Defendant Clarence Campbell moves to dismiss the accusatory instrument based upon the purported facial insufficiency of count two, PL § 240.26 (1), pursuant to Criminal Procedure Law ("CPL") §§ 100.40, 170.30 (1) (a), 170.35 (1) (a), 30.30 (5-a) and 170.30 (1) (e); or in the alternative, for an order: suppressing identification and physical evidence; granting a pre-trial voluntariness hearing for statements sought to be used on cross-examination and statements made to civilians pursuant to CPL §§ 60.45, 710.20 (3), and 710.40 (3); precluding evidence pursuant to CPL § 710.30; requiring the prosecution to serve a Bill of Particulars pursuant to CPL § 200.95 (2) and (5); granting a Sandoval hearing; requiring the prosecution to disclose Brady/Vilardi exculpatory evidence; directing the prosecution to timely comply preserve and disclose police recordings pursuant to CPL § 245.55 (3); and granting the defendant's reservation of right to file additional motions.

Upon review and consideration of the submissions, court file and relevant legal authority, to the extent that defense counsel only challenged the facial sufficiency of count two, PL § 240.26 (1), the Court DENIES the defendant's motion for dismissal of the accusatory instrument; and further

GRANTS the defendant's applications seeking a Grillo hearing, and the right to make further motions to the extent provided by CPL § 255.20 (3); and

REFERS the defendant's request for a Sandoval hearing to the trial court; and

DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady and Vilardi disclosures.

On June 16, 2025, defendant Clarence Campbell was arrested and charged with violating Penal Law ("PL") § 215.50 (3) (criminal contempt in the second degree) and § 240.26 (1) (harassment in the second degree), a misdemeanor and a violation, respectively. Defendant was arraigned on June 17, 2025, and released on his own recognizance.

At the appearance held on July 10, 2025, the court noted that the People had filed a superseding information ("SSI"), upon which defendant was rearraigned. At the appearance held on September 15, 2025, the court was advised that the People had filed and served their automatic disclosures, Certificate of Compliance ("CoC") and Statement of Readiness ("SoR") off-calendar on August 12, 2025. On October 17, 2025, the court granted defendant's request for a motion schedule and the instant motion was filed on November 5, 2025, the opposition was filed on December 15, 2025, and defense counsel filed her reply on December 23, 2025.

The factual allegations contained in the SSI at bar provide, in pertinent part, that:

FC ^[FN1] states that on or about April 25, 2025, at approximately 10:40 PM inside of 1372 FRANKLIN AVENUE, County of the Bronx, State of New York, [ . . . ]

Deponent states that, at the above time and place, defendant went to informant's house and entered Deponent's bedroom while Deponent was laying down. Deponent further states that defendant began yelling at Deponent while filming Deponent with his cellphone and stating, in sum and substance, GET OUT OF MY ROOM, YOU NEED TO LEAVE. Deponent further states that Deponent got out of bed and defendant approached her and stood in close proximity to her while continuing to yell at Deponent. Deponent further states that Deponent asked defendant to step away from her, and to leave, and defendant refused.

Deponent further states that, as a result of defendant's aforementioned conduct, Deponent experienced annoyance, alarm and fear for her physical safety.

Deponent further states that Deponent is in possession of a valid order of protection issued by the Honorable Judge Liddie of the Bronx County Family Court on April 3, 2025, and valid until April 2, 2026, under docket number 0-00839-25, and that said order directs defendant in pertinent part to refrain from harassing and menacing informant.

Deponent further states that the defendant had knowledge of the aforementioned order of protection, in that said order indicates defendant was present in court when said order was issued, defendant was advised in court of the issuance, and contents of said order, and said order was personally served on the defendant in court.

To meet the jurisdictional standard for facial sufficiency, an information "need only set [*2]forth facts that establish reasonable cause to believe that the defendant committed the charged offense" (see People v Smalls, 26 NY3d 1064, 1066 [2015]; see also CPL § 100.40 [1] [b]; § 70.10). The accusatory instrument must set forth non-hearsay facts of an evidentiary nature which, if true, establish every element of the offense charged (see People v Suber, 19 NY3d 247 [2012]; People v Dumas, 68 NY2d 729 [1986]). It is well-settled that "mere conclusory allegations are insufficient [ ] and a purported information which fails to meet these requirements is fatally defective" (see People v Pamulo, 48 Misc 3d 1227 [A], 2015 NY Slip Op 51286 [U], **2 (Crim Ct, New York County 2015] [citations omitted] citing People v Alejandro, 70 NY2d 133, 136 [1987]).

