A man is charged with attempted assault in the third degree, menacing in the third degree and harassment in the second degree.
The matter stemmed from an incident where the complaining witness was slapped by the man in her eye and the man did hold her neck.
The complaining witness further stated that the above-described actions made her suffer a red eye, facial swelling, and substantial pain, to fear further physical injury and to become alarmed and annoyed.
Subsequently, the complainant served and filed a report to convert the misdemeanor complaint into information. The report consists of two pages, the first page was prepared by a police officer and the second page was prepared by the complaining witness. The first page of the report identifies the man, includes specific information as to the time and place of the alleged incident, the relationship between the man and the complaining witness and is signed by the police officer. The second page of the report includes a written statement signed and sworn to by the complaining witness as the victim and signed by the same police officer as the witness or officer.
The man argues that the domestic incident report served and filed by the complainant was insufficient to convert the misdemeanor complaint into information. The man argues that the second page of the report does not include the man’s name. The man also argues that although the first page of the report does identify him, it does not meet the requirements of the law for a supporting statement. The man further argues that the complainant never converted the misdemeanor complaint into an information and that they are now outside of the speedy trial time period to bring the underlying action to trial.
In opposition, the complainant argues that both pages of the report are intended to be read together as a two page document and that the report is signed by the complaining witness. The complainant argue that even though only the second page of the report includes the complaining witness’s handwriting and signature, the top portion of the second page reads as the second page and therefore both pages of the report should be read together as a whole.
Initially, the court finds that although the man’s motion to dismiss the underlying action for failure to convert the misdemeanor complaint into information was made more that 45 days after the man’s arraignment on the misdemeanor complaint, there is good cause for determining the instant motion on its merits.
In the instant motion, the man does not argue that the accusatory document is jurisdictionally facially insufficient on any of the charges, but only that the report was insufficient to convert the non-hearsay factual allegations in the criminal complaint for the purpose of converting the misdemeanor complaint into information.
As a result, the man’s instant motion to dismiss is subject to the timeliness requirements. The man indicates in his moving papers that the first appearance following the complainant’s filing of the report, the man objected to the conversion of the misdemeanor complaint on the grounds that the complaining witness’s written statement on the second page of the report did not name the man as the perpetrator.
The court noted that the action sheet does not indicate that the man made any such objection, however, the complainant did not argue with the man’s claim that he objected to the conversion of the misdemeanor complaint into information. Further, the man did request a motion schedule on the next adjourn date to make the instant motion to dismiss. As a result, the court finds that there is good cause to determine the instant motion on its merits as the man promptly moved to dismiss the instant action after the complainant filed the report to convert the misdemeanor complaint into information.
Subsequently, the court disagrees with the man’s argument.
Initially, the court finds that the information provided by the complaining witness in her written statement clearly refers to the same incident as the accusatory document. The complaining witness both swore to the written statement on the report and is identified as the informant in the document. The complaining witness also states in her written statement that the incident occurred at 3:30 p.m., which is the same date and time of occurrence alleged in the accusatory document.
Further, the court disagrees with the man’s argument that the first and second pages of the report cannot be read together as a single document to convert the accusatory document into a misdemeanor information.
Sources revealed that the appellate term found that a misdemeanor information was facially sufficient based upon the information provided in the two-paged supporting statement. The appellate term also found that the man’s argument that the information was facially insufficient because he was not adequately named in the supporting statement, to be without merit indicating that when read together, both pages of the supporting statement clearly identify man.
Sources revealed that even if the first page of the report was prepared by a police officer, it clearly refers to the same incident as the complaining witness’s written statement and as alleged in the misdemeanor complaint that allegedly occurred at around 3:30 p.m. Although the non-hearsay basis for converting the misdemeanor complaint into information comes from the complaining witness’s written statement, which does not specifically include the man’s name, both pages of the report may be read together as a single document and when read together they adequately identify the man as the perpetrator of the alleged crimes. Further, the fact that the complaining witness’s written statement portion of the report does not specifically include the man’s name does not render it defective as a supporting statement.
As such, the court finds that the complainant converted the accusatory document into misdemeanor information by submitting a report. As a result, the court will calculate the speedy trial time accrued by the complainant.
Based on records, the man bears the initial burden of demonstrating that the complainant had exceeded the applicable time to bring the action to trial. If the man makes said showing, the burden shifts to the complaining to establish that certain periods of time should be excluded from the calculation of delay. It is the man’s duty, either in its initial submission or in a reply to the complainant’s opposition, to draw the court’s attention to the discrete periods that the man claims should have been chargeable to the complainant.
The man is accused of multiple charges and at least one of the charges is a misdemeanor punishable by a sentence of more than three months in jail. Then, the court stated that the complainant must be ready for trial within 90 days of the commencement of the criminal action, minus any excludable periods.
The court further notes that the man has not submitted any reply papers nor included in their moving papers any substantive legal arguments, apart from his position that the report was insufficient to convert the misdemeanor complaint into an information, as to why certain periods of time should be charged to the complainant.
Consequently, the man’s motion to dismiss the underlying criminal matter is denied.
Whenever you experience abuse in your own home and you want to file a case against the perpetrator, you can ask legal assistance from the Kings County Domestic Violence Attorney. On the other hand, if you are accused of domestic violence, you can hire the Kings County Criminal Lawyer or Kings County Criminal Defense Attorney. Just visit Stephen Bilkis and Associates office near you.