Criminal Court of the City of New York, Bronx County, January 9, 2020

Legal Aid Society, Bronx (Willoughby Jenett of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Clair Pelella of counsel), for plaintiff.

Defendant is charged in the accusatory instrument with one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), one count of leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 [1] [a]) and one count of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). The accusatory information sets forth, in pertinent part, that

"P.O. Alex Hutt . . . states that on or about June 6, 2019 at approximately 9:30 P.M. in front of 3016 Webster Avenue, county of the Bronx . . . he observed John Estrellado on the ground next to a 2019 Indian motorcycle . . . [P.O. Hutt] further states that said motorcycle's exhaust pipe and frame were scratched. [P.O. Hutt] further stated that John Estrellado pointed to a green Chevrolet and stated in sum and substance HE HIT ME. [P.O. Hutt] further states that he observed said vehicle driving away from above location.

"[P.O. Hutt] is further informed by Officer Michael Savastano . . . that he observed defendant operating a 1998 green Chevrolet van . . . in that he observed defendant seated [*2]behind the steering wheel, keys in the ignition, engine running, headlights on and moving along a public roadway. [P.O. Hutt] is further informed that [Officer Savastano] observed defendant driving at a rate of speed in excess of the speed limit.

"[P.O. Hutt] is further informed by [Officer Savastano] that he observed the defendant to have{**67 Misc 3d at 307} bloodshot, watery eyes, swaying balance, and a strong odor of alcoholic beverage on his breath. [P.O. Hutt] is further informed by [Officer Savastano] that defendant had urine on his pants. [P.O. Hutt] further states that he was present at the administration of a chemical test analysis of defendant's breath, and defendant refused to take the test."

Defendant now moves to dismiss count 2 of the accusatory instrument, leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 [1] [a]) for facial insufficiency. Defendant claims that without a supporting deposition from the witness, John Estrellado, the accusatory instrument fails to establish with nonhearsay allegations the elements of the offense. Specifically, defendant claims that there are no nonhearsay allegations to support that he knew or should have known that he was in a motor vehicle accident.

The People, in opposition to defendant's motion to dismiss, contend that the statement, "He hit me," made by John Estrellado as contained in the accusatory instrument is an "excited utterance" which as an exception to the hearsay rule establishes, together with the other allegations in the complaint, the necessary statutory elements of the offense of leaving the scene of an incident without reporting.

In response to the People's affirmation in opposition, defendant claims in his surreply that there are no facts alleged in the accusatory instrument to support the prosecutor's assertion that John Estrellado's statement, "He hit me," was an excited utterance.

Defendant's motion to dismiss count 2 of the accusatory instrument for facial insufficiency is decided as follows:

In order for a misdemeanor information to be sufficient on its face it must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged (CPL 100.15 [3]; 100.40 [1] [b]; 70.10). These facts must be supported by nonhearsay allegations which, if true, establish every element of the offenses charged (see CPL 100.40 [1] [c]; People v Henderson, 92 NY2d 677 [1999]). Reasonable cause 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{**67 Misc 3d at 308} was committed and that such person committed it" (CPL 70.10 [2]). An information which fails to satisfy these requirements is jurisdictionally defective (see CPL 170.35; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986]).

The People bear the burden of satisfying the facial sufficiency requirements by doing so within the "four corners" of the accusatory instrument (see People v Jones, 9 NY3d 259 [2007]; People v Thomas, 4 NY3d 143 [2005]; People v Liranzo, 46 Misc 3d 140[A], 2015 NY Slip Op 50138[U] [2015]). In evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the People and consider all favorable inferences drawn therein (see People v Williams, 84 NY2d 925 [1994]; People v Contes, 60 NY2d 620 [1983]; People v Barona, 19 Misc 3d 1122[A], 2008 NY Slip Op 50814[U] [2008]; People v Mellish, 4 Misc 3d 1013[A], 2004 NY Slip Op 50869[U] [2004]).

Although mere conclusory allegations are insufficient (see People v Dumas) an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v Mills, 1 NY3d 269 [2003]; People v Bello, 92 NY2d 523 [1998]; People v Mayo, 36 NY2d 1002 [1975]). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see People v Kasse, 22 NY3d 1142 [2014]; People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d 354 [2000]). Further, the facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt (see People v Jennings, 69 NY2d 103 [1986]).

Vehicle and Traffic Law § 600 (1) (a), leaving the scene of an incident without reporting, provides, in pertinent part, that

"[a]ny person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property, not including animals, of another, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage occurred, stop, exhibit his or her license and insurance identification card for such vehicle . . . and give his or her name, residence . . . [and] {**67 Misc 3d at 309}insurance carrier."

There are several recognized exceptions to the rule against hearsay including the "excited utterance" exception.

"An extrajudicial statement will be admitted under the excited utterance exception to the hearsay rule when it relates to a startling event and is made while the declarant remains under the stress of excitement caused by the startling event . . . . Such statements are considered intrinsically reliable by virtue of the fact that when a declarant speaks under the influence of such stress or excitement, his or her reflective capacity, and thus the ability to fabricate, is stilled" (People v Gantt, 48 AD3d 59, 63 [2007], citing People v Johnson, 1 NY3d 302 [2003] and People v Nieves, 67 NY2d 125 [1986]).

