Defendant's motion for an order dismissing the accusatory instrument as facially defective, precluding the People from offering evidence of statements "that are not included, or sufficiently described" in a "710.30" notice, precluding the People from offering evidence of any statements not included or sufficiently described in a demand to produce, and directing a hearing to determine the [*2]permissible scope of cross-examination of Defendant at trial is granted to the extent that the accusatory instrument is dismissed as facially defective (see CPL 170.30[1][a]).

Defendant originally stood accused, by felony complaint, denominated count one, of assault in the second degree (see Penal Law § 120.05[3]). He also stood, and remains accused, by misdemeanor complaints simultaneously filed with the felony complaint, of intentional assault in the third degree and resisting arrest (see Penal Law §§ 120.00[1], 205.30), denominated counts two and three, respectively. By the factual part (see CPL 100.15[3]) of each of these documents, the complainant (see CPL 100.15[1]), Nassau County Police Officer Stephen O. Burns, attests that Defendant, while on the Long Island Railroad, punched New York City Police Detective Jason Palamara in the face with a closed fist, that the detective was trying to "prevent passengers from being disorderly," that Defendant's conduct caused bruising and swelling under the left eye, and that "the victim" was treated at Nassau University Medical Center "for bruising, swelling and pain under his left eye and lacerations to his right knee." Insofar as count three is concerned, he additionally attests that "[a]fter identifying himself as a NYPD detective, in the course of performance of duty, the defendant did resist arrest by flailing his arms and trying to evade, causing the detective to fall which caused injury to his right knee." By each of these documents, Officer Burns further attests that he makes the allegations "on direct knowledge and/or upon information and belief," the sources of which are the "statements by the victim, photographs of his injuries, and a police investigation," the "supporting deposition of the victim and Defendant's written statement of admission." Each of these accusatory documents bears the form notice that false statements made therein are punishable as a class A misdemeanor pursuant to Penal Law § 210.45 (see CPL 100.30[1][d]). Officer Burns signed and swore to the truth of the contents of each, apparently before another police officer (see CPL 100.30[1][b]). By order dated July 22, 2010, the court (Massell, J.), making notations on the felony complaint, directed that the felony complaint be converted to an information accusing Defendant of reckless assault in the third degree (see CPL 180.50; see also Penal Law §120.00[2]). According to the minutes of the proceedings conducted on July 22, 2010 submitted by the People in opposition to this motion, the People handed up several documents at the time of the conversion, including a "710.30" notice, a copy of a written statement they attribute to Defendant, and a written statement made by Jason Palamara. Defendant's statement, which is signed, contains, in preprinted language, the following: "I . . .make the following true statement of my own free will, knowing that false statements made herein are punishable as a class A' misdemeanor pursuant to Section 210.25 of the New York State Penal Law." Mr. Palamara's statement, which also is signed, contains the following pre-printed language: "I [*3]volunteer the following information of my own free will, for whatever purpose it may serve, knowing that false statements made herein are punishable as a class A' misdemeanor pursuant to Section 210.25 of the New York State Penal Law." By his statement, Jason M. Palamara attests:

"At 0001 Hrs the u/s did get on e/b train at Penn Station. At approx 0030 hrs u/s was seated in an aisle seat when three male whites approx 20 yrs of age did enter and sit in the adjacent seat. While passing the u/s one of the males now known to me as Ingrilli, Anthony J. DOB 12/08/86 of 3532 Surele Rd. Wantagh LI 11793 did intentionally hit the u/s left shoulder with his RT hand before taking his seat. The u/s responded by asking, can I help you?' Mr. Ingrilli responded, you heard me.' The u/s stated, I clearly see that you are drunk. Just enjoy the rest of your night.' At this time one of the other males now known to me as Kennavane, Patrick C DOB 12/13/86 of 144 Lakeside Dr. Wantagh LI did state to u/s, I'm sorry for him.' U/S responded, its ok. Enjoy the rest of your night.' After a few minutes Mr. Ingrilli made a few additional statements under his breath prompting Mr. Kennavane to respond, bro, just stop. Shut up.' There was no further contact until the train reached the Wantagh Station at around 0040 Hrs. All three males exited their seats and walked over to the door w/ Mr. Ingrilli positioned next to the u/s who was in the seated position reading a book. Upon the train door opening Mr. Ingrilli proceeded to punch the u/s once about the left side of face causing bruising, swelling, and substantial pain. At this time the u/s stood up and proceeded to block an additional punch Mr. Ingrilli was attempting to throw. The u/s at this time identified himself by stating he was an NYPD Detective. Once the u/s verbally identified himself Mr. Ingrilli attempted to flee by flailing his arms and attempting to run from the train. The u/s was able to subdue Mr. Ingrilli on the station platform until the arrival of the police. While placing Mr. Ingrilli on the station platform [sic] u/s sustained lacerations to RT knee."

