The defendant is charged in three separate incidents, all of which are made part of the present motion. By way of introduction each of the dates and specific charges are set forth below:

April 2, 2022:

• Harassment in the Second Degree, Penal Law § 240.26 ^[FN1]

• Endangering the Welfare of a Child, Penal Law § 260.10 (5 counts)

• Assault in the Third Degree, Penal Law § 120.00(2)

• Reckless Endangerment in the Second Degree, Penal Law § 120.20

September 6, 2022:

• Harassment in the Second Degree, Penal Law § 240.26(3)^[FN2]

• Criminal Contempt in the Second Degree, Penal Law § 215.50(3)

December 11, 2022:

• Harassment in the Second Degree, Penal Law § 240.26(3)

• Criminal Contempt in the Second Degree, Penal Law § 215.50(3)

Procedural Posture:

The defendant pleaded not guilty to all charges and on April 17, 2023 filed a Notice of Motion to Dismiss pursuant to Criminal Procedure Law §§ 170.30(1), 170.35(1), and 100.40(1). The People opposed the motion and submitted the Affirmation in Opposition to Defense of William E. Szczepanski, Esq. sworn to on September 14, 2023. During a September 21, 2023 preliminary conference the parties agreed to submit all motion arguments on the papers. The ex-spouse of the defendant is the complainant and their minor children will be addressed as M. and C. or as the "children" due to their ages.

Conclusions of Law:

Facial Insufficiency:

CPL § 100.15 Information, misdemeanor complaint and felony complaint; form and content provides that:

1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.

2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.

3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a [*2]count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions. (Emphasis added).

CPL § 100.40 Local criminal court and youth part of the superior court accusatory instruments; sufficiency on face, provides in relevant part that:

1. An information, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15; and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. (Emphasis added).

"A valid and sufficient accusatory instrument is a nonwaivable, jurisdictional prerequisite to a criminal prosecution. Every information must contain an accusatory part and a factual part (CPL § 100.15 [1]). The allegations of the factual part of the information, together with those of any supporting deposition which may accompany it, must provide the court with reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL § 100.40 [1] [b]). Moreover, non hearsay allegations of the factual part of the information and/or any supporting depositions must establish, if true, every element of the offense charged and the defendant's commission thereof. This standard does not require proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude that a crime is being or was committed" (People v Russo, 24 Misc 3d 655, 656 [Nassau Dist Ct, First District, 2009]) (internal citations omitted).

"Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it (see CPL § 70.10(2)).

People v Casey (95 NY2d 354 [2000]) sets forth the guidelines for analyzing the facial sufficiency of an accusatory including the principle that 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.

April 2, 2022:

It is alleged that on April 2, 2022 while they were at their 5-year old daughter's tee ball practice the defendant directed vulgar and obscene language and comments at the direction of the complainant. He is also alleged to have swung a baseball bag with bats in it toward her resulting in a baseball bat striking her ear. After practice when she was leaving with their kids it is claimed that the defendant drove his vehicle toward the complainant and her car when she was buckling the children into their seats.

Endangering the Welfare of a Child, Penal Law § 260.10 (five counts):

There are five endangering charges pending and the defendant has moved to dismiss all five. His initial argument is that the Endangering the Welfare of a Child charges are insufficient because the accusatories fail to state which subsection of Penal Law § 260.10 is charged. This court has reviewed the cases cited by the defendant to support this argument including People v Nievas (— Misc 3d —, 2023 NY Slip Op 50182(U)U [Crim Ct, Queens County 2023]) where the accusatory failed to specify which subdivision of the public lewdness statute was being charged, and in a single count recited the elements for all three of the statute's separate subsection—leaving it "wholly unclear" to defendant what he was being charged with.

Beyond this threshold argument the defendant also argues the accusatories lack the requisite non-hearsay support in any of the supporting depositions.

For ease of reference the endangering accusatorries have been separated below so counsels' arguments and the court's rulings can be clearly understood.

