Criminal Court of the City of New York, New York County

Decided on May 1, 2026

CR-02840-25NY

Elizabeth Y. Shamahs, J.

[*1]

On September 5, 2025, at approximately 5:12 PM, at corner of Amsterdam Avenue and West 75th Street, New York, New York, defendant, Ross Rawl, was inside of a New York City bus when complainant, K.S., boarded the bus with her service dog in her arms. She sat down next to defendant and defendant engaged her in a verbal dispute about having a dog on the bus and that he had allergies. Defendant then shoved and pushed the complainant about the back of her neck, shoulders, and head, causing her substantial pain.

For these acts, defendant was subsequently arrested and charged and with two counts of Assault in the Third Degree (Penal Law [PL] 120.00[1],[2]), one count of Attempted Assault in the Third Degree (PL 110/120.00[1]), and one count of Harassment in the Second Degree (PL 240.26[1]).

Now, in papers dated February 25, 2026, defendant, through counsel, moves this Court for an Order dismissing the accusatory instrument in the interests of justice or for a Clayton hearing, for discovery, for preclusion, and for any other relief the Court deem just and proper. The People oppose in papers dated March 17, 2026.

Upon review of the parties' submissions and annexed exhibits therein along with the court file, the Court's Decision and Order is as follows.

DISMISSAL IN THE INTERESTS OF JUSTICE

Defendant now moves to dismiss the accusatory instrument under Criminal Procedure Law (CPL) §§ 170.30(1)(g), 170.40, and People v Clayton, 41 AD2d 204 (2d Dept 1973), in the interest of justice. A court may exercise its discretion to dismiss charges against a defendant in the interest of justice when, upon careful examination of statutory factors and a sensitive balancing of interests between the individual and the state, the court finds the existence of some compelling factor, consideration or circumstance, clearly demonstrating that conviction or [*2]prosecution of the defendant would result in an injustice. CPL § 210.40(1); People v Clayton, 41 AD2d 204 (2d Dept 1973). Dismissal in the interest of justice is an extraordinary measure that should be exercised sparingly and only in rare and unusual cases where it cries out for fundamental justice beyond the confines of conventional considerations. People v Harmon, 181 AD2d 34 (1st Dept 1992). A Clayton motion should be granted only where a defendant has demonstrated by a preponderance of the credible evidence that a compelling reason exists to warrant dismissal in the interest of justice; if the defendant fails to meet this burden, the court may summarily deny the motion. People v Schlessel, 104 AD2d 501, 502 (2d Dept 1984). People v LaFont, 43 Misc 3d 384, 388 (Crim Ct 2014).

The factors to be considered in determining such motions are set forth in CPL 210.40(1): (a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptional serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal upon the confidence of the public in the criminal justice system; (h) the impact of a dismissal on the safety or welfare of the community; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

A. Seriousness and Circumstances of the Offense

Defendant argues that this case is not serious and that this factor weighs in his favor. The highest offense charged is a misdemeanor and there has been no allegation of weapon use or prolonged attack. Defendant further notes that he is mobility impaired, allergic to dogs, and that the environment was highly triggering in light of his allergies. These claims fail. The charges and underlying circumstances against defendant are serious. The People assert, and this Court accepts, that defendant berated the complainant, a 70-year-old woman who had her service dog on her lap, pushing her and shoving her until she began to shake and cry, until other bus passengers intervened. The Court also accepts that there are multiple 911 calls and videos that demonstrate these facts. Accordingly, this factor weighs against defendant.

B. Extent of Harm

Defendant's contention that there is no contention of physical injury, as the accusatory instrument only notes that the complainant experienced "substantial pain," without any allegation of bruising, swelling, or medical treatment is without merit ^FN1. Physical injury is defined as "impairment of physical condition" or "substantial pain." PL § 10.00(9). Although "substantial pain" cannot be defined precisely, the Court of Appeals has made clear that the degree of pain necessary to demonstrate physical injury need not be "severe or intense to be substantial" though it has to be more than "slight or trivial." People v Chiddick, 8 NY3d 445, [*3]447 (2007) (substantial pain established where the victim's broken fingernail hurt "more than a little" but "less than a lot"). Significantly, "there is a 'reasonable inference' that if a person reports having experienced substantial pain, [that person] did, in fact, experience substantial pain." People v Morris, 44 Misc 3d 810, 818 (Crim Ct NY Co 2014). Thus, that the complainant herself mentions that she experienced "substantial pain" lends the inference that she did, in fact, experience substantial pain. Furthermore, the People note that the complainant was treated by Emergency Medical Services (EMS) and had a headache for several days. Accordingly, the complainant's physical injury can be established and this factor weighs against defendant.

