Judge Beth Beller

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Dampha, charged with assault and obstruction of breathing arising from an incident in which he allegedly assaulted his girlfriend, sought dismissal of the information for facial insufficiency. An officer responded to a radio run, and observed complainant crying, with redness and bruising on her face, and in her excited state indicated Dampha hit and punched her, and placed his hands around her neck resulting in difficulty breathing. The court concluded, after oral arguments, the statements by complainant to the officer were excited utterances, thus, an exception to the hearsay rule, thus, no supporting deposition was required to convert the accusatory instrument to an information. Prosecutors conceded there was no prima facie showing of physical injury, but argued the allegations were sufficient to establish attempted assault, asking the court to reduce the assault charge. The court agreed finding while the allegations were insufficient to establish physical injury, they were sufficient to establish Dampha attempted to cause physical injury to complainant. Also, the circumstances were sufficient to support an inference the pressure applied by Dampha to complainant's neck was done with intent to impede her normal breathing. Dismissal for facial insufficiency was denied.

Judge Beth Beller