Although it apparently was the People's intention that only the statement of Jason Palamara be annexed to the accusatory documents, both the "710.30" notice and Defendant's statement are attached as well. By the statement attributed to him, Defendant admits he pushed Mr. Palamara, who was seated, on his left shoulder, and states that thereafter Mr. Palamara followed him on to the station platform, that Mr. Palamara grabbed him, pushed him from behind, causing him to fall on the station platform, and that, as soon as Mr. Palamara identified himself as an off-duty police officer "I did not move." There is no indication that Defendant served a demand to produce, but the People have served "VDFs."

Defendant now moves for the above-noted relief. Insofar as he seeks dismissal, he asserts that the accusatory instrument is defective because "not sworn to by the complainant." In this regard, he seems to urge that a claimed failure of Officer Burns to sign the accusatory instrument — evidently the copy of the accusatory instrument provided to Defendant at arraignment is unsigned — turns Mr. Palamara's attestations, made in what serves as a supporting [*4]deposition annexed to the accusatory documents at a later date, into hearsay. He also urges that, because Mr. Palamara does not describe the degree, nature, and duration of the pain he claims to have suffered, and because the condition he does describe "is consistent with a short-lived feeling experienced by physical contact," the accusatory instrument fails to demonstrate that Mr. Palamara sustained "physical injury." Referring to medical records he purports, but fails, to submit with his moving papers, he claims that Mr. Palamara told medical personnel that his pain was "mild" and that, on a scale of one to ten, his pain was at level two. Making no mention of the count formerly accusing him of assault in the second degree and now accusing him of reckless assault in the third degree, Defendant asserts that the accusatory instrument also fails to demonstrate that he intended to inflict pain. Insofar as count three is concerned — the resisting arrest count — Defendant urges that because there "was no probable cause for the arrest," that count must be dismissed as the arrest was unauthorized. Defendant also addresses his other, obviously alternative, requests for relief.

Insofar as Defendant seeks dismissal, but making no mention of the three discrete counts they have lodged against him, the People in cryptic opposition urge that because "there was a proper conversion pursuant to Section 180.50, the defendant's motion to dismiss the accusatory instrument as insufficient and jurisdictionally defective must be denied in all respects." Their only other contention on this issue is that whether "the victim" suffered physical injury "is an issue of fact for a jury to determine at trial." They briefly address Defendant's other requests for relief, address requests he did not make, and improperly include in their opposing papers a demand for discovery.

Defendant serves no reply.

Because the People have supplemented the accusatory instrument with the verified statement of Mr. Palamara, evidently to cure any hearsay defects, I regard all three charges as now interposed by information (cf. CPL 170.65; People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]). In order to be sufficient, a long form information must both provide reasonable cause to believe that the defendant committed the offense charged, and contain sworn, non-hearsay allegations supporting every element of that offense, and the defendant's commission thereof (see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson,92 NY2d 677, 685 NYS2d 409 [1999]; People v. Li, 192 Misc 2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]), but conclusory statements, unsupported by "facts," are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 [1986]). The information thus must demonstrate the existence of a prima facie case (People v Henderson, supra) but the prima facie case requirement "is not [*5]the same as the burden of proof beyond a reasonable doubt" (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (People v. Casey, supra; People v Henderson, supra), but it is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v. Voelker, 172 Misc 2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]) and separate documents must be read separately (see People v. Grabinski, 189 Misc 2d 307, 731 NYS2d 583 [App Term, 2d Dept. 2001]). Indeed, separate counts are to be regarded as separate accusatory instruments (see People v. Brooks, 190 Misc 2d 247, 736 NYS2d 823 [AppTerm, 1st Dept. 2001]).

