The defendant was arraigned on August 10, 2003 on a misdemeanor complaint charging him with assault in the third degree and harassment in the second degree, violations of Penal Law §§120.00 (1) and 240.26 (1). The complaint was sworn to by Police Officer Stephen Muhlenbruk and stated, in substance, that he was informed by the complainant, Sabrina Naul, that at 4:30 pm on August 10, 2003 the defendant, Baldat Naul, did push her during an argument causing her to fall into a wall, causing a laceration to her head, swelling, bleeding and substantial pain, requiring five stitches from a local hospital.

On September 9, 2003, apparently because the People were unable to obtain a supporting deposition from the complainant, the People filed a superceding accusatory instrument sworn to by a Police Officer Cleveland Zollicoffer. That complaint states in pertinent part that on August 10, 2003 at 4:55 p.m., Officer Zollicoffer was on patrol when he received a radio run of a dispute in progress. When he arrived at the location within 30 minutes he observed the complainant in a scared and upset state. While the complainant was in this condition, she stated that the defendant pushed her down to the ground causing her to strike her head and that she was in substantial pain. The officer further affirmed that he observed a bleeding laceration to the back of the complainant's head which required stitches at a local Queens hospital.

The defendant moves to dismiss the superceding complaint on the ground of facial insufficiency, claiming that the factual allegations are hearsay. The People contend that the statement made by the complainant should be deemed admissible hearsay since it falls within the excited utterance exception. The court is asked, in effect, to follow several lower court decisions which have upheld the use of an excited utterance exception as a way to convert a complaint into an information. People v Foster, 190 Misc 2d 625, People v Solomon, Feb. 3, 2003, at 23, col 4; People v Booker, NYLJ July 30, 1999, at 26 col 4; People v Liggins, NYLJ, Sept. 17, 1999, at 29, col 3.

The Court agrees that the use of an excited utterance made by a complainant to a police officer may be used as a vehicle to convert a complaint to an information. See People v Foster, 190 Misc 2d 625, People v White, NYLJ, July 30, 1999, at 26 col 4; People v Smith, NYLJ, June 24, 1999, at 33, col 3; People v Solomon, NYLJ, Feb. 3, 2003, at 23, col 4. The critical issue here, however, is whether the statement in the instant accusatory instrument qualifies under the exception.

To determine whether an out of court statement qualifies as an excited utterance, the [*2]court must assess: 1) the nature of the event; 2) the amount of time that elapsed between the occurrence and the statement; 3) and the activities of the declarant between the event and the statement. People v Edwards, 47 NY2d 493, 497; People v Aulder, NYLJ, December 16, 1999, at 32, col 2.

The Court of Appeals in People v Johnson NY2d (December 22, 2003 NYSlipOp 19683) has recently reiterated the definition of an excited utterance as one made under "the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication." Among the factors to be considered is the period of time between the startling event and the out-of-court statement. However, the time for reflection is not measured in minutes or seconds, but rather by the facts of the situation. The Court further noted that "while any serious injury may be a significant factor in determining whether the declarant remains under the stress of a startling event, it is not the only factor .... (t)here is , in short, no 'injury' exception to the hearsay rule." People v Johnson, supra.

In the instant case, the event which precipitated the statement does qualify as a startling event, however, the People have failed to demonstrate, either by the facts and circumstance of the statement or by the time that elapsed, that the declarant's statement was not a product of studied reflection. The present facts differ significantly from other lower court cases that allowed the admissibility of hearsay statements under the exception. See People v Foster, 190 Misc 2d 625, People v White, NYLJ, July 30, 1999, at 26 col 4; People v Smith, NYLJ, June 24, 1999, at 33, col 3; People v Solomon, NYLJ, Feb. 3, 2003, at 23, col 4, People v Liggins, NYLJ, Sept. 17, 1999, at 29, col 3.

In these cases the police responded to an incident within minutes of receiving a radio dispatch.

In the instant case, the officer responded to a radio run of a domestic violence incident which occurred 25 minutes before and arrived at the location within 30 minutes. Thus we can assume that approximately 55 minutes passed from the beginning of the incident until the time of the statement. Moreover, the court has no insight regarding what the declarant's actions were during this period, thus it can form no basis to establish that the declarant was so upset that she did not have a chance to reflect and fabricate. See People v Aulder, NYLJ, December 16, 1999, at 32, col 2.

The fact that the officer observed the complainant to be scared and upset does not necessarily mean she had no time to reflect.

The court finds, therefore, that the complainant's statement made to the officer does not qualify as an "excited utterance" under the facts set forth in the complaint. However, the motion to dismiss the complaint as insufficient is denied. The accusatory instrument before the court still qualifies as a sufficient complaint. Because the defect in the accusatory instrument is due to the fact it is still in hearsay form, it may be readily curable. The court, therefore, denies the motion to dismiss at this time and grants the People leave to move to amend the defect within the time frame allotted by CPL 30.30. See CPL 170.35 (1) (a).

This constitutes the decision and order of the Court.

Kew Gardens, New YorkLENORA GERALD, JCC

Decision Date: January 15, 2004