Lexis Nexis - Case Brief

Not a Lexis Advance subscriber? Try it out for free.

Law School Case Brief

People v. Swinger - 180 Misc. 2d 344, 689 N.Y.S.2d 336 (Crim. Ct. 1998)

Rule:

Pursuant to N.Y. Crim. Proc. Law § 100.40(1)(c), an information is sufficient on its face when non-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. Non-hearsay refers to that type of evidence which would be admissible at trial.

Facts:

Defendant Casimir Swinger and the complainant were husband and wife. The information alleged that Swinger assaulted the complainant on Jan. 10 and May 9, 1998. The allegations were supported by the certified medical records, which reflected complainant's statements that Swinger assaulted her. Furthermore, the allegations were supported by the deposition of a police officer who, in response to a 911 call, went to parties' house and heard Swinger yelling at complainant; he also observed that the complainant's face had fresh bruises, that she was crying, and that she was cowering on the floor. It was further noted that the complainant told the officer that Swinger hit her. The officer noted that she was under stress when she spoke.. Thereafter, Swinger was charged in a misdemeanor information with two counts of assault in the third degree, in violation of Penal Law § 120.00 (1). However, the complainant later recanted her statements and refused to testify at trial in New York state court. By motion, Swinger sought an order dismissing the information as facially insufficient pursuant to CPL 170.35. The defense argued that the information should be dismissed as facially insufficient because it contained inadmissible hearsay. Swinger claimed that the complainant's statement contained in hospital records was inadmissible under the "business records" exception to the hearsay rule because the statement was not essential to the complainant's diagnosis and treatment. Second, Swinger alleged that the complainant's response to a police officer's question was inadmissible under the "excited utterance" exception because the original information did not state the time that had elapsed between the occurrence and the statement, and because the reliability of the statement could not be tested since the complainant refused to testify.

Issue:

Was the information charging Swinger with two counts of assault in the third degree facially insufficient pursuant to CPL 170.35 and therefore subject to dismissal?

Answer:

No.

Conclusion:

The court denied Swinger's motion to dismiss. The court held that a misdemeanor information charging Swinger with having assaulted his wife should not be dismissed pursuant to CPL 170.35 merely because the complainant recanted her prior statements to the police and refused to testify. The allegations were otherwise supported by sufficient nonhearsay evidence consisting of certified medical records containing the complainant's statements that she had been assaulted and "beaten up" by Swinger and the responding police officer's deposition which stated that the complainant's face had "multiple bruises" which "appeared to be freshly inflicted" and that the complainant had stated that Swinger had hit and beaten her. According to the court, the statements made by the complainant to the hospital doctor were admissible under the "business records" exception to the hearsay rule since such statements were made for the purposes of the complainant's treatment. The court averred that identifying a patient as a domestic violence victim was relevant to a patient's diagnosis and treatment. All the hospital records, including the special domestic violence forms filled out by the complainant, were prepared in the ordinary course of the hospital's business and it was the ordinary course of business of hospital personnel to prepare such records. In addition, the court held that the complainant's statement to the responding police officer was admissible as an "excited utterance" as there was sufficient evidence in the record to conclude that the statement was made spontaneously, under the stress of a startling event, with no time for the complainant to have fabricated the incident or Swinger's participation in the incident.

Access the full text case Not a Lexis Advance subscriber? Try it out for free.
Be Sure You're Prepared for Class