"Since the utterance is made as a direct result of sensory perception during that brief period when considerations of self-interest cannot be immediately brought to bear, the declaration may be admitted into evidence as expressing the true belief of the declarant as to the facts observed" (People v Edwards, 47 NY2d 493, 497 [1979]). Whether a statement is admissible under the excited utterance exception is "a determination to be made, in the first instance, by the trial court after consideration of all the circumstances" including "the physical, psychological, and emotional condition of the declarant" (People v Brown, 70 NY2d 513, 520, 522 [1987]).

"The test for admission of such a statement is whether the declarant was 'so influenced by the excitement and shock of the event that it is probable that he or she spoke impulsively and without reflection' " (People v Gantt, 48 AD3d at 63, citing{**67 Misc 3d at 310} People v Caviness, 38 NY2d 227, 231 [1975]). "[I]n order to qualify as an excited utterance, a statement must be 'made contemporaneously or immediately after a startling event which affected or was observed by the declarant, and relate to the event' " (People v Almonte, 33 NY3d 1083, 1097 [2019]). "The spontaneity of a declarant's statement is measured by the surrounding facts and cannot be determined simply by reference to the amount of time that transpired between the event and the statement" (People v Nieves, 67 NY2d at 135). To determine whether a statement constitutes an "excited utterance" the court must consider (1) the nature of the startling or traumatic event; (2) the amount of time between the startling event and the statement; (3) the activities of the declarant in the interim to ascertain whether he or she had the opportunity to deliberate and depart from the truth; and (4) whether circumstances indicate that the remarks were not made under the impetus of studied reflection (see People v Edwards; People v Gantt; People v Diaz, 21 AD3d 58 [2005]).^[FN*]

Here, although it is clear that a motor vehicle accident would likely be an "unexpected and startling event," the misdemeanor complaint is devoid of sufficient facts to establish that the statement of the declarant was an "excited utterance." Significantly, the misdemeanor complaint fails to indicate how much time elapsed between the alleged accident and John Estrellado's statement, "He hit me," made to P.O. Hutt when he arrived at the scene. Contrary to the People's contention, nowhere in the "four corners" of the accusatory instrument does it state that the declarant's statement was made after the accident had "just occurred." As such, it is entirely plausible that an adequate period of time expired between the accident and the arrival of P.O. Hutt to the location during which John Estrellado had ample opportunity to reflect, deliberate and possibly deviate from the truth in his statement concerning the circumstances of the accident.

Additionally, although P.O. Hutt alleges that he observed John Estrellado on the ground next to a motorcycle, there are no allegations in the misdemeanor complaint that the declarant was injured or that he was yelling, crying or upset in order to demonstrate that he was in an agitated state and still{**67 Misc 3d at 311} operating "under the stress of excitement" caused by the incident (People v Shah, 58 Misc 3d 95, 97 [2018]; see People v Edwards; People v Brown).

Based on the foregoing, there is no factual basis in the misdemeanor complaint for the court to reasonably infer that the declarant's statement was made impulsively and spontaneously as a "direct result of sensory perception during that brief period when considerations of self-interest [and possible fabrication could not] be immediately brought to bear" (People v Edwards, 47 NY2d at 497; see People v Johnson; see also People v Almonte, 33 NY3d at 1097 [no excited utterance when several minutes elapsed between the attack and victim's statement to 911 dispatcher and declarant had "ample opportunity to reflect on the events and to decide what he would say about the attackers"]; People v Crombleholme, 8 AD3d 1068 [2004] [based upon the circumstances of the case the court could not conclude that declarant's statements made 10 minutes after car accident were not the product of studied reflection]; People v Breland, 292 AD2d 460 [2002] [People [*5]failed to demonstrate an emergency call made by a complainant in a robbery case was an "excited utterance" based upon the time that elapsed before the call, the complainant's actions in the interim and the lack of serious physical injury to the complainant]; People v Thompson, 173 AD3d 1068 [2019] [People failed to demonstrate that a 911 call was an "excited utterance" when call was made almost a half an hour after incident and the tenor of the caller as well as the contents of the call failed to show he had been so stressed or excited by the incident that his ability to reflect was stilted]; People v Lee, 177 AD2d 288 [1991] [People did not demonstrate alleged shooting victim's statements to doctor in hospital constituted "excited utterances" when treating physician testified that the victim was not in shock, he never lost consciousness and at the time of his statement had the capacity to fabricate]).

Therefore, inasmuch as the statement, "He hit me," made by the declarant, John Estrellado, does not constitute an "excited utterance" it is hearsay which cannot, without a supporting deposition, be used to convert count 2 of the accusatory instrument, leaving the scene of an incident without reporting (see People v Almonte; People v Johnson; People v Edwards; People v Thompson; People v Crombleholme; People v Breland; People v Lee).{**67 Misc 3d at 312}

Accordingly, defendant's motion to dismiss count 2 of the accusatory instrument for facial insufficiency pursuant to CPL 100.40 is granted.