Defense counsel asserts that the accusatory instrument fails to provide factual allegations that defendant committed the offense of harassment in the second degree, PL §240.26 (1) (affirmation of defense counsel at 12). Specifically, counsel asserts that while it is alleged that defendant entered the deponent's bedroom and stood in close proximity to and repeatedly yelled at the deponent, there are no allegations that defendant struck, shoved, kicked, or otherwise subjected the complainant to physical contact, or threatened to do so, without which the People cannot sustain their prima facie evidentiary burden (affirmation of defense counsel at 12-13). Additionally, defense counsel contends that the docket must be dismissed because the People cannot satisfy the CPL § 30.30 (5-a) requirement that the prosecution certify that all counts of the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40 (affirmation of defense counsel at 13). Defendant avers that the doctrine of partial conversion has been abrogated by CPL § 30.30 (5-a) and, thus, the prosecution has not been timely pursuant to CPL § 30.30 (1) (affirmation of defense counsel at 14-18).

Defendant further moves for omnibus relief, including suppression or preclusion of properly noticed statement, identification, and physical evidence (affirmation of defendant's counsel at 19-22). Defense counsel also seeks a Sandoval hearing and an order directing the People to comply with their disclosure obligations, including Brady/Vilardi evidence, serve a Bill of Particulars and preserve 911 and police reports (affirmation of defendant's counsel at 19-27). Lastly, defense counsel avers that because the People did not sufficiently plead count two of the accusatory instrument alleging harassment in the second degree, there could have been no violation based upon the facts at bar sufficient to demonstrate that defendant intentionally violated a court order (reply affirmation of defendant's counsel at 9).

The assigned ADA posits, inter alia, that "words that on their own, do not convey a direct threat still satisfy the demands of Penal Law § 240.26 (1) where they are accompanied by actions or gestures meant to incite fear" (People's affirmation at 3). Specifically, the prosecution maintains that a reasonable person lying in bed at 10:40 in the evening would feel a genuine threat from an intruder who demanded that she leave immediately (People's affirmation at 4). Additionally, the assigned ADA objects to defendant's motions to preclude and suppress evidence and responds to defense counsel's request for a Bill of Particulars by providing information concerning the date, time, location and name of the complaining witness (People's affirmation at 7). Lastly, the People assert that defense counsel's request for a Sandoval hearing is premature because the prosecution has not yet determined whether to introduce evidence of prior misconduct or criminal acts and no such designation is required more than 15 days prior to a trial date (People's affirmation at 7-8).

It is well-settled that although the allegations in an accusatory instrument must give rise to a prima facie case, courts have declined to give an accusatory instrument an overly technical reading (see People v Konieczny, 2 NY3d 569, 575 [2004]). Insofar as defense counsel concedes that count one of the accusatory instrument is sufficiently pled, the Court's analysis will concern the facial sufficiency of count two, harassment in the second degree, and whether the sufficiency of count two has any statutory import concerning the People's declaration of readiness pursuant to CPL § 30.30 (5-a).

Penal Law § 240.26 (1) provides that a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person the defendant "strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same," and which serves no legitimate purpose (see PL § 240.26 [1] [emphasis added]; see also https://www.nycourts.g ov/judges/cji/2-PenalLaw/240/240-26.pdf [last accessed January 28, 2026]).

The complaint alleges that on April 25, 2025, the deponent was laying down in her bedroom when defendant entered, stood in close proximity to the deponent and yelled "GET OUT OF MY ROOM, YOU NEED TO LEAVE." It is further alleged that the deponent asked defendant to step away and leave but he refused. The accusatory instrument does not include any allegation that defendant struck, shoved, kicked or otherwise subjected the deponent to physical contact, or threatened to do so, and the People concede that defendant did not make an explicit threat to the complainant.

