By oral motion of October 28, 2025, defendant moved for dismissal of the accusatory instrument as jurisdictionally defective. The People responded in writing on October 31, 2025. Defendant replied on November 14, 2025. After a review of the motion papers, defendant's motion was granted orally on the record on November 17, 2025. This decision explains the court's reasoning.

On July 23, 2025, defendant was arraigned on the charge of assault in the third degree (Penal Law § 120.00 [1]) and related charges stemming from a single incident. The criminal complaint was sworn to by Police Officer Kevin McDermott, based on information provided by complainant P.J. The complaint alleged that "[o]n or about July 22, 2025 at about 8:15 AM . . . [the complainant] observed the defendant strike him about the face with a closed fist then use his hands to apply pressure to [his] neck by forcefully squeezing it."

On the court date of September 25, 2025, the People filed and served the supporting deposition of P.J. (signed on August 11, 2025), affirming that the allegations set out in the complaint were true. The complaint was deemed an information on that date.

On October 10, 2025, the People filed and served a Certificate of Compliance (COC) and Certificate of Readiness (COR), off-calendar.^[FN1] On October 15, 2025, the People filed and served a supplemental COC and COR.

On the court date of October 24, 2025, the People and defense answered ready for trial. The matter was adjourned to October 28, 2025, due to court congestion.

On October 28, 2025, the People and defense answered ready for trial before this court. The People sought preclusion at trial of any inquiry about the complainant's criminal record (Transcript of October 28, 2025, at 4). Defense counsel responded that he would want to inquire [*2]about the complainant's prior weapon conviction, which was relevant to the instant allegations. During that discussion it was revealed that the date of the altercation alleged in the complaint was incorrect. Specifically, defense counsel stated that according to the complaint:

"The timeline appears to be that the complaining witness is saying an assault took place on July 22nd with the shooter that he did not report. And, on the morning of July 23rd, after having verbal confirmation — this is where it's more confusing because it seems to also report to 911 that there was an assault as well, but the criminal court complaint lists the assault as being July 22nd. Anyways, the report is made on the 23rd, first by him going to a local precinct. I think the 6. Then taking the report there, and then he goes out on the street and make a subsequent 911 call after flagging down officers. Then we have a 911 call where he's making various statements. The first 911 call and the second 911 call, again, reporting back to an assault the day before."

At that point, the Assistant District Attorney (ADA) stated:

"[c]orrection . . . . The police officers who I've spoken to indicated that was a typo. All this occurred on July 23rd. That's when the body-worn camera reflects that the victim was assaulted on the 23rd, walked to a police precinct . . . filed a report, and he was directed to police officers who then facilitated the identification and the arrest of the defendant"

Thus, it was on the morning of trial that the People revealed that the date on which the charged crime was alleged to have occurred was incorrectly stated in the complaint. Defense counsel noted that the incorrect July 22 date of occurrence was also set out in the NYPD 61 report. The court observed that the People's Automatic Discovery Form repeated the July 22 date as the date of the incident (tr at 8-9). Defense counsel characterized all of that as "a fundamental problem," noting his reliance on the date provided in the complaint (and other materials), the underling lack of notice, and the People's failure to have properly announced readiness for trial (tr at 7-10).

The court deemed defendant's argument a motion to dismiss for facial insufficiency and offered the People the opportunity to answer in writing, if the People would not concede dismissal for facial insufficiency and failure to file a valid certificate of readiness within the speedy trial period.

The People filed their answer on October 31, 2025. Defendant replied on November 14. The court orally granted defendant's motion to dismiss on November 17, 2025. This written opinion sets out the basis for the court's decision.

An accusatory instrument must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]) and demonstrate "reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [4] [b]). It must contain non-hearsay factual allegations that "establish, if true, every element of the offense charged and defendant's commission thereof" (CPL 100.40 [1] [c]; People v Dumay, 23 NY3d 518 [2014]; People v Casey, 95 NY2d 354, 360 [2000]; People v Dumas, 68 NY2d 729, 731 [1986]). The non-hearsay factual allegations must be sufficient to establish a prima facie case, a standard which does not require the same level of proof needed at trial (People v Suber, 19 NY3d 247, 252 [2012]).

The court must view the facts in the light most favorable to the People when determining the facial sufficiency of an accusatory instrument, and should approach factual allegations with a fair, not overly restrictive, or technical reading (People v Contes, 60 NY2d 620, 621 [1983]; Casey, 95 NY2d at 360). Particularly notable here, the allegations must give the defendant enough notice to prepare a defense and prevent the defendant from being tried twice for the same offense (id.; see also People v Dreyden, 15 NY3d 100 [2010]). "A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (Dreyden at 100) (citations omitted).

The CPL prescribes how and when it is permissible to amend an accusatory instrument. Date, time, and place errors may be amended in indictments and prosecutor's informations if the correction does not change the theory of prosecution and does not prejudice the defendant (see CPL 200.70). In People v Hardy (35 NY3d 466 [2020]), the Court of Appeals held that a prosecutor may not correct factual errors on a misdemeanor complaint or information. Rather, amendments must be made under CPL 100.50 through a sworn superseding accusatory instrument. Thus, in that case the trial court erred by authorizing the prosecutor to fix a typographical error as to the date of the incident. The conviction was reversed and the docket was dismissed (Hardy at 476). Accordingly, the People here are not authorized to amend the date from July 22 to July 23 without the filing of a superseding information, sworn to by the complainant.