The first two counts relate to allegations that the defendant made certain vulgar statements to the complainant while the children were on the complainant's lap. Regarding the failure to specify the subsection of the statute relied upon, the language in the accusatory makes clear that the "mental welfare" of the child is the allegation, and this is sufficient notice to the defendant to defend the charges. However, while the accusatories state M. and C. were on the complainant's lap at the time defendant made the subject statements, there is no non-hearsay proof of this in any of the complainant's multiple supporting depositions. As such these two counts are dismissed.

The next count relates to the allegation that the complainant was contacted by a baseball bat when M. was on her lap. For the same reasons as the first two counts, this charge is dismissed. The language from the accusatory ("physical welfare of child") is sufficient to allow the charge to initially survive notwithstanding the failure to specify the statute's subsection. However, insufficiencies remain, most notably the absence of non-hearsay proof that M. was on the complainant's lap when she was struck.

The final two endangering counts relate to allegations that the defendant drove his vehicle at the complainant while she was buckling M. and C. into her car. For the same reasons as the first three counts, these charges are dismissed. The language of the accusatories ("physical welfare of child") is sufficient to allow the charges to stand even though they fail to specify the statute's subsection. However, there is insufficient, non-hearsay proof that either child was "likely" to be injured (see People v Hitchcock, 98 NY2d 586 [2002]). The mere possibility of harm will not result in criminal responsibility. A showing that such harm is likely to occur is necessary (see id.). As such these charges are also dismissed.

Assault in the Third Degree, Penal Law § 120.00(2):

This charge is based on complainant's assertion that the defendant was carrying a baseball equipment bag that held a baseball bat, and when he turned his body and slung the bag the bat struck the complainant causing physical pain and the need to seek medical treatment.

The defendant's primary argument is that the accusatory fails to contain an allegation of the necessary physical pain to sustain the charge and is therefore facially insufficient. In response the People argue that the behavior of the defendant coupled with the "resulting physical impairment" establish a prima facie case for this charge.

A leading case on whether the threshold of physical injury has been met to establish the facial sufficiency of assault in the third degree is People v. Henderson (92 NY2d 677 [1999]) where the court reinstated the criminal court's conviction of assault in the third degree and held the factual allegations that the defendant "kicked [complainant] in the legs, causing him to suffer [*3]contusions and swelling. . . were sufficient to constitute 'physical injury' to support a valid local criminal court information."

Henderson guides the analysis in that a person is guilty of the misdemeanor of assault in the third degree when "[w]ith intent to cause physical injury to another person, he [or she] causes such injury to such person or to a third person" (Penal Law § 120.00 [1]). "Physical injury," in turn, is defined in the Penal Law as "impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]). Thus, under the prima facie case requirement set forth in CPL 100.40 (1) (c), the information must set forth sufficient factual allegations to warrant the conclusion that the victim suffered an "impairment of physical condition or substantial pain" (emphasis added). In Henderson the information alleged that the victim suffered "substantial pain , , , " [and in] defining "physical injury" as consisting of "substantial pain," the Legislature intended to set a threshold of something more than a mere technical battery (see id. at 680).

Where a court finds that the allegations of pain are conclusory and without sufficient support, the assault charge will be found to be insufficient (see People v. Perez, 40 Misc 3d 448, [Crim Ct, Queens County 2013]).

This court has reviewed the various supporting depositions to analyze the physical pain element and whether the accusatory demonstrates the requisite, objective threshold level of physical injury.^[FN3] The accusatory states complainant was struck causing physical pain and the need to "seek medical attention," and while there is direct proof that she was hit "on the side of the head in my ear," there is no non-hearsay, objective proof to sustain the factual allegations needed to establish a prima facie case of assault in the third degree (see People v Henderson, 92 NY2d 677, 680 [1999]). The accusatory alleging this charge is insufficient, and therefore dismissed.