C. Evidence of Guilt

There seems to be overwhelming evidence of defendant's guilt. Contrary to defendant's contention, there exists more than grainy surveillance video, as the People note the presence of multiple 911 calls along with cellphone video, in addition to testifying witnesses. Thus, this factor weighs against defendant.

D. History, Character, and Condition of the Defendant

Defendant points to his age and health, noting that he is sixty-eight (68) years old, mobility impaired, medically vulnerable, and allergic to dogs. He argues that he is not a public safety risk considering these facts. He further argues that he does not have a criminal history and that he does not have any prior complaints against him. Here, while these facts might be true, contrary to defendant's argument, defendant was still a public safety risk in the instant case. In any event, defendant's circumstances do not rise to the level of warranting dismissal. Accordingly, this factor does not weigh in favor of defendant.

E. Exceptionally Serious Law Enforcement Misconduct

Defendant concedes that no such law enforcement misconduct occurred.

F. Purpose and Effect of Authorized Sentence

Defendant stands accused of an A misdemeanor, the top count of the accusatory instrument, with a maximum sentence of imprisonment of 364 days in jail. Defendant argues that while the People have offered him a plea of Disorderly Conduct (PL 240.20), a violation and not a crime, he believes that he did nothing wrong and thus does not want to admit to anything. He argues that the collateral consequences of conviction, stigma, and pleading to something he believes he did not do would be grossly disproportionate. These arguments are not persuasive. Defendant is accused of committing acts of violence against an identifiable person, namely shoving and pushing the complainant causing her physical injury, who would presumably testify at trial. Additional facts surrounding the incident that would be elicited at trial are that defendant had to be removed by intervening passengers and the 911 calls and videos would be played at trial. There seemingly exists a legally sufficient case against defendant to support a guilty verdict. The purpose and effect of the authorized sentence is therefore appropriate.

G. Impact of Public Confidence

Defendant contends that dismissal in his case would reflect measured proportionality. He [*4]further argues that the public would be pleased because he has suffered enough in his life. The Court disagrees. In this Court's view, the public trust and confidence would be undermined by granting dismissal to a defendant who committed acts of violence against a complete stranger on public transportation until members of the public intervened to stop him. Thousands of New Yorkers use public transportation on a daily basis expecting to make it safely to their intended destination and, here, that was not the case for this complainant and the other New Yorkers who happened to be on the same bus as defendant. Accordingly, this factor weighs against defendant.

H. Impact on Community Safety or Welfare of the Community

Similarly, this factor weighs against defendant for the same reasons noted above.

I. The Attitude of the Complainant or Victim

The People note, and this Court accepts, that the complainant has expressed that defendant's conduct impacts her to this day. She reportedly experiences anxiety taking public transportation for fear that a similar incident might occur. She has also expressed concern that the criminal justice system will not hold the defendant accountable for the alleged crimes he committed against her. This factor weighs against defendant.

J. Other Relevant Factors

Defendant's argument that this Court should take into account that the complainant was not in compliance with Metropolitan Transit Authority (MTA) pet carrier rules on the ground that the dog was not in carrier is without merit. The People aver that the dog was harnessed and leashed, in full compliance with MTA carrier rules (PCAs and service animals, reasonable accommodations, https://www.mta.info/accessibility/pcasand-service-animals-reasonable-accommodations [last visited April 28, 2026]). Defendant's remaining contentions here are also without merit. This factor, accordingly, weighs against defendant.

Thus, after balancing the factors noted above, along with balancing the interests between the individual and the state, this Court finds that there is no compelling factor, consideration or circumstance, that clearly demonstrates that conviction or prosecution of the defendant would result in an injustice. CPL § 210.40(1); People v Clayton, 41 AD2d 204 (2d Dept 1973). Defendant has not demonstrated under a preponderance of the credible evidence — as he must — that a compelling reason exists to warrant dismissal in the interest of justice. Id. Accordingly, defendant's motion is summarily denied for the reasons stated above. See People v Schlessel, 104 AD2d 501, 502 (2d Dept 1984). People v LaFont, 43 Misc 3d 384, 388 (Crim Ct NY Co 2014).