However, the prosecution relies upon the holding in People v Chalupa, 57 Misc 3d 815 [Crim Ct, Bronx County 2017] for the proposition that defendant's presence in the deponent's bedroom at 10:40pm, and while standing in close proximity, yelling "GET OUT OF MY ROOM, YOU NEED TO LEAVE," could reasonably be inferred as a threat to use physical force to evict the deponent. This reliance is wholly misplaced where the Chalupa court found that defendant's statements were accompanied by conduct meant to incite fear and alarm during what was apparently a dispute over a parking space, to wit: the defendant initially exited his vehicle, made several vulgar utterances, drove off, and then made a U-turn and returned to where the deponent was located and allegedly rolled down his driver's side window, imitated a pistol with his fingers and then, while pointing at the complainant, repeatedly warned the other driver not to leave her car.

The facts presented here are markedly different from Chalupa. Defendant is not alleged to have engaged in conduct which caused or suggested physical contact. Specifically, although defendant entered the deponent's bedroom at night and yelled at her and refused to leave, statements alone cannot credibly sustain the People's prima facie burden when pleading a violation of PL § 240.26 (1) where there are no facts which indicate any physical interaction, or specific threat to do physical harm (see People v Bartkow, 96 NY2d 770, 772 [2001] ["(T)he crux of section 240.26(1) is the element of physical contact: actual, attempted or threatened"]). The Court finds that count two, PL § 240.26 (1), is not facially sufficient pursuant to CPL §§ 100.40 (1) (c) and § 100.15 (3) and, thus, must be dismissed.

Defendant contends that the prosecution's declaration of readiness must be impugned where at least one count of the accusatory instrument is subsequently held not to comply with CPL §§ 100.40 (1) (c) and 100.15 (3). However, the Court of Appeals has now rejected this notion and instead found that CPL § 30.30 (5-a) provides no "readiness-related consequence for a mistaken or incorrect certification" and that the appropriate remedy where a count is held to be facially insufficient is dismissal of the count rather than invalidation of the People's SoR (see People v Williams, — NE3d —, 2025 NY Slip Op 06535, *2-3 [2025] [internal citation omitted]). Accordingly, the dismissal of the PL § 240.26 (1) charge does not render the People's SoR invalid.

In a motion to dismiss an accusatory instrument where the top charge is a misdemeanor, pursuant to CPL § 30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, ninety days (see CPL § 30.30 [1] [b]; see also People v Flores, 79 Misc 3d 1239[A], 2023 NY Slip Op 50834[U], *2 [Crim Ct, Bronx County 2023] citing People v Galino, 38 NY3d 199, 205 [Ct of App 2022]; see also CPL § 30.30 [4]). The burden then shifts to the People to identify excludable delays (see People v Luperon, 85 NY2d 71, 77-78 [1995] ["(T)he People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]).

The People's 30.30 calculation commenced on April 18, 2025, the day after defendant's arraignment. The People's CoC and SoR were filed off-calendar on August 12, 2025 (April 18, 2025 to August 12, 2025 = 55 days chargeable). Consequently, the prosecution was timely pursuant to CPL §§ 30.30 (5-a) and 170.30 (1) (e), and defendant's motion to dismiss the accusatory instrument is denied.

The Court denies the defendant's request for an order suppressing statement, physical and identification evidence. Defendant's request for a Bill of Particulars is untimely, not having been made within 30 days of his arraignment pursuant to CPL § 200.95 (3); however, the issue is moot where the People, in their opposition to the instant motion, have responded to defense counsel's request. Additionally, the Court grants defendant's request to reserve his right to make further motions to the extent provided by CPL § 255.20 (3). The Court respectfully refers defendant's request for a pre-trial voluntariness hearing and an order precluding evidence of defendant's prior bad acts or criminal convictions or, in the alternative, granting a Sandoval hearing, to the trial court.

Based upon the foregoing, to the extent that defense counsel only challenged the facial sufficiency of count two, PL § 240.26 (1), defendant's motion for dismissal of the accusatory instrument is DENIED; and the Court further:

GRANTS defendant's applications seeking a Grillo hearing, and the right to make further motions to the extent provided by CPL § 255.20 (3); and

REFERS defendant's request for a Sandoval hearing to the trial court; and

DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady and Vilardi disclosures.

This constitutes the opinion, decision, and the order of the Court.