Prosecuting a Case of Third Degree Assault (NY PL 120.00) without a Victim: The Excited Utterance Rule in New York

As a New York criminal attorney who works on behalf of clients in the criminal trial courts throughout the New York City area–from the boroughs of Brooklyn, Queens and Manhattan into the counties of Westchester and Rockland– I pick up on the strategies employed by the respective District Attorney’s Office. Equally important, having served as a Manhattan prosecutor for over seven years, I witnessed first hand Assistant District Attorneys pursuing these strategies. As I also saw them, I’ve noticed a trend amongst Assistant District Attorney’s trying to corroborate the allegations in a complaint and further cases even where a complainant is not cooperative. A recent case, The People v. Joseph Valentine, 2009KN083896, NYLJ 1202516492758, at *1(Criml, KI. Decided September 8, 2011) is a great illustration of this trend and thus is a case worth examining in this blog.

Mr. Valentine was charged with Assault in the Third Degree pursuant to NY PL 120.00(1), Menacing in the Third Degree pursuant to NY PL 120.15, Criminal Obstruction of Breathing or Blood Circulation (choking) pursuant to NY PL 121.11(a), and Harassment in the Second Degree pursuant to NY PL 240.26(1). The arresting officer had responded to a “radio-run” (911 call) for a family dispute. The complainant, Ms. Ingram, who is the defendant’s girlfriend, was outside of the house hysterically crying and explained to the officer that Mr. Valentine had choked her.

As you may suspect, domestic violence Assault cases, such as this one, can often be difficult to bring to trial because the victim/complainant will become uncooperative. The personal relationship between the victim and the defendant often leads to the victim changing their mind and not wanting charges to be “pressed.” The ADA’s (prosecutors) may still want to pursue the criminal charges, especially if they believe the defendant is a threat to continue the abuse. Nevertheless, in order to bring the case to trial the People must convert the initial complaint (in this case, the charges Ms. Ingram laid on Mr. Valentine in hysterics to the arresting officer) into an “information, which is a formal written accusation listing the offenses charged supported by non-hearsay allegations, which if true, establish every element of each of the offenses charged.

In Valentine the ADA did not have the cooperation of Ms. Ingram. All they had was the statements by the arresting officer retelling Ms. Ingram’s initial verbal complaints. On its face, this would appear to be hearsay and thus not enough to support the allegations. [Remember, Hearsay is an out of court statement by a person, offered to prove the truth of the matter asserted.] However, as I mentioned at the outset, there is a strategic trend amongst the ADA’s in the New York City area criminal courts, which was employed in this case. In Valentine, the People made a motion “to retain the charges on the ground of an excited utterance exception to the hearsay rule.” That is, the prosecution argued that while the testimony of the officer reiterating the statements of the victim, Ms. Ingram, are hearsay, they should be allowed because they actually were “excited utterances.”

Hearsay rests on the premise of allowing the opposition an opportunity to cross-examine the speaker so the jury can weigh the truth of a statement. The logic behind the excited utterance exception is that if someone blurts something out in the heat of a moment (“contemporaneously with the event”) that statement can be trusted because the speaker did not have an opportunity to reflect enough to make up a lie.

Despite the prosecutor’s contention, the defense argued that the statements in this case are not an excited utterance and moreover, even if the statement about being choked was accepted it would not corroborate all of the elements of all the charges [the choking statement would only corroborate Obstruction of Breathing or Blood Circulation- NY PL 121.11. The court felt that in this Valentine case, the excited utterance could not apply. The court assessed the nature of the event, the amount of time that elapsed between the occurrence and the statement and the activities of the declarant between the event and the statement. Here there was no real proof of how much time elapsed between the radio run of domestic violence and the officer’s arrival at the scene. Moreover, just because the complainant was “crying, upset, afraid and hysterical” did not necessarily mean that she had no time to reflect or had no opportunity to fabricate a story. Therefore the People failed to show that the statements were not the product of studied reflection or fabrication, and the charges could not be supported.

It is important to note that the court here correctly recognized that prosecutors can use the excited utterance in lieu of a supporting deposition in order to convert a complaint to an “information.” However, the court wisely used restraint in applying this principle. The prosecution must show that they statement was truly an “excited utterance.”

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Crotty Saland PC is a New York City criminal defense firm representing those target or arrested for crimes throughout the region.

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