Criminal Court of the City of New York, New York County, February 2, 2018

The Legal Aid Society (Michael A. Perkins of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Samantha Rayborn of counsel), for plaintiff.

Defendant Luis Santini, now charged in a second superseding information, has moved by separate motions to dismiss both the first superseding information and the second superseding information for facial insufficiency (CPL 170.30, 170.35, 100.40) and denial of a speedy trial (CPL 30.30). For the reasons stated below, the court (1) finds that the first superseding information and the second superseding information are facially insufficient and contain uncorroborated hearsay, and (2) grants defendant's motions to dismiss on speedy trial grounds.^[FN*]

On August 13, 2017, the defendant, Luis Santini, was arraigned on a criminal complaint charging assault in the third degree (Penal Law § 120.00 [1]) and other related charges. The court adjourned the case for conversion to August 18, 2017. On August 18, 2017, the People conceded that the instrument remained unconverted, and the court adjourned the case to October 11, 2017, for conversion. On October 11, 2017, the People served and filed the first superseding information.

The first superseding information, charging aggravated harassment in the second degree (Penal Law § 240.30 [4]), attempted {**59 Misc 3d at 225}assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]), contains the [*2]following factual allegations:

"On or about August 13, 2017 at about 12:00 a.m., inside 4 East 28 Street in the County and State of New York . . .

"[Deponent officer] responded to a call for help. [Deponent officer] spoke with the female at the above-mentioned location. [Deponent officer] observed the [sic] the female was crying, had red and watery eyes, and was speaking loudly. While the female was in the above-mentioned state, the female stated in substance the following: 'He hit me. He pushed me. He pushed me into a sink. Look what he did to me. My name is Elsa Santini.'

"[Deponent officer] observed a laceration to the back of the above-mentioned female. [Deponent officer] also observed a bruising to the above-mentioned female's back, in that [deponent officer] observed darker coloring to the skin near the aforementioned laceration. [Deponent officer] also observed swelling to the aforementioned female's face, in that the female's face was bigger on one side than the other."

The court arraigned the defendant on the first superseding information, set a motion schedule and adjourned the case to November 13, 2017, for response and decision on defendant's motions. Defendant did not file motions during this period. On November 13, 2017, the defendant failed to appear and the court issued a warrant for his failure to appear. On November 14, 2017, the defendant returned to court and on his application the court expunged the warrant. The court adjourned the case to December 4, 2017, for hearings and trial. On December 4, 2107, the People announced that they were not ready and the court adjourned the case to December 12, 2017, for hearings and trial. On December 12, 2107, the People announced that they were not ready and the court adjourned the case to December 18, 2017, for hearings and trial. On December 18, 2017, the People announced they were not ready and the court adjourned the case to January 2, 2018, for hearings and trial. On December 29, 2017, the People served and filed a certificate of readiness. On January 2, 2018, newly assigned counsel served and filed his notice of appearance as well as defendant's omnibus motion including his motions to dismiss for facial insufficiency{**59 Misc 3d at 226} and denial of a speedy trial. The court adjourned the case to January 5, 2018, for response and decision on defendant's motions to dismiss. On January 3, 2018, the People served and filed a certificate of readiness. On January 5, 2018, the People served and filed their second superseding information.

The second superseding information, charging aggravated harassment in the second degree (Penal Law § 240.30 [4]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]), contains the following factual allegations:

"On August 13, 2017 at about 12:00 a.m. inside 4 East 28 Street in the County and State of New York . . .

"[Deponent Police Officer] responded to the above location in response to a 911 call. When [deponent officer] arrived at the above location, [deponent officer] spoke with a female. [Deponent officer] observed that the female was crying, had red and watery eyes, was speaking loudly and stated in substance: 'He hit me. He pushed me. He pushed me into a sink. Look what he did to me. My name is Elsa Santini.'

"[Deponent officer] also observed that as the aforementioned female was looking at the defendant, she stated in substance, 'He hit me. He pushed me. He pushed me into a sink. Look what he did to me. My name is Elsa Santini.'

"[Deponent officer] saw a laceration to the back of the above-mentioned female. [Deponent officer] also observed a bruising to the above-mentioned female's back, in that [deponent officer] observed darker coloring to the skin near the aforementioned laceration. [Deponent officer] also observed swelling to the aforementioned female's face, in that the female's face was bigger on one side than the other."

The People did not file a supporting deposition from the complaining witness.

Defendant objected to the second superseding information contending that the new instrument was facially insufficient. The court postponed arraignment on the second superseding information, set a motion schedule, and adjourned the case to February 2, 2018, for decision on defendant's motions to dismiss. On January 9, 2018, defendant served and filed his{**59 Misc 3d at 227} motion to dismiss the second superseding information for facial insufficiency. On January 26, 2018, the People served and filed their response to defendant's motion to dismiss for facial insufficiency. The People have not responded in writing to defendant's motion to dismiss pursuant to CPL 30.30 (1) (b).

