Defendant F.M. ("defendant") moved to dismiss this action based on the facial insufficiency of the accusatory instrument pursuant to CPL §§ 100.40, 170.30(1)(a), and 170.35(1)(a). Defendant also moved for a court order deeming the People's certificate of compliance ("COC") invalid because certain materials discoverable under CPL 245.20(1) were not disclosed and made available to defendant. Finally, defendant moved to dismiss on speedy trial grounds pursuant to CPL §§ 170.30(1)(a) and (e), and 30.30. Defendant's motion to dismiss is granted because the accusatory instrument is facially insufficient.

On March 22, 2025, defendant was arraigned on a misdemeanor complaint charging him with menacing in the second degree (PL 120.14[1]), a class A misdemeanor; criminal possession of a weapon in the fourth degree (PL 265.01[2]), a class A misdemeanor; menacing in the third degree (PL 120.15), a class B misdemeanor; and harassment in the second degree (PL 240.26[1]), a violation. The complaint alleges that the deponent P.O. Lee was informed by E.A. (the "CW") that the "defendant and the informant engaged in a verbal dispute the informant observed the defendant grab a kitchen knife and pointed said knife at the informant." At defendant's arraignment, the People filed a CPL 710.30(1)(a) notice wherein defendant stated to PO Lee: "I was in the kitchen and they was [sic] in the bathroom and the door was blocking me so I pushed it and he said hey hey. He then come out [sic] the room with a hammer." On March 28, 2025, the People served defendant and filed with the court the supporting deposition of the CW, dated March 26, 2025, stating: "I, E.A., have read the accusatory instrument filed in this action. The facts in that instrument stated to be on information furnished by me are true to my personal knowledge." The People filed their COC on June 20,2025, but did not serve it on defense counsel until June 22, 2025.

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." People v Dreyden, 15 NY3d 100, 103 (2010); People v Case, 42 NY2d 98, 99 [1977]; People v Fraser (Croyton), 2019 NY Slip Op 51610(U), 2019 NY Misc. LEXIS 5487, *3 (App. Term 2d Dept. 2019). To be facially sufficient, an information must contain non-hearsay factual allegations establishing every element of the offenses charged and the defendant's commission thereof. (CPL 100.40 [1] [b], [c]); People v. Alejandro, 70 NY2d 133, 136 (1987). Reasonable cause can be established "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." [CPL 70.10(2)]. "When evidence or information, which appears reliable, discloses facts or [*2]circumstances equally compatible with guilt or innocence, the reasonable cause standard is not met." People v Oldham, 54 Misc 3d 303, 306-307 (Crim. Ct. Kings Co. 2016).

A person is guilty of criminal possession of a weapon in the fourth degree when they "possess[] any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, undetectable knife or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another." [PL 265.01(2)] The offense of criminal possession of a weapon in the fourth degree has two essential elements: (1) knowing possession of a dangerous knife, instrument or weapon, and (2) intent to use it unlawfully against another. In re Francisco C., 238 AD2d 224, 226 (1st Dept. 1997). Pursuant to PL 265.15(4), "possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another." The statute does not define the term "dangerous knife." Matter of Antwaine T., 23 NY3d 512, 516 (2014). However, it is noteworthy that Penal Law § 265.15 (4) omits kitchen knives from that category of weapons for which possession alone is presumptive evidence of intent to use unlawfully against another. A knife which does not have the inherent characteristics of being dangerous "may nonetheless be determined to fall within the statutory prescription when the circumstances of its possession including the behavior of its possessor demonstrate that the possessor himself considered it a weapon and thus a 'dangerous knife' within the contemplation of the statute." In re Jamie D., 59 NY2d 589, 591 (1983). A person's mere possession of a kitchen knife is insufficient to demonstrate that they consider it a weapon. Matter of Edwin O., 91 AD3d 654, 655 (2d Dept. 2012). However, a kitchen knife can be deemed a dangerous knife it is used as "an instrument of offensive or defensive combat," and not as "an innocent utilitarian utensil." People v. Mannix, 2023 NY Slip Op 51372(U), 2023 NY Misc. LEXIS 23135, *2 (1st Dept. 2023).

The issue is whether the instant allegation that defendant, in the course of a verbal altercation with the CW, pointed a kitchen knife at him, gives rise to the presumption that the knife was used as an "instrument of offensive or defensive combat." Defendant's statement to PO Lee upon his arrest that "he [the CW] come out of the room with a hammer," which statement was appended to the accusatory instrument and served on notice to defendant at his arraignment pursuant to CPL 710.30(1)(a), can be considered by this court in determining the sufficiency of the accusatory instrument. People v. Anzalone, 85 Misc 3d 648, 1222 N.Y.S.3d 361, 364, 2024 NY Slip Op 24286 (Orchard Park Town Ct. 2024). See also, People v. Hardy, 35 NY3d 466, 475, 132 N.Y.S.3d 394, 157 N.E.3d 117 (2020) ("in evaluating the sufficiency of an accusatory instrument we do not look beyond its four corners including supporting declarations appended thereto"). Defendant's statement to PO Lee suggests that defendant acted in self defense and raises doubt as to whether there was reasonable cause to believe that he intended to use the kitchen knife as a weapon to hurt the CW, a required element of PL 265.01(2). See, People v Brown-Shook, 2026 NY Slip Op 00172, 2026 NY App. Div. LEXIS 186, *4 (3rd Dept. 2026) (defendant's testimony that she grabbed a kitchen knife as she was tussling with the victim and did not want to hurt the victim in any way, with her sole goal being "to get out of the house" without sustaining any additional injuries, "suggested that defendant lacked the intent to either cause serious physical injury as required to ... use the knife unlawfully against the victim as required to commit criminal possession of a weapon in the third degree"). Furthermore, the accusatory instrument does not allege that defendant came in close proximity to the CW as he pointed the knife, a necessary element to prove that defendant threatened the CW and intended [*3]to use the kitchen knife in an unlawful manner. See, People v Purvis, 90 AD3d 1339, 1340 (3d Dept. 2011); People v Maldonado (Victor), 2017 NY Misc. LEXIS 1332, *3-4 (App. Term 2d Dept. 2017). Accordingly, this court finds that the factual allegations do not establish reasonable cause to believe that defendant committed the offense of criminal possession a weapon in the fourth degree [PL 265.01(2)], and this charge is dismissed as facially insufficient.

