The defendant is charged with one count of Assault in the Third Degree.

Defendant, in an omnibus motion, seeks: (1) an order deeming the accusatory instrument filed in this case to be a misdemeanor complaint; (2) a Dunaway/Huntley Hearing; (3) an Order Precluding Statement and Identification Evidence; (4) a Sandoval Hearing; (5) an Order to Compel a Bill of Particulars and Discovery, and (6) Reservation of Rights.

The defendant's omnibus motion is decided as follows:

The defendant moves to have the accusatory instrument deemed an unconverted misdemeanor complaint. For the reasons stated herein, the defendant's motion is denied.

Both a misdemeanor complaint and an information must comply with the form requirements of CPL § 100.15 and must contain, either in the body of the complaint or in combination with a supporting deposition, factual allegations that provide reasonable cause to believe that the defendant committed the offenses charged. CPL § 170.40 Additionally, an information must contain, either in the body of the complaint or in a supporting deposition, non-hearsay allegations that establish, if true, every element of the offense charged. CPL § 100.40(1)(c) The defendant claims that this third requirement has not been satisfied in that the accusatory instrument still contains uncorroborated hearsay allegations. Specifically, the defendant argues that the Domestic Incident Report ("DIR") that was signed by the complainant and that the People filed with the court does not sufficiently corroborate the allegations contained in the factual portion of the misdemeanor complaint. The People have not filed papers in opposition to this motion.

The accusatory instrument filed in this case alleges that on April 16, 2009 at 11:00 p.m., inside 373 East 8th Street, Apartment 1C in New York County, the defendant intentionally caused physical injury to another person. Specifically, it alleges that:

Deponent states that deponent is informed by Maria Rodriguez, of an address known to the District Attorney's Office, that while informant was talking on the telephone, informant observed the defendant grab said telephone from informant's face, causing informant to receive swelling and a bruise on informant's face. Deponent is further informed that informant then observed defendant grab informant's hair with defendants [sic] hands and pull informant's hair, thereby making informant [*2]fall onto informant's bed. Deponent is further informed that as a result of defendants [sic] above mentioned conduct, informant sustained bruises and swelling to informant's face and substantial pain to informant's head.

The People also served and filed a copy of the complainant's Statement of Allegations section of the DIR — written in Spanish — along a certified translation done by Sandra Graves of the District Attorney's Spanish Language unit. The translation reads (in relevant part):

I, Maria E. Rodriguez, state that on 4/16/09 at 23:00, in the County of ______________, of the State of New York, the following did occur:

Last night while I was lying down in the side room and my husband Raymond Salamone took me by force to his room. I told him that I didn't want to, and he threw me on the bed and told me that was going to be the last night, that he was going to kill me, that he was going to knock my teeth off. He also pulled me by the hair. Afterwards, I got up and had some tea and went to the living room. My friend Nora had just called me at 11:00, I was talking with her and he snatched the telephone removing the earring and leaving my face red. He was telling me that if I would leave him, he was going to set everything on fire and he was going to look for a group so they would hit my son. This is not the first time that this happens, several times he told me that if I called the police they would arrest me, that he was going to break one of his legs and say that I had done it.

A "form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law" (see CPL § 100.30(1)(d)) was printed below this narrative and above the complainant's signature as verification of the factual allegations contained within the witnesses statement. As a threshold matter, the court finds that the DIR and certificate of translation are in the required form and are collectively deemed a supporting deposition. See CPL § 100.20

The defendant argues that the Domestic Incident Report served and filed in this case does not convert the complaint to an information because it is not legally sufficient to remove the hearsay from the instrument, while the District Attorney's Office claims that it does sufficiently convert the complaint to an information. Unfortunately, there is no dispositive guidance from appellate courts on this issue, and what has evolved amongst the various reported trial decisions are essentially two schools of thought. First, as the defendant has argued, there is the position articulated in People v Stridiron, 175 Misc 2d 16 (Crim Ct Queens County 1997), where the court established a four-part test for determining whether a Domestic Incident converts a complaint to an information.^[FN1] The first [*3]prong of the Stridiron test, which is what is at issue in the instant case, is that the factual allegations of a Domestic Incident Report "must contain every element of the factual allegations set forth in the accusatory instrument." Stridiron at 18. An alternate school of thought, however, is the less technical rationale presented in People v Modica, 187 Misc 2d 635 (Crim Ct Richmond County 2001), where the court held that "[i]f the elements of the crime or crimes charged are established by the facts contained in the DIR and the DIR, upon inspection by the court, is reasonably referable to the incident alleged in the accusatory instrument, the court may rely on the non-hearsay facts contained in the DIR on determining whether the accusatory instrument is an information." Modica at 638.