DISCOVERY

The People are ordered to respond to defendant's demand to produce discoverable material in accordance with CPL §245, to the extent they have not already done so. CPL §245.20. The People are reminded of their continuing obligations pursuant to Brady v Maryland, 373 US 83 (1963) and People v Rosario, 9 NY2d 286 (1961), and are ordered to provide such material as requested in the moving papers, to the extent they have not already done so. See People v Consolazio, 30 NY2d 446 (1976). As to the defendant's specific Brady/Vilardi production requests, the People are reminded of their continuing duty to provide evidence or information that is favorable to the defendant.

PRIOR BAD ACTS OR PRIOR CONVICTIONS

Defendant seeks the preclusion of using defendant's prior bad acts and/or prior convictions at trial pursuant to People v Molineux, 168 NY 264 (1901), People v Ventimiglia, 52 NY2d 350 (1981), and People v Sandoval, 34 NY2d 371 (1974) on the People's direct case or upon cross-examination.

Evidence of uncharged crimes is inadmissible where it is offered solely to raise an inference that a defendant has a criminal propensity. People v. Molineux, 168 NY 264 (1901); People v Wright, 288 AD2d 409 (2d Dept 2001). Such evidence may be admitted, however, if it helps to establish a defendant's motive, intent, identity, knowledge, common scheme or plan, lack of mistake or accident, to complete the narrative of the crime, or provide the jury with background information. See People v Molineux, 168 NY 264 (1901); People v Ventimiglia, 52 NY2d 350 (1981); People v Lewis, 69 NY2d 321 (1987); People v Allweiss, 48 NY2d 40 (1979); People v. Davis, 169 AD2d 774 (2d Dept 1991). In order to use this evidence, the People are required to notify the court and defendant, prior to jury selection, of their intent to introduce the evidence as part of the case-in-chief and identify the basis upon which they consider it admissible. People v Ventimiglia, 52 NY2d 350 (1981). Once a showing is made that the evidence is relevant, a trial court may admit the evidence as long as its probative value outweighs its potential prejudice. People v Hudy, 73 NY2d 40, 54-55 (1988); People v Alvino, 71 NY2d 233, 241-42 (1987). The permissible scope of such evidence rests largely, if not completely, with the trial court. See People v Hudy, 73 NY2d 40, 54-55 (1988). Accordingly, defendant's motion as to prior bad act evidence is deferred to the trial court.

Should he testify, defendant, like any other witness, places his credibility in issue. Although a witness may not be questioned about an arrest per se, it is a provident exercise of the Court's discretion to permit cross-examination concerning any immoral, vicious, dishonest and or criminal act, even if defendant was not formally charged with it. People v Sandoval, 34 NY2d 371, 373 (1974); People v Rockwell, 18 AD3d 969 (3d Dept 2005); People v Di Bella, 277 AD2d 699 (3d Dept 2000); People v Connolly, 259 AD2d 1039 (4d Dept 1999); People v Maiolo, 122 AD2d 586 (4d Dept 1986); Prince, Richardson on Evidence, 11th Ed., 6-406. A witness may also be impeached by instances of conduct demonstrating a "willingness ... to place his self-interest ahead of principle or the interests of society." People v. Walker, 83 NY2d 455, 461—462 (1994).

The People's disclosure obligation is governed by People v Sandoval, 34 NY2d 371 (1974), which directs the People to notify the defendant, prior to the commencement of jury selection, of the acts which they will seek to use for impeachment purposes. However, it is defendant who must demonstrate that the prejudicial effect of such evidence so far outweighs its probative worth that it must be excluded, as it is the defendant who bears the burden of persuasion. See People v Sandoval, 34 NY2d 371, 378 (1974). The permissible scope of such impeachment evidence rests largely, if not completely, with the trial court. People v Gray, 84 NY2d 709, 712 (1995); People v Walker, 83 NY2d 455, 459 (1994). Accordingly, defendant's motion as to prior convictions is therefore deferred to the trial court. People v Sandoval, 34 NY2d 371 (1974).

OTHER MOTIONS

Defendant's remaining requests are denied as duplicative, premature, moot, unsupported by the record, or without merit.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Dated: May 1, 2026

New York, New York

ELIZABETH Y. SHAMAHS, J.C.C.