DECISION and ORDER The People move for leave to reargue conversion of the criminal court complaint and the validity of their certificate of readiness in this case pursuant to CPLR §2221(d), or in the alternative, the Court’s inherent power to grant leave to reargue. See People v. DeFreitas, 48 Misc 3d 569, 576-77 (Crim Ct, NY County 2015 Statsinger, J.). Defendant opposes the motion and now moves to dismiss this case pursuant to CPL §30.30. The People filed their opposition to defendant’s motion to dismiss on March 9, 2021. For the reasons stated below, the People’s motion for leave to reargue is granted. Upon reconsideration, the Court adheres to its original decision: the superceding information cannot be deemed an information because it is based on hearsay allegations that do not fall under the excited utterance exception to the hearsay rule. Accordingly, the People’s certificate of readiness filed on February 5, 2021 is invalid and defendant’s motion to dismiss on speedy trial grounds is granted. BACKGROUND On November 14, 2020, defendant was arrested and charged with Endangering the Welfare of a Child (Penal Law §260.10[1]) and related charges stemming from an incident which allegedly occurred earlier that day. According to the complaint, defendant grabbed the complainant, his girlfriend, by the arm, causing bruising and substantial pain and placed one hand around her neck and forcefully squeezed it. Additionally, the complaint alleged that defendant committed these acts in front of the complainant’s three-year-old child. On February 5, 2021, the People filed and served a superceding information with factual allegations sworn to by Police Officer Ryan Malvagna. On that date, the People also filed and served an automatic discovery form, a certificate of readiness and a certificate of compliance pursuant to the People’s discovery obligations. On February 7, 2021, when all parties were present, the People moved this Court to deem the superceding information an information. Defense counsel objected, arguing that the superceding information could not be converted because it contained hearsay, specifically allegations based on a 911 call. When asked to respond, the People did not directly respond to defense counsel’s objection but maintained that they were ready for trial. This Court then declined to convert the superceding information to an information and adjourned the case to March 19, 2021 for supporting deposition. As a result of this decision, the People’s earlier certificate of readiness, dated February 5, 2021, was invalidated. On February 22, 2021, the People filed the instant motion. They argue that the Court erred in its refusal to convert the superceding information because it sufficiently comports with CPL §100.15(3) and the allegations that defense counsel claims are hearsay constitute excited utterances, which are an exception to the hearsay rule. In response, defendant argues that the 911 call in-and of-itself provides an insufficient basis to qualify as an excited utterance and the superceding information is devoid of any other facts that support the notion that the statements fall under this hearsay exception. Defendant further alleges that since the superceding information is insufficient, the People’s certificate of readiness is invalid and they have exceeded the speedy trial time constraints to be ready for trial. Defendant now moves to dismiss this case pursuant to CPL §30.30. DISCUSSION Motion to Reargue As an initial matter, CPLR §2221 sets forth the procedure under which a motion to reargue must be made, however, this section only applies to civil cases. The CPLR has no application to criminal actions except where expressly referenced (People v. Silva, 122 AD2d 750 [1st Dept 1986]). Nonetheless, in criminal cases, the trial court has inherent power to correct its own mistakes, including the “power to grant leave to reargue, where appropriate” (People v. DeFreitas, 48 Misc3d at 569; People v. Baptiste, 2020 N.Y. Misc LEXIS 10402 [Crim Ct, NY County 2020 Espinal, J.]). While the right to reargue “is not designed to permit an unsuccessful party to argue once again the issues previously decided,” People v. Oceanside Institutional Industries, Inc., 15 Misc 3d 22, 25 (App Term, 9th & 10th Jud Dist 2007), a motion to reargue may be granted upon a “showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law.” Id. Here, at the time the Court issued its decision as to whether the superceding information was facially sufficient, it was aware of all of facts relevant to the issue at hand. The People, however, argue that the Court misapplied controlling principles of law in its refusal to deem the accusatory instrument an information. The Court disagrees. Nevertheless, this Court grants the People’s motion for leave to reargue and, upon re-evaluation, finds that the superceding information cannot properly be deemed an information. Further, since the accusatory instrument is facially insufficient, the Court finds that the People’s previously filed certificate of readiness on February 5, 2021 is invalid. Facial Insufficiency An accusatory instrument must allege “facts of an evidentiary character supporting or tending to support the charges” (CPL §100.15[3]) and demonstrate “reasonable cause to believe that the defendant committed the offense charged” (CPL §100.40[4][b]). It must contain non hearsay factual allegations that “establish, if true, every element of the offense charged and the defendant’s commission thereof” (CPL §100.40[1][c]; People v. Dumay, 12 NY3d 518 [2014]; People v. Casey, 95 NY2d 354, 360 [2000]; People v. Dumas, 68 NY2d 729, 731 [1986]). The non-hearsay factual allegations must be sufficient to establish a prima facie case, a standard which does not require the same level of proof required at trial (People v. Suber, 19 NY3d 247, 252 [2012]). Whether the allegation is hearsay is determined on a facial reading of the accusatory instrument (Casey at 361). Moreover, a “non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception.” Id. at 360. When determining the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People (People v. Contes, 60 NY2d 620, 621 [1983]). Further, “that