Defendant was arraigned on January 12, 2022, and is charged on the original complaint with one count each of Assault in the Third Degree, pursuant to Penal Law (PL) § 120.00(1), a class A misdemeanor; Attempted Assault in the Third Degree, pursuant to PL § 110/120.00(1); a class B misdemeanor; Menacing in the Third Degree, pursuant to PL § 120.15, a class B misdemeanor; and Harassment in the Second Degree, pursuant to PL § 240.26(1), a violation.

On March 15, 2022, the People served and filed a Superseding Information (SSI), and defendant was arraigned on the SSI on March 16. The SSI added a second count of PL § 120.15, as well as a second count of PL § 240.26(1) relating to a second incident that allegedly occurred ten minutes prior to the incident complained of in the original accusatory instrument.

On March 16, 2022, the People also served and filed a Notice of Disclosure Form, a Certificate of Compliance (COC), and a Statement of Readiness (SOR).

On March 21, the People served and filed additional discovery, along with a supplemental COC (SCOC) and SOR.

On June 17, the People served additional discovery and a second SCOC and an SOR.

On June 20 the defendant served and filed the instant motion to dismiss, and on June 21 a motion schedule was set by the court.

Defendant moves to dismiss the charge on the grounds of facial insufficiency, pursuant to Criminal Procedure Law (CPL) §§ 100.15, and 100.40, and on the ground that the People have exceeded their speedy trial time to announce ready on this matter, pursuant to CPL § 30.30(1)(b).

The People oppose the motion in its entirety.

Defendant served a Reply which was considered by the court.

For the reasons set forth in this decision and order, defendant's motion to dismiss is granted in part and denied in part.

The SSI provides, in pertinent part, that:

-on the first time and place of occurrence (TPO) on January 12, 2022 at approximately 12:50 AM "the defendant did shove the informant [Aleyda Austin] about the body", and that "the above-described actions caused the informant to fear imminent physical injury and to become alarmed and annoyed"; and

-on the second time and place of occurrence, on January 12, 2022, at approximately 1:00 AM, "the defendant did strike the informant about the face with a closed fist", and that "the above-described actions caused the informant to suffer swelling to the face, to suffer substantial pain, to fear further physical injury, and to become alarmed and annoyed".

Relevant Penal Law Statutes:

PL § 120.00(1) states in relevant part:

"A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes such injury to such person. . .".

PL § 10.00 (9) defines "physical injury", as: "impairment of physical condition or substantial pain".

PL § 120.15 states in relevant part:

"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".

PL § 240.26(1) states in relevant part:

"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. . .".

Defendant argues first that the "complaint fails to allege facts sufficient to sustain a finding of physical impairment consistent with current case law, which requires injuries that are far more substantial than those alleged in the instant complaint," Defendant's Memorandum of Law, pg. 3. He asserts that "the complaint is overly vague and fails to specify the nature and degree of injury caused as well as the extent of the acts alleged". Id. that the "allegations are conclusory", and that "[b]ecause the People failed to specify their allegations about the complainant's alleged substantial pain, the charge should be deemed facially insufficient". Id. at pg. 4.

Defendant argues that the menacing charge is insufficient as "the allegations must show [*2]evidence of threatening behavior". Id. at pg. 5. He maintains that the gravamen of menacing is that the defendant's actions cause fear of imminent physical injury that is separate from the "sudden attack". "A single factual allegation that the defendant pushed the informant should be deemed insufficient to support a charge of Menacing in the Third degree". Id.

Regarding the second TPO, defendant maintains again that "a sudden attack is insufficient to comprise the elements of menacing . . the . . . allegations do not rationally give rise to the conclusion that Mr. Carter intended to place Ms. Austin 'in fear of death, imminent serious physical injury, or physical injury'". Id. at pg. 6.

Finally, defendant argues that the People failed to make out the elements of harassment in the second degree in that "[t]here are absolutely no factual allegations that suffice to establish the requisite mental state". Id. at pg. 7.

Based on the foregoing arguments, defendant asserts that the People could not certify that every count of the accusatory instrument was facially sufficient pursuant to CPL § 30.30 (5-a), and therefore, their SOR was invalid, and all of the time from arraignment through the time the instant motion was filed is chargeable to the People.

Defendant next argues that the People did not provide the defense with four (4) categories of discoverable material prior to filing their COC:

1. Underlying New York Police Department (NYPD) disciplinary records, as well as Civilian Complaint Review Board (CCRB) records;

2. [Emergency Medical Service] EMS/[Ambulance Call Report] ACR;

3. Names and contact information for responding EMS Staff;

4. Names and contact information for all persons whom the prosecutor knows to have relevant information to any offense charged.

