DECISION & ORDER Defendant brings this Omnibus Motion, challenging the facial sufficiency of the accusatory instrument and seeking its dismissal, and otherwise asking the court to suppress evidence, grant various hearings, and allow the defendant to reserve the right to bring additional motions as necessary. Defendant was charged with criminal possession of a weapon in the fourth degree (PL §265.01 [1]), resisting arrest (PL §205.30), menacing in the third degree (PL §120.15), and harassment in the second degree (PL §240.26[1]). According to defendant, the court should dismiss the accusatory instrument pursuant to CPL §§170.30(1)(a) and 170.35(1)(a) because that instrument is facially insufficient to sustain the menacing in the third degree (PL §120.15) and resisting arrest (PL §205.30) counts. Defendant further argues that the People failed to file a valid CPL §30.30(5-a) certification, and that the Statement of Readiness (“SOR”) was illusory as a result. The court has considered the parties’ submissions, the court file, and the relevant law and rules as follows: 1. The court DISMISSES the count of menacing in the third degree (PL §120.15) as facially insufficient but DENIES defendant’s motion to dismiss the resisting arrest count (PL §205.30) and to dismiss the accusatory instrument. The People may proceed on the remaining three counts. 2. The court refers defendant’s suppression and preclusion motions to the trial court. 3. The court GRANTS the follow hearings before trial: A Mapp/Dunaway hearing; A Huntley/Dunaway hearing; A Sandoval hearing. 4. The court DENIES as premature a pre-trial voluntariness hearing for any statements sought to be used only on cross-examination of the defendant or for any statements made to civilian(s). 5. The court DENIES defendant’s reservation of rights to file additional motions subject to CPL §255.20(3) for leave to file upon a showing of good cause. DISCUSSION I. The Relevant Legal Standards and Statutes “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” (People v. Casey, 95 NY2d 354, 360 [2000]). An information and any supporting depositions must contain non-hearsay allegations, which provide reasonable cause to believe that the defendant committed every element of the offense charged (see CPL §100.40[a]-[c]). CPL §30.30(5-a) imposes a requirement on the People to certify the facial sufficiency of the accusatory instrument: Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed. According to the CPL §30.30 Practice Commentary: Subdivision (5-a) was designed to abrogate decisional law that authorized the prosecution to answer “ready for trial” on an accusatory instrument that stemmed from a misdemeanor complaint or felony complaint that had been converted to an information as to some but not all of the charges contained in the misdemeanor or felony complaint, as the case may be. (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, 2023 Electronic Update, Crim Pro Law §30.30). CPL §§100.15 and 100.40 contain the pleading requirements for a criminal information, and §100.40 also incorporates the pleading requirements in §100.15. CPL §§170.30(1)(a) and 170.35(1)(a) address motions to dismiss based on pleading defects: After arraignment upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that: (a) It is defective, within the meaning of section 170.35[.] (CPL §170.30[1][a]) (emphasis added). An information, a simplified information, a prosecutor’s information or a misdemeanor complaint, or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when: (a) It is not sufficient on its face pursuant to the requirements of section 100.40; provided that such an instrument or count may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend[.] (CPL §170.35[1][a]) (emphasis added). II. The Facial Sufficiency of the Charges Defendant challenges the facial sufficiency of the menacing in the third degree and resisting arrest counts. “A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.” (CPL §120.15). It is well-established that a charge of third-degree menacing requires more than a “verbal threat,” (In re Akheem B., 308 AD2d 402, 403 [1st Dept 2003]), and the defendant must engage in “a physical act of some sort, whether accompanied by words or not; however, words alone will not suffice.” (People v. Britt, 62 Misc 3d 320, 324 [Crim Ct, New York County 2018]). In this case, the information pleads that, while observing the Police Officer arrest another individual, defendant stated to the Officer, “Don’t touch him. I am going to fuck you up now.” “[A]s a result of defendant’s aforementioned verbal threats,” the Officer “experienced annoyance, alarm and fear for his physical safety.” “[D]ue to the aforementioned conduct of defendant threatening deponent, the defendant was placed under arrest.” “[D]uring such arrest, defendant flailed his arms, kicked his legs, and twisted his body, refusing to be handcuffed.” The Officer then observed defendant to have a switchblade knife in his front right pants pocket. These allegations do not sufficiently plead menacing in the third degree because defendant made a verbal threat — “Don’t touch him. I am going to fuck you up now” — without engaging in a physical act. It was this verbal threat that caused the Officer to fear for his physical safety. After