People v. Polito
| Decision Date | 15 April 1985 |
| Citation | 488 N.Y.S.2d 593,128 Misc.2d 71 |
| Parties | The PEOPLE of the State of New York, v. Samuel POLITO, Defendant. |
| Court | New York City Court |
Defendant is charged with driving while intoxicated. He was arrested after having been involved in an automobile accident. The Information, sworn to be the arresting officer, states his personal observations as to intoxication. That defendant operated a vehicle is shown only by defendant's admission to the officer.
Defendant moves to dismiss the Information, since there are no non-hearsay allegations of an essential element of the crime, that defendant operated the vehicle. CPL § 100.40(1)(c). Defendant cites People v. Flushing Hospital, 122 Misc.2d 260, 471 N.Y.S.2d 745. He argues that although the admission may be used at trial, it is clearly hearsay, and is admissible only as an exception to the hearsay rule.
A literal reading of the statute would justify a dismissal of this Information. Although several courts have dealt with informations which contain hearsay which might be admissible at trial, none of them have dealt with this form of hearsay, an admission by the defendant. See People v. Fields, 74 Misc.2d 109, 344 N.Y.S.2d 413; People v. Conoscenti, 83 Misc.2d 842, 373 N.Y.S.2d 443; People v. Haskins, 107 Misc.2d 480, 435 N.Y.S.2d 261.
Fields found that the use of a hearsay exception in an information is implicitly authorized by the statute. Otherwise we would have the absurd result that the rules for informations would be more stringent than the rules for trials. Conoscenti and Haskins followed Fields in holding that "admissible hearsay" may be used in an information, but each finds that the hearsay offered in those cases was not admissible. In Flushing Hospital the proffered hearsay, an admission by an agent, might or might not be admissible. The fact of agency, and the authority of the agent must be shown.
That Court distinguished the three previous cases, pointing out that in each the hearsay was a business record, which was before the Court. The Court refused to extend the "admissible hearsay" analysis to the kind of hearsay offered in that case. Reliability of the hearsay in the other cases was assured, because the business record was there to be seen. In the Flushing case, a proper foundation was needed for the admission to be allowed into evidence at trial.
While in this case the hearsay is admissible without any foundation being laid, it will be the subject of a Huntley hearing. Until the people meet their burden, this statement will not be admitted at trial. This would seem to make its reliability at this stage even more suspect than the hearsay in the other cases.
At trial the reliability of testimony must be attested to by the sanction of an oath, and the same requirement...
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...under CPL § 100.15 and 100.40. People v. McKinney, 145 Misc 2d 460, 546 N.Y.S.2d 927 (NY City Crim. Ct.,1989), citing, People v. Polito, 128 Misc 2d 71, 488 N.Y.S.2d 593 (Rochester City Court, 1985). In the present case, the misdemeanor complaint, when read together with the filed supportin......