A facially sufficient information must contain nonhearsay factual allegations providing "reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]) which "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]). Reasonable cause to believe that a person has committed an offense 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 [*4]that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[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" (People v Casey, 95 NY2d 354, 360 [2000]).

A. The first and second superseding informations fail to identify the defendant as perpetrator.

Defendant contends that the first superseding information and the second superseding information are both facially insufficient as each fails to identify defendant as the perpetrator of the charged crimes. Criminal Procedure Law § 100.40 (1) (c) provides that "[a]n information, or a count thereof, is sufficient on its face when . . . [n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof" (emphasis added). Indeed, the Court of Appeals has held that a valid information must "set forth 'nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission{**59 Misc 3d at 228} thereof' " (People v Kalin, 12 NY3d 225, 228-229 [2009], quoting People v Henderson, 92 NY2d 677, 679 [1999]).

[1] The first superseding information lacks any allegation that would permit a reasonable inference that the defendant was the perpetrator of the charged offenses. The People evidently concede this observation as they chose to file a second superseding information rather than answering defendant's motion to dismiss the first superseding information. The court finds that the first superseding information fails to provide reasonable cause to believe that defendant committed the charged offenses.

With respect to the second superseding information, the People contend that they have cured the defect in the first superseding information by adding the allegation that the complaining witness "was looking at the defendant" when she stated, "He hit me. He pushed me. He pushed me into a sink. Look what he did to me. My name is Elsa Santini." The People assert that on these allegations the court may reasonably infer that the defendant is the person who committed the crimes charged. The court disagrees. Here, the People are essentially asking the court to infer that by merely gazing at the defendant while making statements the complaining witness intended to communicate her identification of the defendant as the perpetrator. While body language and gesture may be deemed communicative under certain circumstances, the mere allegation that a witness looked at the defendant while she spoke is inadequate to permit a reasonable inference that the [*5]witness intended to communicate an identification of the defendant. On the present allegations, the court cannot reasonably infer that the complaining witness identified the defendant as the perpetrator of the charged crimes. The court finds that the second superseding information fails to provide reasonable cause to believe that defendant committed the charged offenses.

B. The first and second superseding information contain uncorroborated hearsay.

Defendant further contends that the first superseding information and the second superseding information are defective as both contain the following unconverted hearsay statement: "He hit me. He pushed me. He pushed me into a sink. Look what he did to me. My name is Elsa Santini." The People, invoking People v Johnson (1 NY3d 302 [2003]), contend that the first superseding information and the second superseding{**59 Misc 3d at 229} information both satisfy the nonhearsay requirement of CPL 100.40 (1) (c) as the statements would be admissible under the excited utterance hearsay rule exception (see People v Casey, 95 NY2d at 361 [2000]).

The common-law hearsay exception for excited utterances has long been recognized by the Court of Appeals (People v Johnson, 1 NY3d 302, 305 [2003]; see also People v Del Vermo, 192 NY 470, 483-487 [1908]). The rule is that "[a]n out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication" (Johnson at 306). The theory behind the exception is 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]). "Among the factors to be considered by a trial court is the period of time between the startling event and the out-of-court statement" (Johnson at 306).

[2] The first and second superseding information are silent as to the time of the 911 call, the contents of the call, and the amount of time that elapsed between the call, the deponent officer's response and the declarant's statements. Without any allegations concerning the timing of the pertinent events the court has no basis to reasonably infer that the declarant's statements were the spontaneous result of a startling event and not a reflective description of earlier events. On the present allegations, the People have failed to establish that the statements would reasonably fall under the excited utterance exception to the hearsay requirement. Absent a supporting deposition from the complaining witness, the statements remain uncorroborated hearsay. The court therefore finds that the first superseding information and the second superseding information contain uncorroborated hearsay.

As defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony, the People are required to be ready for trial within 90 days from the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b]; People v Worley, 66 NY2d{**59 Misc 3d at 230} 523 [1985]). Valid readiness under CPL 30.30 encompasses two necessary elements: The People must communicate their readiness by a statement on the record in open court or by serving on defense counsel and filing with the court a certificate of readiness; and the People must in fact be ready to proceed at the time they declare readiness (People v Kendzia, 64 NY2d 331 [1985]). "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock" (People v England, 84 NY2d 1, 4 [1994]). Where a criminal action commences with a misdemeanor complaint, the People must convert the complaint to a jurisdictionally sufficient information before the People can answer ready for trial (People v Colon, 110 Misc 2d 917, 920 [Crim Ct, NY County 1981], revd 112 Misc 2d 790 [1982], revd 59 NY2d 921 [1983]).

August 13, 2017, to August 18, 2017: Defendant was arraigned on August 13, 2017, on a misdemeanor complaint. The court adjourned the case to August 18, 2017, for the People to convert the complaint to an information. This five-day adjournment is chargeable to the People pursuant to CPL 30.30 (1) (b).

August 18, 2017, to October 11, 2017: On August 18, 2017, the People failed to convert the complaint. The court adjourned the case to October 11, 2017, for that purpose. This 54-day adjournment is chargeable to the People pursuant to CPL 30.30 (1) (b).

