluding statement and identification testimony, (5) a Sandoval hearing, and (6) reservation of rights.

The defendant's omnibus motion is decided as follows:^[FN1]

The defendant moves to dismiss the two counts of Assault in the Third Degree for facial insufficiency pursuant to Criminal Procedure Law (CPL) §§ 170.30 (1)(a) and 170.35. For the [*2]reasons stated herein, the defendant's motion is denied.

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. " Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10(2). Importantly, this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v Henderson, 92 NY2d 677, 680 (1999). That is, "[s]o 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 NY2d 354, 360 (2000); see People v Kalin, 12 NY3d 225 (2009).

The factual portion of the instant accusatory instrument alleges that on June 14, 2011 at about 5:00 a.m. in front of 1789 Amsterdam Avenue in the County and State of New York:

Deponent [Police Officer Theodore Steixner] states that upon arriving at the above described address, deponent observed Jair Martinez, of an address known to the District Attorney's Office, to be hysterical in that Mr. Martinez, was flailing his hands around as he was talking, Mr. Martinez was crying as he was talking, at one point as Mr. Martinez was crying he threw his hat onto the ground, Mr. Martinez was speaking quickly and in an elevated tone and he stated in substance in the presence of deponent, LOOK WHAT HE DID TO ME, HE PUNCHED ME.

Deponent further states that deponent escorted Mr. Martinez into the apartment building at the above address and when deponent got to apartment 4C, once the door was open, deponent observed Mr. Martinez lift his hand and point his finger at defendant and deponent observed defendant standing in front of Mr. Martinez.

Deponent further states that deponent observed Mr. Martinez to have multiple large marks on his back, which deponent knows based on his training and experience and from seeing similar markings before, were caused by a person biting their teeth into Mr. Martinez's skin.

Deponent further observed Mr. Martinez to have multiple bumps, bruising, swelling, redness, lacerations and scratches to his head, face, and back.

Deponent further observed Mr. Martinez was bleeding from the back of his head and from his face.

Deponent further observed Mr. Martinez moaning, which deponent knows based on his training and experience a person with wounds, such as the Mr. Martinez's does when in state of discomfort, distress and pain.

Deponent further observed defendant to not have lacerations on most of his body, nor did he have [*3]redness, swelling, bleeding or bruising to his body, except for on defendant's hands, knuckles, and fingers.

Deponent is informed by Jair Martinez, of an address known to the District Attorney's Office, that informant observed defendant swing defendant's closed fist and strike informant about the head, face, and body and defendant bit informant about the back, causing deponent pain.

At the outset, the court notes that, when assessing an accusatory instrument for facial sufficiency, 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, 99 N.E.2d 874)." People v Casey,95 NY2d at 361. In particular, an out-of-court statement is admissible under the excited utterance hearsay rule exception when it is made under the stress of excitement brought about by an external event and is not the product of studied reflection. See 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 makes will be spontaneous and trustworthy." People v Edwards, 47 NY2d 493, 497 (1979). In determining whether, at the time of his 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 People v Nieves, 67 NY2d 125, 135 (1986); People v Edwards, 47 NY2d at 497. Importantly, however, "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." People Johnson, 1 NY3d at 306; see People v Nieves, 67 NY2d at 135. That is, " the time for reflection is not measured in minutes or seconds, but rather is measured in facts.'" People Johnson, 1 NY3d at 306, quoting People v Vasquez, 88 NY2d 561, 579 (1996).

Here, the accusatory instrument fails to specifically allege how much time passed between the alleged assault upon the complainant and the complainant's alleged statement to Officer Steixner. However, it is alleged that the complainant was flailing his hands and crying while speaking quickly and in an elevated tone, had suffered bumps, bruising, swelling, redness, lacerations, scratches and bite marks to his body, was bleeding from the back of his head and from his face, and was moaning. It is reasonable to infer from these allegations that the complainant had recently sustained his injuries. Further, upon considering the nature of the alleged event, namely a physical attack upon the complainant, and the complainant's alleged physical and emotional condition at the time of his statement to Officer Steixner, when viewed in a light most favorable to the People, it is a reasonable inference at the pleading stage that the complainant's statement was made under the stress of excitement such that he was not capable of studied reflection and possible fabrication. The defendant's claim that the complainant was intoxicated at the time he made the statement to Officer Steixner is not borne out by the allegations, and his contention that the complainant's statement was untrustworthy as a result of any such intoxication is a matter appropriately left for the trier of fact. As such, this court finds that, for pleading purposes, the allegations lay a foundation for admission [*4]of the complainant's statement as an excited utterance. See generally People v Harris, 32 Misc 3d 1215(A) (Crim Ct, Queens County 2011).

