Can medical records in which the complainant in a domestic violence case identifies the defendant as the person who attacked her serve to convert a Misdemeanor Complaint into an Information? The law is clear that they can. Nevertheless, here, although the case was converted within 90 days, the People did not answer "ready" for trial within 90 days. Accordingly, since there are 96 chargeable days, defendant's motion to dismiss pursuant to CPL § 30.30 is GRANTED. Sealing is stayed for 30 days.

On or about June 11, 2014, the complainant reported to a police officer that the defendant, her boyfriend, struck her in the face several times with his fists. When she made the report, she was agitated and crying, and the officer saw that her face was swollen, bruised and red. She reported experiencing substantial pain to her face.

Defendant was arraigned on June 13, 2014, on a Misdemeanor Complaint charging him with Assault in the Third Degree, in violation of Penal Law § 120.00(1), Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(4), Attempted Assault in the Second Degree, in violation of Penal Law §§ 110/120.00(1), and Harassment in the Second Degree, in violation of Penal Law §240.26(1).

Defendant was released on his own recognizance, and the case was adjourned to July 10, 2014, for conversion. The People did not have a Supporting Deposition on July 10, and the Court rejected their request that it deem the Misdemeanor Complaint an Information by finding that the statements attributed to the complainant therein were excited utterances. The Court adjourned the case to September 17, 2014, for conversion. By then, some 96 days would have elapsed since defendant's arraignment. The Court [*2]correctly noted that the case would likely be past 30.30 on September 17.

On September 3, 2014, 82 days after arraignment, the People filed, off-calendar, a Superseding Information ("SSI"), and the complainant's medical records. However, the People did not file a Certificate of Readiness at that time.

On September 17, 2014, defendant moved to dismiss pursuant to CPL § 30.30(1)(b). The People opposed the motion. The Court heard oral argument and reserved decision. The matter has been sub judice since then.

The Misdemeanor Complaint, sworn out by Police Officer Carlise Almonte, provides that, on or about June 11, 2014:

The Superseding Information, sworn out by Police Officer Anthony Sinacori on September 2, 2014, provided that:

The medical records, filed along with the Superseding Information contain, inter alia, the following statements attributed to the complainant describing the nature of her injuries, how they were caused, and who caused them.

1. Under the heading "ED [sic, for Emergency Department] Triage Notes":

2. Under the heading "Assessment/Plan":

4. Under the Heading "ED Nursing Notes":

The records also reveal that the hospital arranged for a social worker to speak with the complainant to discuss a safe way of returning home to retrieve her belongings, and for a sexual assault and violence intervention specialist to follow up with her.

The records are accompanied by a certification dated August 28, 2014.

Defendant is charged with "at least one ... misdemeanor punishable by a sentence of imprisonment of more than three months." CPL § 30.30(1)(b). Thus, his motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. Id. Since 96 days elapsed without the People announcing their readiness for trial, defendant's motion to dismiss pursuant to CPL § 30.30 is granted.

An Information must contain "[n]on-hearsay allegations ... [that] establish, if true, every element of the offense charged and the defendant's commission thereof." CPL 100.40(1)(c). While ordinarily this requires either a first-party instrument or a third-party instrument that is corroborated by a Supporting Deposition, see CPL § 100.20, it is beyond dispute that a statement that meets the criteria for an exception to the hearsay rule, such that it would be admissible at trial, can be a "non-hearsay" allegation in a pleading, thus satisfying CPL § 100. 40(1)(c). People v. Previl, 21 Misc 3d 914, 864 N.Y.S.2d 906 (Crim. Ct. Kings County 2008) (business records); People v. Leyva, 19 Misc 3d 498, 856 N.Y.S.2d 452 (Crim. Ct. NY County 2008) (declaration against penal interest); People v. Heller, 80 Misc 2d 160, 689 N.Y.S.2d 327 (Crim. Ct. NY County 1998) (admission of party opponent); People v. Reyes, 43 Misc 3d 1225(A), 2014 WL 2438432 (Crim. Ct. NY County 2014) (excited utterance).

New York State recognizes a business records exception to the hearsay rule. CPLR 45218(a). Hospital records have long been included within the business records exception, as long as the portion of the record that is admitted is germane to the patient's diagnosis or treatment. See, e.g., Williams v. Alexander, 309 NY 283, 129 N.E.2d 417 (1955) ("the only memoranda that may be regarded as within the section's compass are those reflecting acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects of ... [the particular patient's] [*5]hospitalization.") (internal quotation marks omitted; alterations in original).

The admission of medical records is generally uncontroversial when those records are proffered to describe the cause or nature of a person's injuries or the necessary treatment. People v. Ortega, 15 NY3d 610, 620, 942 N.E.2d 210, 216, 917 N.Y.S.2d 1, 7 (2010). However, given this limitation, the portions of medical records that identify the person who caused the patient's injuries are not ordinarily admissible under this rule. E.g., Howard v. McGinnis, 632 F. Supp. 2d 253, 270-71 (W.D.NY 2009). Nevertheless, there are some cases where identifying the perpetrator is relevant to the patient's treatment. In cases of domestic violence, it is "relevant for purposes of diagnosis and treatment that complainant's assault was at the hands of a ... boyfriend." Ortega, 15 NY3d at 619, 942 N.E.2d at 216, 917 N.Y.S.2d at 6.

It follows that, at least in a domestic violence case, medical records that identify the victim's family member as the perpetrator, if relevant to the victim's treatment plan, are not hearsay. Indeed, in People v. Swinger, 180 Misc 2d 344, 689 N.Y.S.2d 336 (Crim. Ct. NY Co 1998), the court held that medical records in which a victim of domestic violence identified her husband as the perpetrator were admissible under the business records exception, and hence constituted nonhearsay allegations that rendered the Information facially sufficient.

The same is true here. The medical records proffered by the People reveal that the complainant did indeed identify the defendant as the person who caused her injuries. They also reveal that this information was material to the complainant's treatment, as the hospital used this information to develop a plan for the complainant's emotional well being and physical safety.Accordingly, the combination of the S.S.I. and the complainant's medical records meet the definition of an Information contained in CPL § 100.40(1)(c), and the People did indeed file an Information on September 3, 2014, some 82 days after arraignment.

Nevertheless, even though the People filed an Information within 90 days of arraignment, the case must still be dismissed. CPL § 30.30(1)(b) requires the People to answer ready within 90 days of arraignment, not merely to file an Information within 90 [*6]days of arraignment: "Conversion to an information does not stop the clock; answering ready for trial does." People v. Woods, 21 Misc 3d 1105(A) at *2, 873 N.Y.S.2d 236 (Crim. Ct. NY County 2008). See also People v. Williams, 86 Misc 2d 47, 715 N.Y.S.2d 300 (Crim Ct NY County 2000) (same). Here, while the documents the People filed on September 3, 2014, constituted a valid Information, those documents were not accompanied by a statement of readiness, and no statement of readiness was filed within 90 days of arraignment. Accordingly, since the speedy trial clock did not stop until defendant moved to dismiss, see CPL § 30.30(4)(a), by which time 96 days had elapsed, the case must be dismissed.

Since 96 days of pre-readiness speedy trial time must be charged to the People, defendant's motion to dismiss is granted. Sealing is stayed for 30 days.

This constitutes the Decision and Order of the Court.