Reckless Endangerment in the Second Degree, Penal Law § 120.20:

The final charge associated with the April 2, 2022 incident is reckless endangerment in the second degree where the defendant is alleged to have driven his vehicle toward the complainant while she was buckling their children into her car.

§ 120.20. Reckless endangerment in the second degree: A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

The defendant asserts that the accusatory is insufficient because it fails to demonstrate the necessary recklessness or substantial risk of injury. The People respond that the accusatory is facially sufficient because it alleges the defendant drove his vehicle directly at the complainant before abruptly stopping just short of striking her. The October 11, 2022 supporting deposition of the complainant indicates the defendant drove his truck at the complainant "nearly missing" her and making her feel scared for her safety. She continued that she was "trapped between my vehicle and the front end of his truck" until he backed up and sped away. The defendant cites People v Centola (— Misc 3d —, 2018 NY Slip Op 51369(U) [Webster Just Ct 2018]) where even though the defendant's vehicle contacted the complainant, the court held that "allegations must amount to more than a mere supposition" and dismissed the charge. In response the People [*4]argue that this type of incident where the defendant drives his car toward a complainant nearly making contact is sufficient to meet this initial threshold (see People v Marcial, 25 Misc 3d 1220(A) [Crim Ct, Queens County 2009]). But Marcial, with somewhat similar facts, does not adjudicate the sufficiency of the accusatory, but rather rules on a motion to consolidate that neither defendant opposed. As such its legal findings do not assist this court.

Nonetheless, this court has scrutinized the factual allegations of the accusatory and the supporting depositions and finds there is sufficient non-hearsay evidence to overcome the motion to dismiss.

"In order to establish that defendant engaged in reckless endangerment, the risk created by a defendant's conduct must be foreseeable and the conduct must actually create a risk of serious physical injury , , , [a]dditionally, there must be demonstrated a "gross deviation from the standard of conduct [of a] reasonable person" (People v Kelly, — Misc 3d —, 2020 NY Slip Op 50859(U) [District Court of New York, First District, Nassau County 2020]; PL § 15.05(3) (internal citations omitted).

A defendant acks "recklessly" when he "is aware of and consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists (see Penal Law § 15.05(3)).

Determining the sufficiency of a charge of reckless endangerment requires "an objective assessment of the degree of risk presented" by the defendant's conduct (People v Minott, NYLJ, Feb. 22, 2021 at p. 17, col. 2 [Crim Ct, New York County 2021, Swern, J.] quoting People v Chrysler, 85 NY2d 413, 415 [1995]). The defendant's subjective intent is irrelevant , , , and "[r]isk of injury alone will sustain prosecution," because the reckless endangerment statutes "seek to prevent the risk created by the actor's conduct, not a particular outcome" (People v Minott; quoting People v Galatro, 84 NY2d 160, 165 [1994]).

Here the supporting deposition of the complainant indicates the defendant drove his truck at the complainant "nearly missing" her and making her feel scared for her safety. There is evidence she was "trapped between [her] vehicle" and the front of the defendant's truck.

Because the reckless endangerment statutes are intended to address the risk created by a defendant's conduct, rather than a specific outcome, neither the absence nor the occurrence of a physical injury is dispositive as to the sufficiency of an information (see People v Minott; citing People v Galatro, 84 NY2d 160, 164-165 [1994]).

For all the foregoing, the defendant's motion to dismiss this count is denied.

September 6, 2022 Charge:

It is alleged that on September 6, 2022 the defendant intentionally disobeyed an order of protection by walking onto the property of the protected party (the complainant) and standing within 10 feet of her.

Criminal Contempt in the Second Degree, Penal Law § 215.50(3):

The defendant's argument is primarily that the accusatory instrument fails to sufficiently establish the factual basis of how the defendant was served with the subject order of protection and that he was not aware of the contents of the order of protection he is alleged to have violated.

