Defendant is charged with two counts of assault in the third degree, Penal Law (hereinafter "PL") § 120.00(1); two counts of attempted assault in the third degree, PL § 110/120.00(1); two counts of menacing in the third degree, PL § 120.15; and two counts of harassment in the second degree, PL § 240.26.

By motion dated January 15, 2009, the defendant moves to dismiss the accusatory instrument, pursuant to Criminal Procedure Law (hereinafter "CPL") §§ 170.30(1)(a) and 170.35(1)(a), as jurisdictionally defective for failure to provide legally sufficient factual allegations as required by CPL § 100.40; and upon the ground that the complaint is defective within the meaning of the New York Constitution Art. I, §6, and the United States Constitution Amendments V, VI, and XIV. The People oppose the defendant's motion to dismiss by response papers dated February 9, 2009.

The defendant was arraigned on June 1, 2008, and the case was adjourned to

September 22, 2008 for the People to convert the complaint into an information by serving and filing corroborating affidavits from the two complaining witnesses, Tania Ludford and Uniqua [*2]Ludford. On August 22, 2008, the People served and filed off-calendar a superseding accusatory instrument, as well as a written statement of readiness.

The superseding accusatory instrument, alleges, in pertinent part, that on May 31, 2008, at approximately 10:30 AM, at 1430 Freeport Loop, County of Kings, that Police Officer Nicholas Kester alleges:

Deponent ^[FN1] did respond within approximately five minutes to a radio run for an assault in progress at the above time and place and deponent did observe Tania Ludford to be shaking and very upset and deponent did observe Uniqua Ludford to be shaking and very upset.

Deponent did speak to Tania Ludford . . . and Tania Ludford did say that Jeffrey Schuler did argue with Tania Ludford and that Jeffrey Schuler did punch Tania Ludford across the face.

Deponent did also speak to Uniqua Ludford , , , and Uniqua Ludford did say that Jeffrey Schuler did strike Uniqua Ludford across the face with a pair of pants and that Uniqua Ludford did feel pain from the defendant's actions.

Deponent did observe Tania Ludford to be injured in that Tania Ludford did suffer swelling and redness about the face.

Deponent is informed by defendant's own statements that defendant and Tania were arguing.

Law

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. CPL §§ 100.15(3); 100.40(1)(b); 70.10. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense.CPL § 100.40(1)(c). An information which fails to satisfy these requirements is jurisdictionally defective. CPL §§ 170.30 and 170.35; People v Alejandro, 70 NY2d 133, 136-37 (1987); People v Dumas, 68 NY2d 729, 730 (1986).

Defendant first contends that the superseding accusatory instrument is not an information because it relies upon inadmissible hearsay and fails to support every element of the offenses charged in violation of the requirements of CPL §100.40(1)(c) . The People respond that a complaining witness's excited utterance may serve as the basis for a valid information in the absence of a corroborating affidavit.

There are two questions before the court. The first is: Are there hearsay statements contained in the accusatory instrument in violation of C.P.L. § 100.40(1)(c)? The answer to this will require a determination as to whether or not the excited utterance exception to the hearsay rule is applicable in this case. The second question is: If the accusatory instrument is found to contain hearsay, have the People exceeded the time limit in which to be ready for trial pursuant to C.P.L. § 30.30?

However, before deciding those issues, another matter needs to be addressed. At the court appearance of September 22, 2008, the court reviewed the superseding accusatory instrument filed by the People on September 22, 2008 and deemed that the case was converted as [*3]to all of the charges with the exception of the assault in the third degree charges. After reviewing both the court's activity sheet and the minutes of that proceeding for purposes of deciding this motion, it is evident that the superseding accusatory instrument did not meet the requirements of CPL § 100.40.

Therefore, following further consideration and reflection and after reviewing the court papers and the submissions of both parties and because the court has the inherent power to correct its own mistakes (see People v. Minaya, 54 NY2d 360 [1981]), the court finds that it must reverse that determination for the reasons set forth below.

I. Are there hearsay statements contained in the accusatory instrument?

The court agrees that the use of an excited utterance made by a complaining witness may be used as a means to convert a complaint to an information. See People v. Vickers, 17 Misc 3d 113A (Crim. Ct., Kings County 2007); People v. Foster, 190 Misc 2d 625, 628 (Crim Ct., Kings County 2002), People v. Swinger, 180 Misc 2d 344 (Crim Ct., NY County 1998). The Court of Appeals has held that permitting the admission in court of an excited utterance as a hearsay exception conforms to the principle 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).

The question before this court is whether the statements contained in the superseding accusatory instrument filed by the People on September 22, 2008, fall within the excited utterance exception to hearsay.

The determination by this court as to whether the statements contained in the accusatory instrument meet the requirements to be an "excited utterance" exception to the hearsay rule must be based upon the information contained within the four corners of the accusatory instrument itself.^[FN2] In evaluating the accusatory instrument, the court cannot, for example, add information that is contained in the People's response to motion papers. If the People have more information or facts which might better establish the charges, they are required to include that in the accusatory instrument.

As People v. Edwards established, there are several factors to be considered when deciding whether a statement is an excited utterance. These factors include the nature of the startling event, the length of time between the event and the statement, and the "activities of the declarant in the interim." Id. at 497.

The facts as alleged in the superseding accusatory instrument inform us of the nature of the startling event: an argument that became physical with the defendant punching Tania Ludford across the face, possibly resulting in swelling and redness about Tania Ludford's face, and the defendant striking Uniqua Ludford across the face with a pair of pants, with Uniqua Ludford feeling pain from that action.

The superseding accusatory instrument is critically silent as to the activities of the [*4]declarants in the time interval between the startling event and the declarations by the complaining witnesses.

