Suffolk County District Attorney (Alfred Croce and Marion Tang of counsel), for appellant. Gina Gorgone, respondent pro se (no brief filed).

Appeal from an order of the District Court of Suffolk County, First District (James A. Saladino, J.), dated November 28, 2022. The order granted defendant's oral motion to dismiss the accusatory instrument for facial insufficiency.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument for facial insufficiency is denied, the accusatory instrument is reinstated, and the matter is remitted to the District Court for all further proceedings.

Defendant was charged with menacing in the second degree (Penal Law § 120.14 [1]) in an accusatory instrument which, together with the complainant's supporting deposition, alleged that, while at the complainant's residence, defendant held a hammer in her right hand, cocked her arm back as if she was going to strike the complainant, and made a "hammering motion" towards the complainant while stating "I fucking hate you, I hope you die." The accusatory instrument further alleged that defendant's actions put the complainant in fear of serious physical injury.

At a court appearance, defendant, through her attorney, orally moved to dismiss the accusatory instrument on the ground of facial insufficiency. The People asked the court for an opportunity to respond to defendant's motion in writing, which request was denied. The District Court (James A. Saladino, J.) granted the motion, finding that a hammer was designed for household use and did not constitute a dangerous instrument or deadly weapon for purposes of establishing that element of menacing in the second degree (see Penal Law § 120.14 [1]). On appeal, the People contend that the District Court committed reversible error when, over the People's objection, the court granted defendant's oral motion without providing them with fair notice and an opportunity to respond in writing and that, in any event, the accusatory instrument was facially sufficient.

It is well settled that a motion to dismiss an accusatory instrument must be made in [*2]writing and upon reasonable notice to the People (see CPL 170.30 [1] [a]; 170.35 [1] [a]; 170.45, 210.45 [1]; People v Key, 45 NY2d 111, 116 [1978]; People v McDowdell, 78 Misc 3d 133[A], 2023 NY Slip Op 50449[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2023]). The failure to follow this procedure, which is intended to facilitate full development of the issues and an adequate opportunity for the People to contest the specific grounds asserted for dismissal, is clearly error and warrants reversal in and of itself (see People v Mezon, 80 NY2d 155, 160 [1992]; McDowdell, 2023 NY Slip Op 50449[U]; People v Knight, 58 Misc 3d 76, 78 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Leclair, 12 Misc 3d 133[A], 2006 NY Slip Op 51180[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). Here, the People did not waive these procedural requirements (see generally Mezon, 80 NY2d at 159-160; People v Jennings, 69 NY2d 103, 113 [1986]), as they timely objected to defendant's oral motion and requested an opportunity to respond. In view of the foregoing, defendant's motion should have been denied on this basis alone.

In any event, reversal of the order is required since we find that the accusatory instrument was facially sufficient. "A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 NY2d 98, 99 [1977]; see People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). Here, since defendant did not waive the right to be prosecuted by information, the accusatory instrument must be evaluated under the standards that govern the jurisdictional sufficiency of an information (see People v Hatton, 26 NY3d 364, 368 [2015]; People v Kalin, 12 NY3d 225, 228 [2009]; see also CPL 100.15; 100.40 [1]). To be jurisdictionally sufficient, an information must allege facts of an "evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]; see CPL 100.40 [1] [a]), the factual allegations in the information or in any supporting depositions which may accompany it must "provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]) and the information or any supporting depositions must contain "[n]on-hearsay allegations" which "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see People v Slade, 37 NY3d 127, 136 [2021]). "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]).

Pursuant to Penal Law § 120.14 (1), a person is guilty of menacing in the second degree when:

"He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm."

Furthermore, Penal Law § 10.00 (13) provides that a dangerous instrument "means any instrument, article or substance, including a 'vehicle' as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." While the statute does not provide a list of items which can be considered dangerous instruments (see People v Carter, 53 [*3]NY2d 113, 116 [1981]), courts have concluded that the focus of the statute is not on whether an instrument, article or substance is dangerous per se but whether the manner of use, or intended use, of that item transforms the item into something that can cause death or serious physical injury (see People v Owusu, 93 NY2d 398, 400 [1999]; Carter, 53 NY2d at 116; People v King, 194 AD3d 842, 842-843 [2021]; People v Ray, 273 AD2d 611 [2000]). Thus, a hammer has been held to be a dangerous instrument based upon the manner in which it was used(see People v Christian, 181 AD3d 704 [2020]; People v Holmes, 9 AD3d 689, 691 [2004]; People v Muhammad, 39 Misc 3d 136[A], 2013 NY Slip Op 50594[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]).

We conclude that the District Court erred in finding that, because a hammer is "something designed for household use," the accusatory instrument did not allege that defendant displayed a "dangerous instrument." Here, the manner in which defendant is alleged to have used the hammer in the accusatory instrument was sufficient to plead that it was a "dangerous instrument" as such term is defined in Penal Law § 10.00 (13). Consequently, the information charging defendant with menacing in the second degree (Penal Law § 120.14 [1]) was facially sufficient, as it contained nonhearsay factual allegations of an evidentiary nature which established, if true, every element of Penal Law § 120.14 (1) and defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1]; see Slade, 37 NY3d at 136).

Accordingly, the order is reversed and defendant's motion to dismiss the accusatory instrument on the ground of facial insufficiency is denied.

DRISCOLL, J.P., GARGUILO and CONWAY, JJ., concur.