This court previously ruled on a motion to dismiss the charges stemming from the September 6, 2022 allegations, and although the present legal argument differs somewhat in that now the defendant takes the position that the accusatory failed to sufficiently show defendant had knowledge of the order and a conscious objective to violate the order, there is a significant degree of legal overlap between the two motions to dismiss.

The criminal charge here is based on an underlying order of protection that was modified. On February 6, 2020 the defendant and complainant entered into a Parenting Agreement. Subsequently on May 3, 2022 the Honorable Margaret O. Szczur (Erie County Family Court) issued a temporary order of protection running in favor of complainant (hereinafter the "Szcur order"). On June 9, 2022, the Honorable Donna M. Siwek, J.S.C. (NYS Supreme Court) signed another temporary order that amended the Szcur order, specifically permitting "curb to curb" pick-ups and drop-offs as well as permitting attendance at, among other things, "special events" while still maintaining the 10-foot separation rule (hereinafter the "Siwek order").

As succinctly stated in People v Suber (19 NY3d 247 [2012]) an information requires a prima facie case:

"The Criminal Procedure Law's "reasonable cause" requirement also applies to an information (see CPL100.40 [1] [a], [b]) but this type of instrument is subject to a more stringent test: the information and any supporting depositions must set forth "[n]on-hearsay allegations" that "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]). This is referred to as the "prima facie case" standard for informations (see e.g. People v Casey, 95 NY2d at 362). "The reason for requiring the additional showing of a prima facie case . . . lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law" (People v Jones, 9 NY3d 259, 262 [2007] [internal quotation marks omitted])."

The Court of Appeals in People v Hatton (26 NY3d 364 [2015]) further sets the guidelines for this court to analyze:

"As a consequence, we assess the sufficiency of the accusatory instrument based on the standard applicable to an information. Under that standard, the factual part of the instrument must establish reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL 100.40 [1] [b]), and must contain " 'nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof' " (People v Dumay, 23 NY3d 518, 522 [2014], citing People v Kalin, 12 NY3d 225 [2009]; CPL 100.40 [1] [c]). Where the information fails to meet this requirement it is jurisdictionally defective (Kalin, 12 NY3d at 228-229). As this Court stated in People v Casey (95 NY2d 354, 360 [2000] [citations omitted]), "[s]o 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."

Regarding intent, "[o]ften, prosecutors have no direct evidence of intent or purpose, which must, as at trial, be inferred from surrounding facts. It is not enough for the prosecution to simply assume that a particular act is intentional—a careful, case-by-case analysis of the circumstances must provide reasonable cause to believe that the act is intentional or otherwise establish the mental state required for the crime. And while prosecutors need not rebut all innocent possibilities (see People v Hatton, 26 NY3d 364 [2015]), defense counsel can at least suggest that the allegations leave open realistic and non-speculative innocent scenarios" (See LEXIS PRACTICE INSIGHTS: Determining Sufficiency of Local Criminal Court Accusatory Instruments, By Daniel Nobel, Esq., Member of New York Bar, General Editor, and John M. Castellano, Esq., Member of New York Bar). Defendant's present "awareness" argument is [*5]essentially the same argument as the "intent" argument that was the basis of the first motion to dismiss.

"Furthermore, since proof of states of mind, such as guilty knowledge or intent, are normally based upon circumstantial evidence , , , for pleading purposes, the requisite mental state may be alleged on the basis of a logical inference from the act itself or upon the surrounding circumstances" (People v Dunham (Thomas), 135 NYS3d 764 [App Term, 2d Dept 2020] (internal citations omitted)). For all the foregoing, at this stage of the proceeding, the accusatory is sufficient on the question of defendant's "awareness" of the contents of the order (Todaro Affirmation, at ¶ 51).