other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry” (People v. Deegan, 69 NY2d 976, 979 [1987]). Finally, the court should approach factual allegations with a fair, not overly restrictive or technical reading; the allegations must give defendant enough notice to prepare a defense and prevent defendant from being tried twice for the same offense (Casey at 360). Under the excited utterance exception to the hearsay rule, a statement about a startling event made by a participant in (or an observer of) the event is admissible provided the statement was made under the stress of nervous excitement resulting from the event (Guide to NY Evid Rule 8.17, Excited Utterance; see e.g. People v. Johnson, 1 NY3d 302, 306 [2003]). In determining whether a statement is an excited utterance, a court will consider (1) the nature of the startling or traumatic event; (2) the amount of time between the event and the statement; (3) the activities of the declarent in the interim to ascertain whether she had the opportunity to deliberate and departfrom the truth; and (4) whether circumstances indicate that the remarks were not made under the impetus of studied reflection (see People v. Edwards, 47 NY2d 493 [1979]). The essential element of this exception is that the declarant spoke while under the stress or influence of the excitement caused by the event (People v. Nieves, 67 NY2d 125, 134 [1986]). With respect to the time between the startling event and the statements, the time for reflection is not “measured in minutes or seconds but rather is measured in facts.” People v. Vasquez, 88 NY2d 561 (1996). Courts have found excited utterances in 911 calls to provide a facially sufficient, non hearsay basis for an information, provided these statements were made while the declarent was still under the stress of an exciting event (see e.g. People v. Angel, 2019 NY Misc LEXIS 5788 [Kings Co. Crim Court 2019 Changyong, J]), however, some have rejected such statements, even when the declarent is described as someone in an excited state, when the identity of the caller, without more, could not be authenticated (People v. Rasoully, 2016 N.Y.Misc LEXIS 3230 (Dist Ct, Nassau County 2016 Watson, J.). Courts have also declined to find an excited utterance when it is unclear as to when the event actually occurred in relation to the time the statement was uttered (see People v. Ramirez, 67 Misd 3d 305 (Crim Ct Bronx Co 2020 Rosenblueth, J.). In Ramirez, the declarent’s statement, “He hit me” said to a police officer responding to a motor vehicle accident could not be deemed an excited utterance because the complaint failed to indicate how much time had elapsed between the statement and the accident itself. The People argue that the hearsay allegations here, to wit: the statements by the 911 caller that defendant, identified in the call as her boyfriend, Carlos Rodriguez, choked her, grabbed her arms tight and threw her against the wall while she was holding her daughter, are excited utterances. While the events recounted by the 911 caller may have been a startling event and, according to the affiant, the caller exhibited signs of excitement, there are no facts in the information that show when this event actually occurred. There was no information to show, and declarent made no statements to indicate, that the event “just happened.” There is no description by the responding officer that, after responding to the scene, he observed that the complainant had any fresh injuries, nor does the affiant offer any other information that this event recently occurred. Without this information, the court is unable to determine if an adequate amount of time passed for the declarent to have the opportunity to reflect, deliberate and possibly deviate from the truth in her statement (see Ramirez, 67 Misc3d at 310). Therefore, this Court cannot deem these statements excited utterances and they cannot be used to convert the accusatory instrument to an information. As such, the People’s February 5, 2021 certificate of readiness is also invalid. Motion to Dismiss pursuant to CPL §30.30 Turning now to defendant’s motion to dismiss pursuant to CPL §30.30, subsection (1)(b) requires dismissal of an accusatory instrument when the People are not ready for trial within 90 days of the commencement of a criminal action where, as here, the charges carry the potential sentence of imprisonment of more than three months. The determination as to whether the People have satisfied their obligation under CPL §30.30 is done by computing the time between the filing of the accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable under CPL §30.30(4) and then adding any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. In a motion to dismiss pursuant to CPL §30.30, the defendant bears the initial burden of demonstrating that the People were not ready within the statutory time period (People v. Sibblies, 22 NY3d 1174 [2014]), People v. Santos, 68 NY2d 859 [1986]). The burden then shifts to the People to establish that a period should be excluded (CPL §30.30[4]). The accusatory instrument in this case was filed on November 14, 2020. The only certificate of readiness, filed on February 5, 2021, is invalid because the People have not converted the superceding information to an information. Since 100 days of speedy trial time have passed from the filing of the accusatory instrument to February 22, 2021 (the date that the People filed the instant motion to reargue), the People have exceeded the time constraints set under CPL §30.30. CONCLUSION Upon reconsideration of the People’s application to convert the accusatory information, the Court finds that the superceding information contains hearsay allegations that are insufficient to comply with CPL §§100.15 and 100.40. As such, this Court declines to deem the accusatory instrument an information and finds the People’s prior certificate of readiness invalid. Accordingly, it is hereby ORDERED that defendant’s motion to dismiss the accusatory instrument pursuant to CPL §30.30 is GRANTED. This decision has been emailed to the parties and the case is sealed. This constitutes the decision and order of the court. Dated: March 17, 2021