Defendant asserts that the failure to timely provide these materials mandates a finding that the People were not ready to proceed to trial when they filed the COC, and that the COC was improper, and all of time from the filing of the accusatory instrument through the time the defense moved to dismiss should be charged to the People for a total of 159 days of speedy trial time.

The People counter first that the factual allegations are sufficiently made out as to each of the charges.

The prosecution asserts that "[t]he injuries in this case amount to swelling about the complaining witness' [sic] face". People's Memorandum of Law, pg. 8. The prosecutor maintains that the issue of whether the degree of pain meets the sufficiency level is a matter for the trier of fact, and not the trier of law. The People conclude that defendant's "alleged act of striking the complainant about the face with a closed fist . . . led to a reasonable inference that Defendant intended to cause the complainant to suffer a physical injury". Id. at pg. 9.

As to this charge, as well as each of the charges the defendant seeks to dismiss for facial insufficiency, the People argue that even if the court would find any count insufficient, the court should not find that the People failed to properly certify readiness pursuant to CPL § 30.30 (5-a), as their SOR "was filed by the People in good faith and after exercising due diligence". Id. at pg. 10.

The People maintain that both menacing counts are facially sufficient. They assert that defendant's physical actions of shoving the complainant, in the 1st TPO, and punching her with a closed fist, in the 2nd TPO, both caused the complainant to fear further imminent physical injury.

Finally, the People counter that the accusatory instrument sufficiently establishes the elements of harassment in the second degree. They assert that "[b]y shoving the complaining witness about the body, and by later striking [her] about the face, the Defendant clearly threatened to subject Ms. Austin to physical harm". Id. at pg. 13.

Regarding the discovery not shared with the defense, the People counter defendant's assertions thusly:

1. "With respect to impeachment information, the NYPD provided the People with Central Personnel Index (CPI) reports for the police officers who performed some function that may require their testimony at a hearing or trial. . . The People, in turn, extracted the pending and substantiated allegations contained in those CPI reports and provided the Defense with that information in disclosure letters". Id. at pg. 21.

2. "EMS records are not subject to automatic disclosure because they are not within the People's possession or control". Id. at pg. 26. The prosecutor maintains that EMS requires a subpoena in order to produce these records, and that the People are not required by statute to obtain a subpoena to obtain such records. The People aver that they have, nonetheless, sent a subpoena to obtain the EMS records, and that they will turn over these records to the defense once they do obtain them.

3. Similarly, they argue that "[t]he names of responding EMS workers are not in the possession or control of the People". Id. at pg. 28. The People argue that the EMS records "are expected to contain the identities of the EMS workers", and once the People obtain EMS records, they will turn over the records to the defense. Id.

4. The People argue that "[d]espite diligent efforts to obtain information regarding [person with relevant information], the People have not been able to identify that individual to date". Id. at pg. 30. They aver that while the complainant did inform the People that defendant's ex-girlfriend was present at the start of the incident, the complainant does not have contact information for that individual. The People, therefore, cannot share that information with the defense.

The People conclude, therefore, that they should only be charged with 63 days of speedy trial time from arraignment on January 12, 2022, until March 16, when they served and filed the COC and SOR.

Facial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution. People v. Alejandro, 70 NY2d 133, 139 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must: 1. allege facts of an evidentiary nature supporting or tending to support the charges; and 2. include non-hearsay factual allegations, which, if true, establish every element of the offense charged. People v. Dumas, 68 NY2d 729 (1986).

While the burden is on the People to make out a prima facia case for the offenses charged in the accusatory instrument, this requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Kalin, 12 NY3d 225, 230 (2009). Rather, the accusatory instrument must give the accused sufficient notice to prepare an adequate defense from being tried twice for the same offense. Id.

As to the requisite intent for the charges, the court notes generally that it is permissible to infer [*3]that "a person intends that which is the natural and necessary and probable consequences of the act done by him". People v. Getch, 50 NY2d 456, 465 (1980).

A leading and oft cited case on whether the threshold of physical injury has been met to establish the facial sufficiency of assault in the third degree is a case cited by both counsel, People v. Henderson, 92 NY2d 677, 680-681 (1999). Here, the Court reinstated the criminal court conviction of assault in the third degree and held that the factual allegations that the defendant "kicked [complainant] in the legs, causing him to suffer contusions and swelling. . . were sufficient to constitute 'physical injury' to support a valid local criminal court information. Where a court finds that the allegations of pain are conclusory and without sufficient support, the assault charge will be found to be insufficient. People v. Perez, 40 Misc 3d 448 (Crim. Ct., Queens County 2013).