This court finds the rationale of the Modica court more compelling. While an appellate court will likely one day establish a controlling test or standard to apply when analyzing this conversion issue, applying the Stridiron test at this stage of the proceedings would create a hyper technical pleading burden that is greater than that contemplated by the either the Criminal Procedure Law or the Court of Appeals. In reaching this conclusion, it is worth noting some contextual facts. The practice in the New York City Criminal Court in the vast majority of cases which involve a complaining witness who has provided information to a deponent of a misdemeanor complaint is for the District Attorney's office to file a one page boilerplate supporting deposition that states that the complaining witness has read the facts contained in the accusatory instrument and that they are true. This standard form is signed and dated by the complainant, and is verified as required by the Criminal Procedure Law. While an occasional supporting deposition will have handwritten notes from a complaining witness, these standard supporting depositions almost never contain any additional facts about the alleged incident. In domestic violence cases, however, it has become a practice by some District Attorney's Offices to use Domestic Incident Reports to convert complaints into informations rather than using the aforementioned "standard" supporting deposition. This has developed over time because of a variety of reasons that cause victims of domestic violence to sometimes choose not to participate in the prosecutions that follow an arrest for a family offense.

Although it is perfectly acceptable to supply a supporting deposition that contains no additional facts, the application of the Stridiron test in this instance would result in a pitting of the deponent's allegations against the complainant's allegations in an effort to determine whether or not they are both identical to each other. This then takes us away from the real issue which is whether or not the complainant/informant is confirming in the supporting deposition - in this case, with a DIR - that the incident alleged by the deponent in the complaint did, in fact, occur. The goal at this stage of the proceedings is solely to determine whether the hearsay in the underlying complaint has been removed. The defendant is correct that the allegations in this report are not absolutely identical to those in the complaint. (Specifically, this court notes the absence of any reference in the DIR to the bruises, redness, and swelling that allegedly resulted from the defendant pulling the complainant's hair.) However, the rule in such instances cannot be that where a supporting deposition is filed which contains a factual recitation of the incident from a complaining witness, like the DIR filed in [*4]this case, that the complaining witness is obligated to formulate her version of events in a manner that is identical to the assistant district attorney who drafted the complaint, who is trained in the drafting of accusatory instruments, is armed with a law degree, and operates with pre-programmed computer templates that are used when drafting a complaint. Such a rigid rule places form over substance, and runs contrary to the overall pleading rationale that the Court of Appeals has directed courts to apply when evaluating, for example, the sufficiency of the facts alleged in an information. See People v Casey, 95 NY2d 354, 360 (2000)("[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading."); see also People v Henderson, 92 NY2d 677, 680-681 (1999)("[i]n the normal course of events, the deposition supporting a misdemeanor complaint will be secured within hours or days after the events complained of, thus satisfying the requirements for a valid information . . . A victim would not necessarily know with any certainty, shortly after an attack, what its lasting effects will be. Under these circumstances, allegations of substantial pain, swelling and contusions, following kicks, must be deemed sufficient to constitute "physical injury" to support a facially valid local criminal court information.")

In this case, the complainant has signed a verified statement that speaks of an incident which involved the defendant and herself as alleged in the complaint, which occurred on the same date time and location as alleged in the complaint, and which describes an actus reus (in fact, they both describe two separate and distinct actus rei) that is clearly the same as alleged in the complaint. It is self-evident that the complainant is referring to the same incident in the Domestic Incident Report that the deponent is referring to in the complaint. While the inconsistencies pointed out by the defendant between the two documents may result in vigorous cross-examination at trial, these inconsistencies do not mean that hearsay remains in the accusatory instrument. The incident in the Domestic Incident Report is reasonably referable to the incident alleged in the accusatory instrument. No hearsay remains, and the instant accusatory instrument in this case is, therefore, an information.

The branch of the defendant's motion seeking a Bill of Particulars and Discovery is to be regarded as a Request for a Bill of Particulars pursuant to CPL 200.95 and a Demand for Discovery pursuant to CPL 240.20. The motion is granted to the extent that the People have provided already in both their response and the Voluntary Disclosure Form that they turned over in this case.

The People are reminded of their continuing obligations under Brady v Maryland, 373 US 83 (1963).

The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3).

New York, New York

__________________________

Michael J. Yavinsky

Judge of the Criminal Court