October 11, 2017, to November 13, 2017: On October 11, 2017, the People served and filed the first superseding information. The court arraigned the defendant, set a motion schedule and adjourned the case to November 13, 2017, for response and decision. As discussed, supra, the first superseding information is a facially insufficient accusatory instrument containing unconverted hearsay; thus, the original, unconverted misdemeanor complaint was the operative accusatory instrument at the time of this adjournment. Nonetheless, this 33-day adjournment for motion practice is excluded from speedy trial time pursuant to CPL 30.30 (4) (a) (see People v Worley, 66 NY2d 523 [1985]).

November 13, 2017, to November 14, 2017: On November 13, 2017, the defendant failed to appear for court and the court ordered a warrant for defendant's arrest. On November 14, 2017, the defendant returned and the court expunged the warrant. The one day of delay from the issuance of the warrant to the defendant's return to court is excludable pursuant to CPL 30.30 (4) (c) (ii).{**59 Misc 3d at 231}

November 14, 2017, to December 4, 2017: On November 14, 2017, the defendant returned to court. The court expunged the warrant and adjourned the case until December 4, 2017, for hearings and trial. As discussed, supra, the first superseding information is a facially insufficient accusatory instrument containing unconverted hearsay, thus the original, [*7]unconverted misdemeanor complaint was the operative accusatory instrument at the time of this adjournment. As recently stated by the Court of Appeals, "Once a defendant sufficiently alleges that the People were not ready within the statutory period, the People [have] the burden of showing their entitlement to a statutory exclusion" (People v Brown, 28 NY3d 392, 403 [2016] [citations and internal quotation marks omitted]). The People, however, have made no showing as to why the delay following defendant's return should be excludable. Accordingly, all 20 days of this adjournment are chargeable to the People pursuant to pursuant to CPL 30.30 (1) (b).

December 4, 2017, to December 12, 2017: On December 4, 2017, the People announced that they were not ready, and the court adjourned the case to December 12, 2017, for hearings and trial. This eight-day adjournment is chargeable to the People pursuant to CPL 30.30 (1) (b).

December 12, 2017, to December 18, 2017: On December 12, 2017, the People announced that they were not ready, and the court adjourned the case to December 18, 2017, for hearings and trial. This six-day adjournment is chargeable to the People pursuant to CPL 30.30 (1) (b).

December 18, 2017, to January 2, 2018: On December 18, 2017, the People announced that they were not ready, and the court adjourned the case to January 2, 2018, for hearings and trial. On December 29, 2017, the People communicated a statement of readiness by serving on the defense and filing with the court a certificate of readiness. As discussed, supra, the first superseding information is a facially insufficient accusatory instrument containing unconverted hearsay; thus, the original, unconverted misdemeanor complaint was the operative accusatory instrument at the time of this adjournment. A complaint must be converted to a jurisdictionally sufficient information before the People can answer ready for trial (Colon at 920-921). Despite the People's communication of readiness on December 29th, the People's statement of readiness must be viewed as illusory as the People made the statement before they had converted the original misdemeanor complaint to a{**59 Misc 3d at 232} jurisdictionally sufficient information (see England at 4). This 15-day adjournment is chargeable to the People pursuant to CPL 30.30 (1) (b).

January 2, 2018, to January 5, 2018: On January 2, 2018, the People announced that they were not ready for hearings and trial. Defendant's new counsel served and filed defendant's omnibus motion containing defendant's motions to dismiss the first superseding information as facially insufficient and time-barred under CPL 30.30. The court adjourned the case to January 5, 2018, for response and decision on defendant's motions. This three-day adjournment is excludable motion practice time pursuant to CPL 30.30 (4) (a) (see People v Worley, 66 NY2d 523 [1985]).

January 5, 2018, to February 2, 2018: On January 5, 2018, the People served and filed the second superseding information and announced ready for hearings and trial. Defendant objected to the second superseding information contending that the new instrument was [*8]facially insufficient and time-barred under CPL 30.30. The court set a motion schedule and adjourned the case to February 2, 2018, for decision on defendant's motions. This 28-day adjournment is excludable motion practice time pursuant to CPL 30.30 (4) (a) (see People v Worley, 66 NY2d 523 [1985]).

The court finds that 108 days of delay are properly charged to the People.

For the foregoing reasons, the court finds that the first superseding information and the second superseding information are facially insufficient and contain uncorroborated hearsay. The original misdemeanor complaint remains the operative accusatory instrument. A total of 173 days have passed since the defendant's arraignment on the misdemeanor complaint. Sixty-four days of motion practice delay (CPL 30.30 [4] [b]) and one day of delay due to defendant's failure to appear (CPL 30.30 [4] [c]) are excluded for speedy trial purposes. The court therefore finds that a total of 108 days of delay are properly charged to the People. As this delay exceeds the time permitted by statute (CPL 30.30 [1] [b]), defendant's motion to dismiss is granted.