New York Criminal Lawyer Blog
The police received a 911 call from a woman who claimed to being beaten up by her husband. The police arrived at the scene within one minute of the 911 call and found that a husband was yelling and berating his wife. The man was standing over his wife who was cowered and hiding in between the furniture, hiding her face which appeared freshly bruised. She was crying.
A New York Criminal Lawyer said when the responding police officer asked her what happened, she said that her husband had punched her repeatedly in the head, the face and the back. She appeared to be bleeding from her left ear. She was in pain.
The police officer who responded executed a sworn statement stating the circumstances of his response to the 911 call. He stated that he found the couple in their home with the man standing over his wife who appeared to be in stress. She was crying and seemed to be in fear. When he asked what happened to her, she replied that her husband hit her and beat her up.
The police officers brought the woman to the hospital where the doctor asked her questions in the effort to establish a medical history. The woman reported that she was punched in the face, the head and the back. The doctor wrote up his diagnosis in the woman’s medical record as: domestic violence victim, it was unclear if any sex crimes had occurred. The doctor also wrote his recommendation for treatment: referred to a domestic violence center for psychological treatment.
The investigation by the police yielded the result that this is not the first time that the wife had made a complaint against her husband. This latest incident of domestic violence was the second within the last six months. The woman’s statement was taken by the police at the first time. She received medical treatment for her injuries and her medical records indicate that the diagnosis was also for assault due to domestic violence.
The husband was arrested and charged with two counts of misdemeanor assault in the third degree. After the husband was arrested, the wife recanted her statements. She refused to testify against her husband. Upon arraignment, he moved that the criminal information against him be dismissed because it was based on hearsay. He claimed that since his wife refused to testify against him, the police report and the police deposition as well as the medical records were all hearsay evidence and should be excluded.
The only question in this motion is whether or not the police report and the medical records of the wife are excluded evidence because they are hearsay.
The Court decided to deny the motion finding that the police report, the police officer’s deposition and the attending physician’s medical diagnosis were not hearsay as they were exceptions to the hearsay rule.
The Court ruled that the medical diagnosis of the attending physician at the emergency room were business records: they are records in writing which were entries in a book or form which was made as a memorandum or record of an event. The event was the woman’s appearance at the emergency room. Her responses which were noted in the medical records that her husband assaulted her were utterances that were elicited from her to determine the nature and extent of her injuries. The attending physician needed to know the factual events when and where the woman sustained her injuries. The woman’s utterances that she was assaulted are admissible under the exception of business records because her utterances were germane to the diagnosis. The attending physician diagnosed the woman to be suffering from domestic violence or domestic abuse for which he recommended not only the physical treatment of the woman but also her psychological treatment.
The police officer’s deposition statement that he heard the woman state that her husband beat her up is also an exception to the hearsay rule because it was ann excited utterance. The woman made those statements to the police officer at a time when she was in shock, when she had just experienced an emotional upheaval which was a startling or upsetting event. The woman had not yet had time or opportunity to reflect or fabricate a story. She was found by the police officer to be cowered on the floor being yelled at and berated by her husband who was standing over her.
The Court denied the husband’s motion for dismissal of the two charges for assault.
A New York City Domestic Violence lawyer will advice you that just because the victim of domestic violence refuses to testify does not mean that the charges for assault will be dropped. A New York Domestic Violence attorney will also advice you that the victim’s utterances to the police and to the attending physician at the emergency room can be used against you. At Stephen Bilkis and Associates, NYC Domestic Violence Lawyers are willing to advice and assist you to make sure that the assault charges are not dismissed even if the victim fails or refuse to testify out of fear or due to the nature of the injuries sustained. Call Stephen Bilkis and Associates if you have been charged with domestic violence, drug possession, or a theft crime, we are here to help.