defendant was placed under arrest, he refused to be handcuffed and engaged in physical actions. However, these actions did not accompany his “Don’t touch him. I am going to fuck you up now” statement, and there are no allegations that defendant’s physical actions caused the Officer to fear for his safety. The Officer observed defendant’s switchblade in his front right pants pocket, but there are no allegations that defendant ever reached for the switchblade. Thus, the court agrees with defendant that the charge of menacing in the third degree is facially insufficient. However, the resisting arrest charge can be supported by the harassment charge. “A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.” (PL §205.30). “A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause.” (People v. Jensen, 86 NY2d 248, 253 [1995]). Here, the information sufficiently alleges facts to show second degree harassment. “A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same[.]” (PL §240.26[1]). Defendant’s alleged statement to the Police Officer, “Don’t touch him. I am going to fuck you up now,” resulting in the Police Officer’s “annoyance, alarm and fear for his physical safety,” satisfies the pleading standards for the charge of second degree harassment (see People v. Lagano, 39 NY3d 108, 112 [2022]). Furthermore, as the People point out, “[D]efendant’s conduct also satisfies the elements of resisting arrest as it pertains to the arrest of the separately apprehended individual, or ‘another person’ as the statute allows.” (People Mem., at c.).1 The People argue that defendant’s alleged threat, “Don’t touch him. I am going to fuck you up now” to the Police Officer “was made to intimidate the officer into not effectuating the authorized arrest of this separate individual, and can therefore be said to be an attempt to prevent the officer from effectuating an authorized arrest of another person.” (Id.). The court agrees that defendant’s alleged statement also satisfies PL §205.30 with respect to the arrest of the separately apprehended individual. Accordingly, the court DISMISSES the count of menacing in the third degree (PL §120.15) as facially insufficient but DENIES defendant’s motion to dismiss the resisting arrest charge (PL §205.30), as that count is sufficiently pleaded. III. Defendant’s Motion To Dismiss Lower courts disagree whether a facially insufficient count in an accusatory instrument, which the People have certified under CPL §30.30(5-a), warrants dismissal of the entire instrument. There is no appellate authority, from the Appellate Division or the Appellate Term, shedding light on this issue. However, the statutory language discussed above, particularly “or any count thereof” and “a count thereof” in CPL §§170.30(1)(a) and 170.35(1)(a), suggests that a facially insufficient count is not necessarily grounds for dismissal of the entire accusatory instrument. Furthermore, CPL §30.30(5-a) is a subsection of CPL §30.30(5), which incorporates a component of good faith in the People’s statement of readiness. The court therefore sees no reason why the court would not employ the same good faith analysis used to evaluate the People’s compliance with their discovery obligations in evaluating a facial insufficiency argument. People v. Councel, 77 Misc 3d 1132, 1135 (Crim Ct, Kings County 2022), which contains a thorough analysis of this issue and the relevant legislative history, concludes that “the facial insufficiency of one or more counts in the accusatory instrument does not require dismissal in toto.” The court explains that CPL §30.30(5-a) was intended to remedy the People’s practice of partial conversion and was unrelated to facial insufficiency: Criminal Procedure Law §30.30(5-a) closely mirrors New York State Senate Bill S1738 which sought to amend “section 30.30 of the Criminal Penal Law to ensure cases go to trial in a reasonable timeframe.” 2019 NY Senate Bill S1738. In an effort to strengthen the requirements for trial readiness to ensure timely prosecutions, the legislature addressed, among other areas of speedy trial law, the practice of partial conversion. Prior to the enactment of CPL §30.30(5-a), courts treated each count of an accusatory instrument as “a separate and distinct accusatory instrument” and permitted “individual speedy trial treatment to discrete counts of an information.” People v. Brooks, 190 Misc. 2d 247, 736 N.Y.S.2d 823 (App. Term 1st Dept. 2001). The result was a piecemeal approach where two or more counts on the same docket were subject to multiple speedy trial timelines. Acknowledging the delay and confusion caused by such a practice, the legislature now requires the People to certify that every count of the information is properly converted, meets all the requirements of Article 100 of the Criminal Procedure Law, and that all defective counts have been dismissed. Donnino, Practice Commentary, McKinney’s Cons Law of NY, Book 11A, Criminal Procedure Law §30.30 (2021 ed). As litigants in this matter, the People do not have the final word on whether or not each count of their accusatory instrument meets the requirements for facial sufficiency. The most they can do is certify in good faith that it is their belief that each count of the accusatory instrument meets the requirements of CPL §§100.15 