Judge John Hecht
Anderson, charged with assault based on allegations he grabbed complainant Goode's neck and punched her, sought dismissal for facial insufficiency. Prosecutor's filed a superseding information on the same charges, but relied on the arresting officer's observations rather than Goode's allegations for the factual portion of the accusatory instrument. The information charged that an officer received a radio run of a 911 call reporting an assault in progress. It noted the officer arrived on the scene five minutes after the call and observed Goode visibly shaking and crying, and she exclaimed, "He had his hands around my throat." The officer also observed Goode had fingermarks around her neck, and redness and bruising to her face, finding Anderson present at the scene. The court noted there was no bright-line rule regarding how much time could pass before a statement no longer bore the trustworthiness of an excited utterance, but found the information demonstrated there was an ongoing emergency when police arrived and Goode's utterance was made under the stress brought on by the alleged assault. Under the circumstances, and with the officer's observations, Goode's statement qualified as an excited utterance, thus, Anderson's motion to dismiss for facial insufficiency was denied.
