Criminal Court of the City of New York, Kings County, October 10, 2023

The Legal Aid Society (Leila Selchaif of counsel) for defendant.

Eric Gonzalez, District Attorney (Nidah Sheikh of counsel), for the People.

Defendant is charged with endangering the welfare of a child and related charges and moves to dismiss the accusatory instrument arguing that this count is facially insufficient thereby rendering the People's certificate of compliance (COC) and statement of readiness (SOR) illusory.

The People oppose.

For the reasons explained herein, defendant's motion to dismiss is granted.

To be deemed facially sufficient a misdemeanor information must contain nonhearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offenses charged and, if true, the allegations must establish every element of each offense (see People v Alejandro, 70 NY2d 133, 137 [1987]; CPL 100.40 [1]). Facial sufficiency is determined by reviewing the factual portion of the accusatory instrument in conjunction with any supporting depositions. However, the prima facie requirement for the facial sufficiency of an information "is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v Smalls, 26 NY3d 1064, 1066 [2015] [internal quotation marks omitted]). "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{**82 Misc 3d at 676} given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]). The court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations (CPL 100.15; Alejandro, 70 NY2d at 135; People v Henderson, 92 NY2d 677 [1999]). The court need not negate every other plausible theory when a reasonable view of the [*2]facts establishes the offense charged (People v Dumay, 23 NY3d 518, 525-526 [2014]).

It is alleged that on April 17, 2023, at approximately 6:00 p.m., the defendant repeatedly punched the informant in the face with the defendant's closed fist, then placed his hands around the informant's neck and applied pressure. It is further alleged that the informant, who was born on XX XX, 2004, suffered difficulty breathing, a swollen and bruised eye, and a bruised lip, and was caused to fear further physical injury, and to become alarmed and annoyed.

Penal Law § 260.10 (1) provides in pertinent part the following:

"A person is guilty of endangering the welfare of a child when: . . .

"He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old" (emphasis added).

Defendant argues that this charge is facially insufficient because on the date of the alleged assault the informant was over 17 years of age.^[FN*] Defendant contends that this defect renders the People's COC illusory because their certification pursuant to CPL 30.30 (5-a), that all the charges contained in the accusatory instrument have met the requirements of CPL 100.15 and 100.40, is invalid. The People argue that despite this error, their certification was made in good faith, and they ask this court to dismiss the offending charge while preserving the remainder of the accusatory instrument for trial.

To grant the People's request would render CPL 30.30 (5-a) meaningless. The court recognizes the hypothetical situation where competing legal opinions might cause the People to adopt a position on sufficiency which is later rejected by the court. Indeed, this court held on a prior occasion that the People's statement is still valid notwithstanding a later ruling that one{**82 Misc 3d at 677} of the certified counts is facially insufficient (People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U] [Crim Ct, Kings County 2022]). In that matter and in the instant case, there must be demonstrable good faith and due diligence by the People.

Within that context the relief the People are seeking might be warranted. However, the underlying facts do not justify such action since, at a minimum, good faith implies the careful performance of one's duties. The defect in the underlying accusatory instrument is both conspicuous and undeniable. It belies the People's assertion that they acted in good faith when certifying the same. This conclusion is indisputable given the fact that the People filed a superseding instrument without noticing or removing the offending charge.

A defendant seeking dismissal pursuant to CPL 30.30 meets their initial burden by alleging that the People have failed to declare readiness within the statutorily prescribed period (People v Beasley, 16 NY3d 289, 292 [2011]). The statutory period to announce ready on an "A" misdemeanor is within 90 days from the date of commencement (CPL 30.30 [1] [b]). Once the defendant has shown that there is more than 90 days of delay, the burden of proving the existence of excludable periods falls upon the People (People v Berkowitz, 50 NY2d 333, 349 [1980]).

Defendant was arraigned on a misdemeanor complaint on May 10, 2023, charging endangering the welfare of a child and related charges. This commenced the running of the [*3]90-day period, less excludable time, within which the People must be ready for trial pursuant to the requirements of CPL 30.30 (1) (b). On July 7, 2023, the People filed a superseding information (SSI). On August 3, 2023, the People filed a certificate of compliance (COC) and a statement of readiness (SOR).

Once a defendant alleges that the People have failed to announce their trial readiness within the statutory speedy trial time, the People must demonstrate that the disputed adjournments are excludable by reference to a statutory provision (People v Luperon, 85 NY2d 71, 77-78 [1995]; People v Cortes, 80 NY2d 201 [1992]; People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]). The prosecution also bears the burden to clarify, on the record, the basis for an adjournment so that the motion court can determine to whom{**82 Misc 3d at 678} the adjournment should be charged (People v Cortes at 215-216; People v Liotta, 79 NY2d 841 [1992]; People v Berkowitz).

The defendant's motion to dismiss on speedy trial grounds is premised on the facial insufficiency of the endangering the welfare of a child charge, which has been accepted by this court. There is no dispute that the defendant was arraigned on May 10, 2023; that the People filed a superseding information on July 7, 2023; that a COC and SOR were filed on August 3, 2023; and that the defendant filed the instant motion on September 5, 2023. Accordingly, the People are charged 85 days from the arraignment to the date of the filing of the COC and SOR and 22 days from the filing of the COC and SOR through the filing of the instant motion. Thus, the People are charged a total of 107 days.

As the People have exceeded their 90-day speedy trial time limitation, the defendant's motion to dismiss is granted (CPL 30.30 [1] [b]).