In this case, the complainant asserted that she was in substantial pain as a result of being punched in the face by the defendant with a closed fist which resulted in swelling to her face. Based on these factual assertion, there is a reasonable inference that the act of violence caused "more than a little pain". People v. Ouza, 54 Misc 3d 1205(A), *4, (Crim. Ct., New York County 2017) citing People v. Chiddick, 8 NY3d 445 (2007); accord, People v. Calixto, 29 Misc 3d 798 (Crim. Ct., New York County 2010).

In view of the foregoing, the facial sufficiency of this count is met.

Menacing is made out when the defendant intentionally places or attempts to place the victim in fear of physical injury.

To establish the sufficiency of this charge there must be sufficient allegation of threatening behavior separate from the sudden attack. People v. Shenay, 68 AD3d 576 (1st Dept. 2009); People v. Amakye, 65 Misc 3d 128(A) (App. Term, New York 2019), where conviction of menacing in the third degree was vacated and the count dismissed as jurisdictionally defective since it failed to allege any threatening behavior "before, after, or otherwise separate" from defendant's complained of behavior of scratching complainant's cheeks and pulling complainant's necklace and dress. Accord, In re Angel C., 93 AD3d 602 (1st Dept. 2012). See, William C. Donnino, Practice Commentaries, Book 39, Penal Law § 120.15: "In a pure menacing situation, there is no injury and thus no assault; nor is there an intent to cause injury and thus no attempted assault. . . The intent is to frighten, not necessarily to injure". See also, People v. Woods, 54 Misc 3d 453 (Crim. Ct., New York County 2016).

The facts alleged herein do not sufficiently support a finding that defendant intended to place the complainant in fear of imminent physical injury. Based on the foregoing, both counts of this charge are found to be facially insufficient.

PL § 240.26(1) is made out when with intent to harass, annoy or alarm, the defendant shoves. . . or otherwise subjects another person to physical contact.

The acts alleged herein, namely that defendant did shove, as well as did strike complainant in the face with a closed fist, sufficiently sustain the information as to the prima facia standard of the two counts of this charge. See, People v. DiBrino, 16 Misc 3d 1106(A) [*4](Justice Ct., Westchester County 2007), finding PL § 240.26(1) sufficiently alleged where the facts assert that defendant did throw an envelope at complainant causing stinging pain and a red mark on her face.

Plainly, an intent to harass, annoy or alarm, is fairly inferred from the act of shoving as well as from the act of striking another in the face with a closed fist. See, People v. Combs, 38 NY2d 868 (1976); People v. John-Connor, 57 Misc 3d 142(A) (App. Term, 1st Dept. 2017), lv. denied, 30 NY3d 1106 (2018).

The court finds that these counts are made out by defendant's actions and are, therefore, facially sufficient.

The court notes that defendant raises no facial insufficiency argument with regard to the attempted assault in the third degree, and that in any case the court finds this charge adequately alleged.

In order to stop the speedy trial clock, an SOR must be accompanied by a certification by the prosecutor that all counts in the accusatory instrument are both converted and are facially sufficient. CPL § 30.30(5-a) provides in pertinent part:

"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 100.40of this chapter . . ."

Failure to comply with the certification mandated by CPL § 30.30(5-a) will result in a finding that the SOR was invalid and that the speedy trial clock continued to run. People v. Minor, 74 Misc 3d 1205(A) (Crim. Ct., Kings County 2022); People v. Ward, 73 Misc 3d 1221(A) (City Court, Poughkeepsie 2021).

However, when the People file the required certification, their SOR will be valid where the People certify pursuant to CPL § 30.30(5-a) in good faith and with due diligence, and where the facial insufficiency of a charge or charges was later determined by a court analyzing the allegations and the "nuance[s] of law". See, People v. Luzuriaga, Dkt. CR-021910-21KN, (Crim. Ct., Kings County 2022), Perlmutter J.

In the instant matter, the court does not find the People's SOR illusory and does not find the CPL § 30.30(5-a) certification was invalid due to the court's dismissal of offending charges pursuant to CPL §§ 100.15, and 100.40.

Defendant argues that the People failed to turn over discovery items in four (4) categories of discovery, and that this failure renders their COC illusory and their SOR insufficient to stop the speedy trial clock.

The court will address each category:

1. Police Disciplinary Records:

The People are imputed to be in possession of NYPD materials, and CPL § 245.20(1) provides that "[t]he prosecution shall disclose to the defendant all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control. . .including, [*5]but not limited to: (k): All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: (iv) impeach the credibility of a testifying prosecution witness". See, People v Smith, 27 NY3d 652, 662 (2016).

Accordingly, any underlying documentation in the possession of the NYPD and relating to the substantiated and unsubstantiated claims against a testifying officer must be turned over to the defendant as "the underlying facts of substantiated and unsubstantiated findings may provide a good faith basis for cross-examination" People v. Castellanos, 72 Misc 3d 371, 374 (Sup. Ct., Bronx County 2021); citing People v. Randolph, 69 Misc 3d 770, (Sup. Ct., Suffolk County 2020); see also, People v. Akhlaq, 71 Misc 3d 823 (Sup. Ct., Kings County 2021).