I construe the People's response to Defendant's application for dismissal as an argument that the court's conversion of the felony complaint to an information pursuant to CPL 180.50 constitutes a determination that each count of the accusatory instrument is facially sufficient. Such an argument, however, is wholly without merit. Apart from the fact that counts two and three are unaffected by the proceedings conducted pursuant to CPL 180.50, the "law of the case" doctrine the People appear to invoke is not a straight jacket, but is instead a flexible doctrine that applies only where the parties have had a full and fair opportunity to litigate judicial determination of an issue in controversy (see Garcia v. City of New York, 104 AD2d 438, 478 NYS2d 957 [2d Dept. 1984; People v. Portorreal, 28 Misc 3d 388, 901 NYS2d 804 [Crim Ct, Queens County, Koenderman, J.). I recognize that the court, before ordering reduction of a charge made by way of felony complaint, must — with the People's but not the defendant's consent — make inquiry to determine whether there is reasonable cause to believe a defendant committed an offense other than the specified felony (see CPL 180.50[1]). If it is so satisfied, it may direct that the charge be reduced (see CPL 180.50[2]). If the reduction is one made as of right, the court may order the reduction based only on its discretion (see CPL 180.50 [2][a]). If the reduction is based on the interests of justice, however, it cannot act without the People's consent, whereas, again, a defendant's consent is not required (see CPL 180.50 [2][b]). And where the court determines that the felony charge should be reduced, it will then determine, in the short time available to review any supporting depositions that the People present during the relatively brief reduction proceeding, which type of accusatory instrument best reflects the reduction, e.g., conversion to an information through notations on the felony complaint, as was done here. To regard a unilateral determination about how the reduction should be effectuated as a definitive ruling that, e.g, a felony complaint — the function of which is to demonstrate the existence of reasonable cause to believe the defendant committed a felony (cf. CPL 100.40[3]; see also CPL 100.10[5]) — has been transformed into a facially sufficient information — the [*6]purpose of which is to demonstrate the existence of a prima facie case — simply because of court notations and, perhaps, annexation of a supporting deposition, is untenable and impractical (cf. People v. Bilsky, 95 NY2d 172, 712 NYS2d 84 [2000]). And to suggest, as the People apparently do, that a defendant from whom no input whatsoever is required is precluded from thereafter challenging the sufficiency of the converted or replacing document is to absurdly presume that both sides have had full and fair opportunity — before the reduction — to litigate the issue of sufficiency (id.; see also People v. Evans, 94 NY2d 499, 706 NYS2d 678 [2000]). The People advance these suggestions even though a defendant's challenge to the sufficiency of a particular accusatory instrument filed in a local criminal court — a challenge that must be made by formal motion — is statutorily unripe until that defendant has been arraigned on that accusatory instrument (see CPL 170.30[1]). Because the "law of the case" doctrine is not properly invoked here, the People's opposition to Defendant's application for an order dismissing the accusatory instrument is tantamount to no opposition at all.

Turning to Defendant's arguments, his claim that the accusatory instrument is not signed by "the complainant" and is therefore defective is also wholly without merit, a fact he could have realized by simple review of the original documents filed with the court. Moreover, although Officer Burns' attestations are premised virtually entirely on hearsay and thus contribute nothing to the prima-facie-case pleading requirement applicable here, not only is each of the factual parts verified (see CPL 100.30), so, too, is each of the statements — including that attributed to Defendant — annexed to the accusatory documents during the reduction proceedings conducted pursuant to CPL 180.50. Defendant's other arguments, however, are of some moment, even though he improperly goes outside the four corner of the accusatory instrument to refer to documents he does not submit, and even when considered together with the fact that both sides totally disregard the existence of the converted count — reckless assault in the third degree — a count that, because it was converted rather than replaced, remains, properly designated, count one.

In order to commit the crime of assault in the third degree, whether intentionally or recklessly, a person must cause another to sustain "physical injury"(see Penal Law § 120.00[1], [2]). "Physical injury" is defined as impairment of a physical condition or substantial pain (see Penal Law § 10.00[9]). Since the People come forward with no helpful argument, I can only infer that the reckless assault count — count one — stems from the altercation Mr. Palamara describes as having occurred on the station platform, when he is alleged to sustained "lacerations" to his right knee. Since mere "lacerations" do not constitute physical injury (see Matter of Philip A, 49 NY2d 198, 424 NYS2d 418 [1980]), count one is defective and must be dismissed. Turning to count two, Mr. Palamara's attestations establish only that Defendant delivered a single punch "about the left [*7]side of the face" of the seated Mr. Palamara. That Mr. Palamara offers the conclusions that the punch caused "bruising, swelling and substantial pain" adds nothing to his terse allegation of a punch. In fact, what is demonstrated by Mr. Palamara's attestations, and the context he gives to Defendant's conduct, is only the petty kind of physical contact delivered out of meanness that is not included in the legislative definition of physical injury (see People v. Chiddick, 8 NY3d 445, 834 NYS2d 710 [2007]; People v. Henderson, supra; and see Matter of Philip A, supra). I thus conclude that count two is also defective.

In order to be guilty of the charge made by count three — resisting arrest — a person must intentionally prevent or attempt to prevent a police officer "from effecting an authorized arrest" (Penal Law § 205.30). Insofar as this charge is concerned, Mr. Palamara attests only that once he informed Defendant that he was an off-duty police officer, Defendant "attempted to flee by flailing his arms and attempting to run from the train." This attestation is devoid of a demonstration that Mr. Palamara, who, according to the pleadings, thereafter merely subdued Defendant "until police arrived," was, by announcing his status, actually effectuating an arrest, let alone one that was authorized. In any event, because of the failures to demonstrate the existence of physical injury under counts one and two, there is, concomitantly, a failure to demonstrate that Mr. Palamara had reasonable cause to believe that Defendant committed either intentional or reckless assault, and thus a failure to demonstrate the existence of a lawful basis for arresting him on either charge. Since the People do not bother to come forward with any other theory to support the alleged "arrest," they effectively concede there is no demonstration in the pleadings that the "arrest" Defendant is claimed to have resisted was lawful one (see People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 [1987]). Dismissal of count three is thus required as well.

In light of the foregoing, I do not reach Defendant's other requests for relief.

So Ordered.