The inaccurate date contained in the complaint and other materials generated by the People raise several fundamental concerns. Based on the complaint and complainant's supporting deposition swearing to its accuracy, as well as the NYPD 61 report and the ADF, all setting the date of the incident as July 22, the defense strategy featured what appeared to be complainant's delay in reporting the alleged incident, or a misunderstanding of whether there were one or two altercations between the defendant and complainant alleged, and whether the altercation charged occurred on July 22 or July 23 (tr at 7-9). The date of the charged crime asserted in the complaint — and the other materials — was in fact incorrect. Accordingly, the complaint was insufficient for failing to provide the defendant with proper notice. Thus, the People never filed a valid COC and COR (tr at 9 -10).

The People urge the court to excuse the inaccuracy in the complaint, arguing that their standard "on or about" language "allows for some flexibility" and provides defendant "a general timeframe to understand the accusation" (People's Affirmation at paragraph 3). That argument, offered without legal authority, is not persuasive. Nor is the People's contention that all the evidence in the case indicates the incident occurred on July 23, 2025. The standard "on or about" language used by the prosecutor's office might, in some circumstances, be permissible when a continuing course of conduct is charged, or perhaps when charges are based on events occurring long in the past, or when allegations are made by children. It cannot, however, be used as a catchall for any date inaccuracy, or to generally excuse administrative or clerical errors — particularly where those errors bear on and influence the defense. In People v Morris, the Court of Appeals recognized that the time of the offense is set in an indictment to provide notice to the defendant of the nature and cause of the accusation (61 NY2d 290, 294-295 [1984]). "[F]or a defendant to make his defense with all reasonable knowledge and ability and to have full notice of the charge, it is important that the indictment charge the time and place and nature and circumstances of the offense with clearness and certainty" (id. at 295 [internal quotations omitted]). The standard for determining whether an information provides sufficient notice of the [*3]date of the charged offense is reasonableness (id.). And while "[t]he lack of a precise date is not necessarily a fatal defect if it is not a substantive element of the crime," the determination of whether a charging instrument is insufficient for want of an accurate date of occurrence should be made on a case by case basis "considering all relevant circumstances" (id.).^[FN2]

Here, the People charged defendant with one assault against an adult, occurring on one date — July 22 — when the complainant "observed the defendant strike him about the face with a closed fist then use his hands to apply pressure to [his] neck by forcefully squeezing it." According to the People now, that single act was reported on the same date that it occurred. Thus, there was no need or purpose for the People to frame the allegation as an approximate date or period of time. Rather, the People's "on or about" language in the complaint was mere boilerplate in its inclusion, though it was materially misleading in its effect.

The defense strategy in this case was based, at least in part, on the facts as alleged through the complaint (and repeated through the NYPD 61/draft complaint, and the ADF), which indicated that the complainant did not report an assault until the day after it allegedly occurred, or, that two separate altercations occurred. Indeed, that was the first aspect of the defense discussed by counsel on the morning trial was to begin. The People did not alert anyone that the date was incorrect until after counsel articulated that aspect of the defense. Thus, the People had not provided defendant with the adequate notice as described in Morris. This case is distinguishable from People v Baez (80 Misc 3d 1206[A], 2023 NY Slip Op 50929[U] [Crim Ct, Bronx County 2023]), cited by defendant, where that "defendant concede[d] that he was never in doubt as to the date of the occurrence" such that the inaccurate date was not a failure of notice. Here, it was the sequence of activity, the possibility of multiple incidents, and an apparent delay in reporting that were the thrust of the defense — unwittingly based on the incorrect date set out in the complaint.

The People ask the court not to dismiss the docket on the basis of a typographical error, made in good faith, citing to People v Councel (77 Misc 3d 1132 [Crim Ct Kings County 2022] ["courts should not penalize the People with the extreme sanction of dismissal for typographical errors, honest omissions, and oversights made in good faith under the circumstances"]). To be clear, the court is not ascribing bad faith to the People. Nor is the court dismissing the case for a typographical error. Rather, the error here was material. The defendant was not notified of the correct date on which the charged act allegedly occurred. From the date on the complaint, defendant also fairly inferred that there may have been two altercations alleged, though only one was charged. Accordingly, defense strategy was influenced, if not based, on the incorrect date provided. In Councel, the court dismissed as insufficient 10 counts of criminal contempt that had been charged under the wrong subsection. The court did not dismiss the remaining 31 properly plead counts, even though the People had certified in their CPL 30.30 (5-a) statement that all 41 counts were sufficient.^[FN3] The error in this case is of a different nature. This complaint contains [*4]several counts of assault, harassment, and criminal obstruction of breathing all relating to a single incident. The date on which the complaint alleges that event to have occurred is incorrect. Amendment is not permissible under Hardy and the CPL.

Accordingly, the inaccuracy of the date in the instant case rendered the accusatory instrument jurisdictionally defective. The only permissible remedy would have been for the People to file a superseding information, sworn to by the complainant, with the corrected date. By the time the People reported the error, however, their time to remedy the factual portion of the accusatory instrument had elapsed (discussed infra).

Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b] and [4]). Computation for speedy trial purposes begins on the day after the commencement of the criminal action (see CPL 30.30 [1] [b]; People v Stiles, 70 NY2d 765 [1987]). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

The People announced ready after 79 days had elapsed on October 10, 2025, and again after 84 days had elapsed on October 15, 2025. As the accusatory instrument was jurisdictionally defective, these statements of readiness did not stop the speedy trial clock. On October 24, 2025, 93 days after the commencement of the action, the People again announced ready for trial. Defendant also announced ready. The matter was adjourned to October 28, 2025, due to court congestion. On October 28, 2025, both parties again announced ready for trial, and pre-trial proceedings commenced. It was not until this court appearance that the date discrepancy was disclosed. Accordingly, the People are charged with a minimum of 93 days from the commencement of the criminal action on July 23, 2025, to October 24, 2025.^[FN4] Since the People have exceeded the 90-day speedy trial period, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is granted.

The foregoing constitutes the opinion, decision, and order of the court.