This court finds that the "disclosure letter" prepared by the prosecution, which amounts to a summary of the allegations of the officers' disciplinary records, does not satisfy the mandates of CPL § 245.20. Defendants are entitled to more than summaries prepared by the prosecution; they are entitled to detailed information so that they may both assess its relevance to the particular facts in the case and also evaluate how best to prepare arguments for use on cross-examination and possible impeachment of a witness.

The People are, therefore, ordered to provide the underlying records for each of the testifying officers to the defendant in order to comply with their obligations under CPL § 245.20(1).

With respect to CCRB records, the court notes that the CCRB is not a law enforcement agency, nor is it an agency within the People's control. See People v. Perez, 73 Misc3 173, at 183-84 (2021); see also, People v. McKinney, 71 Misc 3d 1221 (2021). Nonetheless, to the extent that the People are in possession or come in to possession, of any underlying documents relating to the CCRB matters, they are ordered to provide those documents to the defense.

The above mandates of disclosure notwithstanding, disclosure alone does not presume that the defendant may use all or, indeed, any of the records at a hearing or at trial. The trial court should review the records prior to trial once the issues are framed and the witnesses determined to rule on what portion of the records may be used at trial. "The trial court must balance the nature of the misconduct allegation, the police officer's role in the case, and the possibility of prejudice or confusion" (Castellanos, supra, at 376).

To the extent that the law remains unsettled regarding the scope of the People's discovery obligations, and as the People turned over discovery that they believed to be sufficient to comply with their statutory obligations, this court finds the People's COC valid. See, People v. Randolph, 69 Misc 3d 770, 773 (Sup. Ct., Suffolk County 2020), declining to invalidate the COC or impose other sanctions "[s]ince the People have been acting in good faith and have provided discovery in harmony with their understanding of the requirements"; see also, People v. Adams, 66 Misc 3d 918 (Sup. Ct., Queens County 2020), holding that the court's order directing the People to provide additional discovery did not invalidate People's prior COC where People had acted in good faith; accord, People v. Kelly, 71 Misc 3d 1202(A) (Crim. Ct., New York County 2021).

2. and 3. EMS Records ACR, and EMS Contact Information:

The court notes that absent certain limited circumstances not relevant here, EMS personnel do not act in a law enforcement capacity, and their contact information as well as any medical records they maintain, are therefore, not under the control of the People. People v. [*6]Alvarez, 71 Misc 3d 1206(A) (Sup. Ct., Queens County 2021); see, People v. Rahman, 74 Misc 3d 1214(A) (Sup. Ct., Queens County 2022).

The People are not under an obligation to subpoena records to turn over records to the defense. CPL § 245.20(2). Further, the defense may subpoena these records. Id.

4. Information Regarding a Possible Eye-Witness:

The People credibly argue that they used due diligence to obtain information regarding a possible witness to the incident, but that they do not have and that they are thus far unable to obtain that person's contact information. As they cannot turn over that which they do not have and have been unable to procure with due diligence, the court will not invalidate their COC for failure to turn over this information.

Pursuant to the foregoing, two (2) counts of menacing in the third degree are found facially insufficient.

Pursuant to CPL § 170.35(1)(a), the accusatory instrument 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 amend and file a superseding information within the time available to them under CPL § 30.30. People v. Nuccio, 78 NY2d 102 (1991); People v. Osgood, 52 NY2d 37 (1980).

Accordingly, while the Court is dismissing two (2) counts of menacing in the third degree, it does so with leave for the People to supersede within the time remaining under CPL § 30.30.

As the court finds that the People are charged with only 63 days of speedy trial time, defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is denied.

The above notwithstanding, and in view of the court's finding as to the police disciplinary records, it is further:

ORDERED that the People are to disclose^[FN1] to the defense the underlying NYPD disciplinary records of any testifying officer, well as any CCRB records currently in the prosecution's possession.

The records referred to herein shall be disclosed to the defendant within 14 calendar days of the date of this order, subject to a request for a protective order, pursuant to CPL § 245.70(l) or a modification of the time period for disclosure for good cause pursuant to CPL § 245.70(2);

and it is further:

ORDERED that the People are to file a supplemental Certificate of Compliance confirming that they have provided all discovery required pursuant to CPL § 245.20 consistent with this decision.

In the event that the records are not turned over timely, the COC will be found insufficient and shall not be found to have stopped the speedy trial clock.

Defendant's motion is, therefore, denied at this time, with leave to resubmit to this court as directed above.

This is the decision and order of the Court.

This constitutes the decision and order of this court.