People v. Giarraputo

• Decision Date: 13 April 2012
• Citation: 37 Misc.3d 486,2012 N.Y. Slip Op. 22222,949 N.Y.S.2d 852
• Parties: The PEOPLE of the State of New York, v. Helene GIARRAPUTO, Defendant.
• Court: New York Criminal Court

37 Misc.3d 486

949 N.Y.S.2d 852

2012 N.Y. Slip Op. 22222

The PEOPLE of the State of New York,

v.Helene GIARRAPUTO, Defendant.

Criminal Court, City of New York,

Richmond County.

April 13, 2012.

Sungso Lee, Law Offices of Stephen Banks, for The People of the State of New York.

Antonia Assenso, Daniel M. Donovan, District Attorney, for Defendant.

MARIO F. MATTEI, J.

On February 3, 2012, the defendant filed a motion seeking dismissal of the instant accusatory information pursuant to CPL 30.30 on two grounds, each of which alleged that the accusatory instrument in the case was not properly converted to an information in a timely fashion. First, defendant alleges that the statements in the accusatory instrument attributed to the detective/deponent with regard to what he observed on a videotape constituted hearsay; and, secondly, that a supporting deposition from the complainant which was made and sworn to prior to the existing superseding information being drawn did not convert the instrument.

The accusatory instrument alleges in pertinent part that the deponent observed video surveillance and “that defendant was observed using a New York State benefit card to purchase items.”

Hearsay is “testimony that is given by a witness who relates not what he or she knows personally, but what others have said and is therefore dependent on the credibility of someone other than the witness” (Black's Law Dictionary [7th ed. 1999] ).

It is axiomatic that personal observations of a condition, event, incident or tangible item made by a witness are not hearsay. A witness, presented with a photo, may testify as to who or what is in the photo to the extent that he has personal knowledge of the contents of the photo. The court finds no basis in law, reason or logic for not extending or recognizing this basic evidentiary premise to the contents of videos or their functional equivalent which are personally viewed by the witness. It would fly in the face of reason for instance to say that a witness who personally observed stills from a video can testify upon his personal knowledge as to what is in the still photo but could not testify about his personal observations of the actual video. This is abundantly clear where, as here, the defendant is contending that conversion of the deponents personal observations is required. Since there is no statement in the deponent's assertions that is based upon information supplied by another, there is no person that can provide or corroborate first hand knowledge of what the deponent is asserting, nor is there any such necessity. Thus, defendant's assertion that the accusatory instrument is facially insufficient based upon this ground is incorrect.

The defendant's second contention that the supporting deposition filed in this case from the complainant cannot convert the accusatory instrument because it was executed prior to the making of the accusatory instrument is not persuasive.

The original accusatory instrument contains the same factual allegations on the part of the deponent detective as detailed above. The first accusatory instrument filed in the case was found to be insufficient and unconverted at arraignment because it did not contain a place and date as to where and when the crime occurred. The part of the complaint attributed to information from the complainant—that she was the owner of the above-mentioned card and that the defendant did not have her permission or authority to use the card to purchase items—never changed. Under these circumstances there is no reason to obtain a second supporting deposition from the complainant as the facts she swore to never changed. (See, People v. Stridiron, 175 Misc.2d 16, 667 N.Y.S.2d 621 [Crim. Ct., Queens Co., 1997]; People v. Markowitz, 148 Misc.2d 117, 559 N.Y.S.2d 923 [Crim. Ct., N.Y. Co., 1990] ).

The procedural requirements for the factual portion of a local criminal court information are, simply: that it state ‘facts of an evidentiary character supporting or tending to support the charges' (CPL 100.15[3]; see,CPL 100.40[1][a] ); that the ‘allegations of the factual part ... together with those of any supporting depositions ... provide reasonable cause to believe that the defendant committed the offense charged’ (CPL 100.40[1] [b] ); and that the “[n]on-hearsay allegations [of the information and supporting...