The People of
the State of New York
against
Alpha Balde, Defendant.
|
2014BX060657
Defense Counsel
Maxwell Kampfner, Esq.
The Bronx Defenders
360 East 161st Street
Bronx, New York 10451
The People
William Browne, Esq.
Assistant District Attorney
Bronx County District Attorney Office
198 East 161st Street
Bronx, New York 10451
Jeanette Rodriguez-Morick, J.
Defendant Alpha Balde ("Defendant") stands charged with assault in the third degree
(Penal Law § 120.00 [1]), aggravated harassment in the second degree (id.
§ 240.30 [4]), and harassment in the second degree (id. § 240.26 [1]).
He moves to dismiss the accusatory instrument for facial [*2]insufficiency, pursuant to CPL 170.30, 170.35, and
100.40.
For the reasons that follow, Defendant's motion is GRANTED.
Background [FN1]
At about 10:40 a.m. on November 13, 2014, police officers received a radio
run of an assault in progress at a Bronx address. Responding to that location twenty
minutes later, the officers observed complainant, Aniqueka Richards ("Complainant"),
crying hysterically, wearing no pants, and bearing a red bruise on the side of her face.
The Complainant explained to the officers, "WE GOT INTO AN ARGUMENT. HE
PULLED MY HAIR AND PUNCHED ME IN THE FACE. IT HURT. WE HAVE A
KID TOGETHER. I WANT TO PRESS CHARGES," and identified Defendant as the
man who had hit her, i.e., the father of her child. Defendant then stated to the officers:
"WE GOT INTO A HEATED ARGUMENT. IT STARTED TO GET REALLY
HEATED, SO I WALKED AWAY."
Analysis
To be facially sufficient, the factual allegations of an accusatory instrument
must provide reasonable cause to believe that the defendant committed the crimes
asserted therein (CPL 100.40 [1] [b]). The accusatory instrument must include
non-hearsay allegations of fact that, if true, establish "every element of the offense
charged and the defendant's commission thereof" (id. 100.40 [1] [c]). Generally, a
deficiency as to the factual allegations supporting the elements of the crime entitles a
defendant to dismissal on the ground that the information is defective (id. 170.30
[1] [a]; 170.35 [1] [a]).
Defendant's contentions boil down to the following:
(1)the declarations at issue here are inadmissible as excited utterances;
(2)People v Casey, 95 NY2d 354 (2000), which held that hearsay
exceptions can be used to satisfy CPL 100.40 (1) (c)'s non-hearsay requirement, has been
abrogated by Crawford v Washington, 541 US 36 (2004); and
(3)the "non-hearsay allegations," required by CPL 100.40 (1) (c), cannot be
satisfied by allegations admissible under hearsay exceptions.
(See Mem of Law passim.)
Out-of-court declarations are considered excited utterances—and thus
excluded from the rule against hearsay—when made "under the stress of
excitement caused by [*3]an external [startling or
traumatic] event, and not the product of studied reflection and possible fabrication" (People v Johnson, 1 NY3d
302, 306 [2003]). Whether a declaration falls within this category of admissible
hearsay turns on various factors: (1) the nature of the event; (2) the amount of elapsed
time between the event and the declaration; (3) the declarant's activities between the
event and the declaration; (4) the declarant's opportunity to deliberate, if any, such that he
or she could deviate from the truth; and (5) whether the circumstances indicate that the
declarant made the statements under the impetus of studied reflection (People v Diaz, 21 AD3d
58, 65-66 [1st Dept 2005], citing People v Vasquez, 88 NY2d 561, 579
[1996], People v Edwards, 47 NY2d 493, 497 [1979]).
The circumstances here suggest that Complainant's statements were the
product of reflection and, therefore, not excited utterances. Twenty minutes had elapsed
between the transmission of the radio run and the officers' arrival on scene. Although the
duration of elapsed time alone is not controlling (see Johnson, 1 NY3d at 306),
the nature of Complainant's statement, "I WANT TO PRESS CHARGES," reflects that
the lapse of time provided to Complainant the "the opportunity to deliberate and depart
from the truth" (People v
Gantt, 48 AD3d 59, 64 [1st Dept 2007] [internal quotation marks omitted])
because it shows that Complainant was aware that her statements could be used in a
future criminal prosecution. Such an awareness runs counter to a finding that
Complainant remained under the stress of the assault such that "any utterance [s]he
ma[d]e [would have been] spontaneous and trustworthy" (see id. [brackets
added]).
Defendant's remaining contentions—i.e., that People v Casey
was abrogated by Crawford v Washington and that CPL 100.40 (1) (c)'s
non-hearsay requirement cannot be satisfied by non-corroborated hearsay
allegations—are without merit for reasons discussed at length by this court in People v Torres, 46 Misc 3d
1205(A), 2014 NY Slip Op 51897(U) (Crim Ct, Bronx County 2014).
Accordingly, Defendant's motion to dismiss is granted.
This constitutes the Decision and Order of the Court.
Dated: May 4, 2015
Bronx County, New York
SO ORDERED:
____________________________
Jeanette Rodriguez-Morick
Judge of the Criminal Court
Footnotes
Footnote 1:For purposes of this
motion, the court is required to presume the factual allegations to be true (People v Jackson, 18 NY3d
738, 741 [2012]; CPL 100.40 [1] [c]) and must "draw reasonable inferences from all
the facts set forth in the accusatory instrument" (see Jackson, 18 NY3d at 747).