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." (Penal Law § 120.14 [1]). The sole factual allegation is that defendant pointed a knife at the informant. The accusatory instrument does not contain any allegations that defendant intentionally put the CW in reasonable fear of "physical injury, serious physical injury or death," as defendant is not alleged to have approached or come in close proximity to the CW at any time during the incident. See, People v. Iftikhar, 185 Misc 2d 565, 568 (Crim. Ct. Queens 2008). Furthermore, there is no allegation that defendant held the knife in a menacing manner which placed the CW in fear of physical injury. See, People v Abellard, 189 AD3d 1605, 1606 (2d Dept. 2020) (conviction for menacing in the second degree vacated where the defendant did not hold knife to the complaining witness in a menacing manner). Accordingly, this court finds that the facts do not establish reasonable cause to believe that defendant committed the offense of menacing in the second degree [PL 120.14(1)], and this charge is dismissed as facially insufficient.

A person is guilty of menacing in the third degree when "by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury."[PL 120.15] The statute requires a "physical menace," i.e., a physical act which places the victim in fear of imminent serious injury. PL 120.15; Matter of Cousineau v Ranieri, 185 AD3d 1421, 1422-1423 (4th Dept. 2020); In re Akheem B., 308 AD2d 402, 403 (1st Dept. 2003). Since there is no allegation that defendant approached the CW or came in close proximity to him as he pointed the knife, or made verbal threats, the factual allegations are insufficient to demonstrate defendant committed a physical act which caused the CW to fear death, imminent serious injury or physical injury See, People v. Nwogu, 22 Misc 3d 201, 204 (Crim. Ct. Queens Co. 2008) ("defendant's words 'I am going to blow up,' the physical act of standing up from a seat, together with the observation of a knife handle in the back of defendant's waistband, are insufficient to demonstrate defendant's intent to place another person in fear of death, imminent serious physical injury or physical injury" where the defendant did not make any verbal threats to the victim or come in close proximity to them) . Accordingly, the accusatory instrument lacks sufficient factual allegations to establish that defendant committed the offense of menacing in the third degree [PL 120.15], and that charge is dismissed as facially insufficient.

A person is guilty of harassment in the second degree when, "with intent to harass, annoy or alarm another person," he or she "strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." [PL 240.26(1)]. The required elements for this charge are that defendant: (1) "intended to harass the CW, annoy or alarm," and (2) "made a genuine threat of physical harm that was more than a mere crude outburst." People v. Rodriguez, 19 Misc 3d 830, 837 (Crim. Ct. Kings Co. 2008), citing People v. Dietze, 75 NY2d 47, 53-54 (1989) and People v Concannon,28 NY2d 854 [1971]. This court finds that the allegation that defendant pointed a knife at the CW did not provide reasonable [*4]cause to believe that defendant possessed the requisite intent to "harass, annoy or alarm." To establish that defendant had the "requisite mental state, it is necessary that there be alleged evidentiary facts—stemming from the act itself or upon the surrounding circumstances—from which intent may be inferred." People v Eames (Melissa), 2017 NY Slip Op 50705(U), 2017 NY Misc. LEXIS 2066, *3 (App. Term 2d Dept. 2017). The accusatory instrument contains no factual allegations establishing that defendant followed the CW prior to the alleged incident or made any verbal threats. Therefore, the allegations did not establish reasonable cause that defendant possessed the requisite mental state to harass, annoy or alarm the CW. See, People v Hoffstead (Eric), 28 Misc 3d 16, 21 (App. Term 2d Dept. 2010). Further, as discussed above, the factual allegations do not establish that defendant posed a genuine and immediate threat of physical contact to the CW. Accordingly, the charge of harassment in the second degree [PL 240.26(1)] is dismissed as facially insufficient. See, People v Coveney (Mary), 50 Misc 3d 1, 8 (App. Term 2d Dept. 2017).

It is worth noting that the factual portion of the complaint contains a fused sentence, that is, two complete sentences are joined without any punctuation. Since there is no period in the sentence "the defendant and the informant engaged in a verbal dispute the informant observed the defendant grab a kitchen knife and pointed said knife at the informant," there is an ambiguity in the phrase "and pointed said knife at the informant." On the one hand, it implies that another person pointed the knife at the CW. On the other hand, since the phrase "and pointed" is not clearly tied to defendant as the person performing that action, it can be interpreted to mean that the CW pointed the knife at himself. The People made no effort to cure this defect pursuant to CPL 170.35(1)(a). The rule of lenity requires the court to resolve ambiguity in criminal laws in favor of defendants. Whitman v. United States, 574 U.S. 1003, 1005 (2014); People v Badji, 36 NY3d 393, 404 (2021). In the same vein, since there is ambiguity in the accusatory instrument, which gives rise to the question of how "reasonable cause" as set forth in CPL 100.40(4)(b) should be interpreted by this court, the ambiguity should be resolved in favor of defendant. Since the accusatory instrument is facially insufficient , the case must be dismissed. People v. Jones, 9 NY3d 259, 263 (2007). Accordingly, the case is dismissed and sealed, and the order of protection is vacated. This constitutes the decision and order of the court.