Taking the complainant's statement along with the remaining non-hearsay allegations in a light most favorable to the People, this court finds them sufficient to establish each essential element of Assault in the Third Degree under Penal Law §§ 120.00[1] and 120.00[2]. Penal Law § 120.00(1) provides that a person is guilty of Assault in the Third Degree when "with intent to cause physical injury to another person, he causes such injury to such person or to a third person." Under Penal Law § 120.00(2), a person is guilty of Assault in the Third Degree when . . . [h]e recklessly causes physical injury to another person." Penal Law § 10.00(9) sets forth that " [p]hysical injury' means impairment of physical condition or substantial pain." See also People v Henderson, 92 NY2d at 680. Notably, the issue of "whether the substantial pain' necessary to establish an assault charge has been proved is generally a question for the trier of fact." People v Rojas, 61 NY2d 726, 727 (1984), citing Matter of Philip A., 49 NY2d 198, 200 (1980). As the Court of Appeals has noted, " substantial pain' cannot be defined precisely" and, although "it is more than slight or trivial pain . . . [, it] need not . . . be severe or intense . . . ." People v Chiddick, 8 NY3d 445, 447 (2007). In reaching a determination as to whether pain is sufficiently substantial to satisfy this element of Assault in the Third Degree, the subjective reaction of the victim is just one factor for the trier of fact to consider. See People v Rojas, 61 NY2d at 727-28. That is, "sometimes an objective account of the injury, unaccompanied by testimony about the degree of pain the victim experienced, will be enough." People v Chiddick, 8 NY3d at 447. Accordingly, this court finds the allegations that the complainant had bumps, bruising, swelling, redness, lacerations, scratches and bite marks on his body, was bleeding from the back of his head and from his face, and was moaning to be sufficient at the pleading stage to establish "physical injury." See People v Henderson, 92 NY2d at 680.

Also, the allegations, taken as true, are sufficient to establish the requisite mental states of Intentional Assault in the Third Degree and Reckless Assault in the Third Degree. The allegations, when viewed in a light most favorable to the People, would permit a reasonable trier of fact to conclude that the defendant had intended to injure the complainant (see People v Bracey, 41 NY2d 296, 301 (1977) ["intent can . . . be inferred from the defendant's conduct and the surrounding circumstances.'"]), or acted recklessly when he caused physical injury to the complainant.

Contrary to the defendant's contentions, it is reasonable to infer at the pleading stage that the defendant is the person who allegedly caused the complainant's injuries. Although the complainant did not state the defendant's name when he told Officer Steixner "he punched me", the complainant thereafter went with Officer Steixner to the apartment where the defendant was located and pointed at the defendant. Also, Officer Steixner observed that, unlike the complainant, the defendant did not have redness, swelling, bleeding or bruising to his body, except to his hands, knuckles, and fingers. It is reasonable to infer that the defendant's injuries were the result of his alleged assault of the complainant.

Additionally, the defendant's claim that the non-hearsay requirement is not met is unpersuasive. Although the final paragraph of the accusatory instrument contains hearsay, the allegations in that paragraph are not necessary to establish each essential element of the charged offenses. Rather, the remaining non-hearsay allegations, if true, sufficiently support the elements of each charge. See CPL § 100.40(1)(c); People v Casey, 95 NY2d 354. As such, the hearsay allegations in the final paragraph constitute surplusage and are not necessary for pleading purposes. [*5]Thus, the accusatory instrument was properly deemed an information. See generally People v Barker, 238 NYLJ 110 (Crim Ct, New York County 2007); People v Brown, 15 Misc 3d 1143(A) (Crim Ct, New York County 2007).

Accordingly, the defendant's motion to dismiss the two counts of Assault in the Third Degree for facial insufficiency is denied.

The branch of the defendant's motion that is to suppress evidence of statements allegedly made by the defendant to law enforcement personnel (CPL § 710.20[3]) is granted to the extent that a Huntley/Dunaway hearing is ordered to be held before trial. CPL § 710.60(4). The motion to suppress such statements is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.

The branch of the defendant's motion that is to suppress evidence of unnoticed statements on the ground that such statements were involuntarily obtained (CPL § 710.20[3]) is denied, with leave granted for the defendant to renew this branch of the motion upon learning that the People intend to introduce such evidence at the defendant's trial.

MOTION TO PRECLUDE STATEMENT AND IDENTIFICATION EVIDENCE

The branch of the defendant's motion that is to preclude evidence of unnoticed statements or identification procedures (CPL § 710.30[3]) is denied, with leave granted for the defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at the defendant's trial.

The branch of the defendant's motion that is to preclude the People from introducing, for the purpose of impeaching the defendant's credibility at trial, evidence of the defendant's prior uncharged criminal, vicious or immoral acts is granted to the extent that the People are directed to provide written notice to the defendant of all such acts, if any, that they intend to introduce at the defendant's trial (CPL § 240.43) no later than three days prior to jury selection (excluding Saturdays, Sundays, and court holidays). The defendant is granted leave to renew the branch of this motion that is for a Sandoval hearing upon receiving such notice.

The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3).

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

Dated:October 28, 2011

New York, New York

E N T E R:

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______________________________Tamiko Amaker, J.C.C.