As for the more narrow argument on the sufficiency of the accusatory's allegation that the order of protection was "duly served," the domestic incident report submitted with the accusatory reflects that the "order of protection registry" was checked and that a "stay away" order of protection was in effect. At this stage of the proceeding this court is tasked with determining if there is reasonable cause to believe the defendant committed the offense charged and that such charge is supported by non-hearsay allegations, or as relates to the question of whether the defendant was served with the order of protection an allegation that is admissible under a hearsay rule exception (see People v Casey, 95 NY2d 354, 361 [2000]). There is sufficiently reliable information which collectively is of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that such offense was committed and that it was committed by the defendant. And there is reliable, non-hearsay proof to sustain all elements of the offense charged in the accusatory part of the information. As such, this portion of the defendant's motion is denied and the charge is permitted to stand.

December 11 and 12, 2022:

The final series of allegations stem from December 11 and 12, 2022 where the complainant alleges that the defendant sent her offensive and degrading texts and that such communications violated a duly issued order of protection.^[FN4]

Harassment in the Second Degree, Penal Law § 240.26(3):

The accusatory charging Harassment in the Second Degree must meet all of the legal requirements laid out in the first two incidents, specifically a valid and sufficient accusatory must contain an accusatory part and a factual part and the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, must provide the court with reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL § 100.40 [1] [b]) (emphasis added). Non hearsay allegations must establish if true every element of the offense charged (see People v Russo, 24 Misc 3d 655, 656 [Nassau Dist Ct, First District, 2009]) (internal citations omitted) (emphasis added).

So long as the factual allegations of an information give an accused sufficient notice 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 (see People v Casey (95 NY2d 354 [2000]). The accusatory here fails to meet this minimum [*6]threshold because when applying the reasonable person test to the subject texts, the challenged conduct is spontaneous in nature (therefore failing to set forth the requisite intent) and is more accurately an "immature outburst [showing defendant's] displeasure" (see People v Stracci, 174 Misc 2d 926 [New York Just Ct 1997]) (internal citations omitted). As such the accusatory charging Harassment in the Second Degree, Penal Law § 240.26(3) is dismissed.

Criminal Contempt in the Second Degree, Penal Law § 215.50(3):

As an initial matter and relying on the legal reasoning of the September 6, 2022 ruling above, the accusatory sufficiently sets forth the basis for the defendant being served with the order. The issue that requires further treatment here is the defendant's argument that the accusatory instrument is facially insufficient because it fails to adequately set forth the defendant intended to disobey the subject order and to harass, annoy or alarm. This court is very mindful of its ruling on "intent" above as relates to the September 6, 2022 charges. But the court is similarly mindful that legal holdings cannot be grafted from one factual scenario to the next without critical analysis. In other words, one determination on "intent" does not necessarily fit all determinations on "intent" when it comes to orders of protection. With that said, the supporting proof here is not facially sufficient. First, the harassment allegation upon which the contempt charge is based has been determined by this court to be insufficient on its face. And even if a separate harassment charge was not filed, this court still finds that there is insufficient, non-hearsay, objective proof that the subject texts constituted harassment of the protected party necessary to sustain the contempt charge. For these reasons, the Criminal Contempt in the Second Degree, Penal Law § 215.50(3) count is hereby dismissed.

NOW, THEREFORE, upon reading and filing all of the motion papers as set forth above, and due deliberation having been had thereon, it is

ORDERED, that defendant's motion is hereby granted in part, and denied in part per the above decision, and it is further,

ORDERED, that all charges are dismissed except for the following: Reckless Endangerment in the Second Degree, Penal Law § 120.20 (April 2, 2022) and Criminal Contempt in the Second Degree, Penal Law § 215.50(3) (September 6, 2022), and it is further

ORDERED: the attorneys are directed to appear on a telephonic court conference on January 16, 2024 at 12:00 p.m. to discuss case status and appear in court on January 18, 2024 at 5:00 p.m. for further case proceedings.

This memorandum decision and order shall constitute the order in this matter for appeal purposes and no other or further order shall be required.