and 100.40. Whether an information or complaint is facially sufficient is a legal determination that is ultimately decided by the court. The legislature has made clear with the most recent amendments to the Criminal Procedure Law that courts should not penalize the People with the extreme sanction of dismissal for typographical errors, honest omissions, and oversights made in good faith under the circumstances. (Id. at 1335-36). See also People v. Arroyo, 78 Misc 3d 1239(A), at *6 (Crim Ct, Kings County 2023) (“Partial conversion refers to prosecution’s practice of announcing ready on certain counts of an accusatory instrument and not others. It is not when the court subsequently finds a count of an accusatory instrument to be invalid. The previous practice would frustrate the purpose of CPL 30.30 because the case could not actually go to trial because the People were not ready on all counts and would involve the computation of multiple CPL 30.30 timelines. Therefore, subsection (5-a) was specifically enacted under section CPL 30.30 to address this troublesome practice and had nothing to do with facial sufficiency analysis.”). In this case, the People argue, “The accusatory instrument lists many individual actions that, in the aggregate of defendant’s conduct at the time and place of occurrence, satisfy the elements of menacing in the third.” (People Mem., at a.). According to the People, defendant’s actions of kicking his legs and flailing his arms “can be seen as intentionally placing the arresting officer in fear of physical injury. There is no language in CPL §120.15 that requires the physical menacing be simultaneous with a verbal threat. The physical menace of flailing his arms and kicking his legs, which occurred shortly after defendant directly and intentionally threatened to ‘fuck up’ the arresting officer, gave the officer reason to fear imminent physical injury.” (Id.). The People are correct that CPL §120.15 does not require a verbal threat and physical menacing to be simultaneous. However, as discussed previously, the allegations of the accusatory instrument undermine the People’s argument that they have satisfied the elements of the charge. The statute states that a person is guilty of menacing in the third degree when “by physical menace” the person intentionally places or attempts to place another in fear of death, imminent serious physical injury or physical injury. The accusatory instrument pleads that defendant’s statement, “Don’t touch him. I am going to fuck you up now,” caused the Officer to experience “annoyance, alarm and fear for his physical safety.” Defendant was then placed under arrest, which precipitated defendant’s physical actions of flailing his arms and kicking his legs (“[D]ue to the aforementioned conduct of defendant threatening deponent, the defendant was placed under arrest.” “[D]uring such arrest, defendant flailed his arms, kicked his legs, and twisted his body, refusing to be handcuffed.”). According to the accusatory instrument, the officer had no reaction to defendant’s physical actions in terms of fearing for his physical safety. Instead, it was defendant’s statement that triggered the Officer to fear for his safety, not defendant’s physical reaction when he refused to be handcuffed — and the menacing charge therefore fails. Nevertheless, the court finds that the menacing count was not so insufficient that the People could not in good faith state ready for trial. As the Councel court explained, whether an accusatory instrument is facially sufficient is a legal determination for the court. The court has now made that determination. Thus, the court DENIES defendant’s motion to dismiss the accusatory instrument, and the People may proceed on the remaining three counts of criminal possession of a weapon in the fourth degree (PL §265.01[1]), resisting arrest (PL §205.30), and harassment in the second degree (PL §240.26[1]). IV. Defendant’s Suppression Motion or Request for Hearings Defendant makes the following motions for an order related to the suppression of evidence: Suppressing tangible, non-tangible, and testimonial evidence, or granting a Mapp/Dunaway hearing; Suppressing statements, or granting a Huntley/Dunaway hearing; Granting a pre-trial voluntariness hearing for any statements sought to be used only on cross-examination of the defendant; Granting a pre-trial voluntariness hearing for any statements made to civilian(s); Precluding the admission of evidence under CPL §710.30 for which proper notice has not been given pursuant to CPL §710.30(3); Granting a Sandoval hearing. The People oppose all defendants’ requests. The court refers defendant’s suppression and preclusion motions to the trial court and GRANTS the following hearings before trial: A Mapp/Dunaway hearing; A Huntley/Dunaway hearing; A Sandoval hearing. The court DENIES as premature a pre-trial voluntariness hearing for any statements sought to be used only on cross-examination of the defendant or for any statements made to civilian(s). V. Other Motions Lastly, the court DENIES defendant’s reservation of rights to file additional motions subject to CPL §255.20(3) for leave to file upon a showing of good cause. The foregoing constitutes the opinion, decision, and order of the court. Dated: December 19, 2023
