People v Powell
Annotate this CaseDecided on December 19, 2013
Criminal Court of the City of New York, Kings County
The People of the State of New York, Plaintiff,
against
Tory Powell, Defendant.
2013KN062714
Defendant.
For the King's County District Attorney's Office, Peter J. Chambers, Esq. For Defendant, Legal Aid Society, Amy Dallas, Esq.
John T. Hecht, J.
Defendant Tory Powell is charged with the class A misdemeanor of Assault in the Third Degree (PL § 120.00[1]) and other charges based on Shantell Johnson's allegation that on August 11, 2013, at 12:45 AM, defendant "repeatedly punched [her] about the face and back," causing "a busted lip, a gash to the forehead, and a bruised shoulder" for which she received treatment at a hospital.
Defendant moves, pursuant to Criminal Procedure Law ["CPL"] sections 170.30(1)(e) and 30.30(1)(b), for an order dismissing all charges on speedy-trial grounds. The People oppose. For the reasons that follow, the motion is denied.
The action commenced when defendant was arraigned on August 12, 2013. The case was adjourned to September 10 for conversion of the hearsay complaint to a non-hearsay information. 29 days are included (People v Caussade, 162 AD2d 4, 8 [2d Dept 1990] [People need a valid accusatory instrument upon which the defendant may be brought to trial before they may be ready for trial]).
On September 10, the People were not ready for trial and the case was adjourned to November 14 for conversion. On October 18, the People served and filed a superseding information and a statement of readiness.
The superseding information retains the same charges but relies on the arresting officer's observations rather then Ms. Johnson's allegations for its factual portion. Specifically, the superseding information alleges that at 12:52 AM, "several unknown informants" informed Police Officer Ashley Wilcots about an assault in progress and directed her to a location where, one minute later, she observed the complainant, who was "hysterically crying and upset" and stated that defendant had "repeatedly punch[ed] [her] about the face and shoulder." The officer noted that the complainant had "multiple lacerations to the head and bruising to the shoulder." Further, when the officer knocked on the door of the location, "defendant opened the door and stated ... that [he] was the one the informant was looking for."
At a calendar call on November 14, the defense argued that the superseding information was not an information because it contained hearsay allegations, specifically, the contention of the unknown informants that there was an assault in progress at the subject location. Despite the People's assertion that this contention was not hearsay (i.e., evidence that defendant was assaulting the complainant at the location), but an explanation for the officer's conduct (i.e., a report that caused the officer to go there), the People moved to strike the reference to the "unknown informants" and what they said and when they said it, and affirmed their readiness for trial. The presiding judge struck this language from the superseding information and adjourned. [*2]The defense thereafter filed this motion to dismiss on speedy-trial grounds, arguing that the presence of hearsay in the information invalidated the October 18 statement of readiness and that the November 14 statement of readiness was tardy, inasmuch as it was made more than ninety days after this action commenced.
To be facially sufficient, an information must state "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15[3]; CPL 100.40[1][a]). Its "non-hearsay allegations [must] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.15[3]; CPL 100.40[1][c]). At the pleading stage, all that is necessary is that non-hearsay factual allegations be evidentiary in character and tend to support the charges (People v Allen, 92 NY2d 378, 385 [1998]).
The superseding information contains statements attributed to "several unknown informants" that explain why and when Officer Wilcots did what she did - investigate the location where, a minute after receiving a report, she observed the hysterical and injured complainant. These are non-hearsay purposes for the statements, rendering them non-hearsay. (See, e.g., People v Smith, __ NY3d __,2013 NY Slip Op 08371 at *3 [2013] [statements admitted not for truth or accuracy but as evidence to assist factfinder in evaluating witness's testimony are not hearsay]). Even the reference to the alleged "assault in progress" may also be considered to have the non-hearsay purpose of explaining why Officer Wilcots went to the location immediately.
But even if the unsworn witnesses' statements were hearsay, their presence in the superseding information does not vitiate the non-hearsay character of the remaining allegations. The defense has not filed a motion to dismiss for facial insufficiency and does not assert that the officer's observations of the hysterical and injured complainant, the complainant's statement made in her excited state (see People v Johnson, 1 NY3d 302, 306 [2003]; People v Valentine, 40 Misc 3d 28 [App Term 2nd, 11th & 13th Jud Dists 2013]), and defendant's admission do suffice for a facially sufficient non-hearsay information.
More to the point, the People may validly assert their readiness on a non-jurisdictionally defective information, one, in other words, that contains hearsay. (People v Biamonte, 19 Misc 3d 139(A) [App Term 9th & 10th Jud Dists 2008]). People v. Casey explains that a hearsay defect is not jurisdictional. (People v Casey, 95 NY2d 354, 362 [2000]). In Casey, the defendant had alleged that an accusatory instrument was jurisdictionally defective because it lacked any non-hearsay allegation that defendant knew about the order of protection that he was alleged to have violated. The Court addressed the argument as follows: It is not clear from a facial examination of the information whether that allegation relating to defendant's knowledge of the order was based only upon the complainant's advice (she did not aver this in the supporting deposition, however), or whether it was based upon the detective's direct knowledge or some exception to the hearsay rule, either of which would have satisfied CPL 100.40(1)(c). Thus, because it cannot be determined upon the face of the information whether the pleading is in compliance with CPL 100.40(1)(c), the information is subject to a motion to dismiss. (People v Casey, 95 NY2d 354, 361 [2000]) (emphasis supplied); see also People v Keizer, 100 NY2d 114, 121 [2003] [hearsay defect waived by failure to timely raise issue in a pretrial motion]).
Defendant's argument that the superseding information is defective because it contains hearsay and that the statement of readiness is therefore illusory ignores Casey and Keizer. Because a hearsay defect is not jurisdictional, the People may validly announce "ready for trial" even on an accusatory instrument that contains hearsay. (People v Antonovsky, 41 Misc 3d 44 [App Term 2nd, 11th & 13th Jud Dists 2013] [because hearsay defect does not implicate purpose of requiring that accusatory instrument be properly pleaded, no speedy-trial violation]). In [*3]Casey, in fact, the People proceeded to trial on an information that may have contained hearsay, and the defendant's conviction was affirmed. Accordingly, 38 days are included until the People's October 18 statement of readiness, as the People concede (People v Stirrup, 91 NY2d 434, 437-38 [1998] [filing a certificate of readiness tolls the speedy-trial clock from running for the remainder of the adjournment period]).
Based upon the foregoing, the total chargeable time is 67 days.
Because the People's speedy-trial allocation is 90 days on a class "A" misdemeanor, as here, CPL 30.30(1)(b), and has not been exceeded, defendant's motion to dismiss on speedy-trial grounds isdenied.
The foregoing constitutes the decision and order of the Court.
Dated: December 19, 2013
Brooklyn, New York__________________
John T. HechtJ.C.C.
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