The time element in the instant case is not adequately established by the information recited in the four corners of the accusatory instrument. The "startling event" allegedly occurred at approximately 10:30 A.M. on the day in question. There are no facts to establish how much time elapsed between 10:30 A.M. and the moment when the complaining witnesses made their comments to the police officer. The only information proffered is that the police officer responded within approximately five minutes to a radio run.

The People argue in their submission that "(a)s the Superseding Information makes clear, Officer Kester arrived at the scene of the incident within approximately five minutes' of receiving the radio run. The SPRINT report gives a time of 10:44am for the 911 call. Officer Kester's reported response time is further fully consistent with the SPRINT report's 10:57am time of arrival for EMS." People's Mem. at p.3.

There are three problems with the People's logic. First, the People failed to put any of the facts from the SPRINT ^[FN3] report into their accusatory instrument and therefore it is unavailable to the court in its evaluation. Second, there is no indication in the accusatory instrument as to the length of time that elapsed between the time of any 911 call to the radio run. Third, there is no indication in the accusatory instrument that the police officer had arrived before the EMS ^[FN4] at

10:57 AM. Thus, even if the court were able to look at the information that apparently exists outside of the accusatory instrument, there still is insufficient information to know how much time had elapsed between the startling event and the complaining witnesses declarations to the police.

There is no time line information provided by the People in their accusatory instrument that would allow the court to determine that the time involved falls within a time frame that would satisfy the exception to the hearsay rule requirements.^[FN5] In People v. Naul, 3 Misc 3d 1101(A), 2004 WL 895971 (Crim.Ct.,Queens Co.2004), the court ruled that the declarant's statement contained within the accusatory instrument was not an excited utterance because "the court has no insight regarding what the declarant's actions were during [a 55 minute] 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." Although Naul involved a case where the police officer responded 30 minutes after receiving the radio run, and the police officer in this case responded within 5 minutes, the difference is irrelevant because there is no other time frame provided to us. We don't know when the radio run was aired. The radio run may have been made immediately upon receiving a 911 call, but there are no factual allegations as to when that 911 call was received. [*5]

The time element is crucial where the assurance of a hearsay statement's reliability is provided by the utterance being made under "the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication." People v. Johnson, 1 NY3d 302,306 (2003). In other words, the amount of time between the startling event and the statement being made may attenuate the "startling" aspect of the situation and allow for "studied reflection and possible fabrication."

The fact that the police officer saw the complainants "shaking and upset" does not necessarily mean that they had no time to reflect or that they had not had the opportunity to fabricate a story. This is not to imply that the complainants were fabricating a story. The physical abuse that is alleged is viewed very seriously by this court. However, as stated above, the court is limited to the information that the People have included in the accusatory instrument itself.

Moreover, the description of the emotional/mental state in which the police officer found each of the two declarants is identical. Compare ". . .Deponent did observe Tania Ludford to be shaking and very upset," with ". . . Deponent did observe Uniqua Ludford to be shaking and very upset." Regardless of that peculiarity, the descriptions are limited to just three words, "shaking and upset", and could describe both a person who is hurt, frightened, or shocked, as well as someone who is merely angry and vengeful.

Furthermore, the accusatory instrument lacks direct quotes or even paraphrases of the actual utterances made by the declarants. All of which would have been helpful in trying to determine if those utterances were excited ones. Where the accusatory instrument is attested to by the complaining witness either by signing the attestation clause on the instrument itself or by signing a corroborating affidavit, then those general statements are the statements of the complaining witness. But where a determination must be made as to whether or not statements are excited utterances for purposes of excepting them from the application of the rule against hearsay, then it becomes extremely important for the purposes of that determination to know what was uttered. Where an accusatory instrument has a third party merely alluding to a victim's unspecified statement, and where the third party's deposition only recounts boilerplate allegations, then the language of the accusatory instrument hides from review the very essence of the issue that must be determined—the utterance itself.

In the instant case, the People have failed to allege facts sufficient to establish that critical time period. Thus, as in People v. Naul, the People have failed to show that the declarants' statements were not the product of studied reflection.

The court is constrained to find that the statements made to Police Officer Kester by the complainants do not qualify as excited utterances under the facts set forth in the accusatory instrument. Therefore, there are hearsay statements contained in the accusatory instrument.

II. Have the People exceeded the time limit for trial readiness pursuant to C.P.L. § 30.30?

Having already determined that the accusatory instrument contains hearsay statements, this court also finds that the accusatory instrument is not an information because it relies upon inadmissible hearsay and violates the requirements of C.P.L. § 100.40(1)(c). Therefore, although the People served and filed off-calendar a written statement of readiness on August 22, 2008, that statement of readiness is a nullity in the absence of a valid accusatory instrument. People v. [*6]Miniero, 179 Misc.2e 830, NY Slip.Op. 99088 (Crim. Ct. Kings Co. 1999).

On the adjourn date of September 22, 2008, the accusatory instrument still contained hearsay statements and had not been converted. Thus, as of September 22, 2008 ^[FN6], there still existed a legal impediment to trying the case (People v. England), and the entire time period from arraignments to that date would be pre-readiness and includable pursuant to C.P.L. § 30.30.

That time period equals 113 days of chargeable time. Thus, the People failed to answer ready for trial within the 90 day period required by C.P.L. § 30.30. Accordingly, defendant's motion to dismiss is granted.

Defendant's motion to dismiss the two assault counts is mooted by the decision above to dismiss the complaint in its entirety.

The foregoing constitutes the decision and order of the court.

Dated:Brooklyn, New York

March 2, 2009

_______________________________

Frederick C. Arriaga

J.C.C.