People v Merceda

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

Decided on May 11, 2026

CR-703153-25CN

Ilona B. Coleman, J.

In an omnibus motion, the defense moves for an order declaring the People's certificate of compliance (COC) and certificate of readiness (COR) invalid and to dismissing this case pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (e); dismissing the charges of PL §§ 145.00 (1), 120.00 (1), 120.00 (2), and 240.30 (4) as facially insufficient (CPL 170.30 [1] [a], 170.35 [1] [a]); suppressing identification testimony related to a prior, out-of-court identification (US v Wade, 388 US 218 [1967]); granting a "voluntariness hearing" for unnoticed statements the People intend to introduce at trial (People v Grillo, 176 AD2d 346, 347 [1st Dept 1991]); precluding unnoticed statement and identification testimony; directing the People to produce any evidence or information favorable to the defense (Brady v Maryland, 373 US 83 [1963]); and precluding the People from introducing evidence of prior bad acts at trial (People v Sandoval, 43 NY2d 371 [1974], People v Molineux, 168 NY 264 [1901]).

The People oppose.

I. Procedural History

The defendant is charged with PL §§ 120.00 (1), 120.00 (2), 240.30 (4), 145.00 (1), and related charges for allegedly striking the complainant in the back of the head with a closed fist and intentionally damaging the complainant's car on November 18, 2025. The defendant was arrested that day and issued a desk appearance ticket. On December 3, 2025, the defendant appeared in court on the desk appearance ticket. The Legal Aid Society was assigned to represent the defendant, he was arraigned on a criminal complaint, and the case was adjourned to January 15, 2026, for conversion.

On January 15, 2026, the defendant appeared in court, represented by a newly assigned attorney from The Legal Aid Society. The People filed and served a superseding information (SSI). In the SSI, the complainant alleges:

I observed the defendant strike the passenger-side rearview window^FN1 of my motor vehicle with a closed fist and thereby cause the rearview window to break. [] I am the owner of the above-described motor vehicle and the defendant did not have permission or authority to damage said motor vehicle. [] I further observed the defendant strike the back of my head with a closed fist, causing substantial pain to my head and neck.

The People were not ready for trial, and the case was adjourned to March 6, 2026, for trial.

At some point — current defense counsel says between January 15 and January 28, 2026 — the newly assigned Legal Aid Society attorney went on leave. The defendant's case was not immediately reassigned to a new attorney.

On January 28, 2026, the People produced discovery to the defense,^FN2 including body-worn camera (BWC) footage, NYPD and court paperwork, law enforcement disciplinary records, witness contact information, notes from witness interviews, returns from several subpoenas, and medical records from Bellevue Hospital and the FDNY. The People then filed and served a COC and COR. The COC indicated that the People had not produced a 911 call or radio run.

On March 5, 2026, current defense counsel, also with The Legal Aid Society, was assigned to the defendant's case but had not received a physical file or any transfer notes about this case from the prior Legal Aid attorney.

On March 6, 2026, current defense counsel appeared in court with the defendant and filed a notice of appearance. Defense counsel requested a motion schedule for a COC challenge and an omnibus motion. The court set a motion schedule and adjourned to May 11, 2026, for decision.

Between March 10 and March 13, 2026, the parties conferred via email regarding potentially outstanding discovery. On March 25, 2026, the defense filed their COC challenge and omnibus motion. On April 19, 2026, the People filed their opposition. On April 23, 2026, the defense filed a reply, and May 3, 2026, the People filed a sur-reply with the court's permission.

II. COC Challenge and CPL § 30.30 Motion to Dismiss

The defense argues that the People's COC was invalid because of their failure to produce 911 and radio run recordings, files from the District Attorney's Survivor Services Bureau (SSB), and one FDNY EMS document. The People oppose, arguing first that the COC challenge is untimely and procedurally barred due to insufficient conferral, and second, that they exercised due diligence in obtaining and producing all discoverable materials in their custody or control to the defense.

On a motion challenging a COC, this court will typically first determine whether the movant has complied with the procedural requirements of CPL § 245.50 (4) (see People v [*2]Minor, 2026 NY Slip Op. 50255[U] [Crim Ct, NY County 2026]). This court does not perceive any deficiency in defense counsel's conferral affirmation or in the conferral itself (see People v Calvin Y., 86 Misc 3d 1270[A] [Crim Ct 2025] [conferral is sufficient if it "elicit[s] the parties' respective positions in the dispute and [] establish[es] that a resolution could not be reached"]). However, the timeliness of the COC challenge presents a difficult issue. The defense argues that the motion is timely despite the conceded failure to file within the 35-day deadline due to a "material change in circumstances" (CPL 245.50 [4] [c] [ii]). Specifically, defense counsel argues that her assignment to the case after the deadline passed constitutes such a change. Though The Legal Aid Society represented the defendant throughout the 35-day window for a COC challenge, no specific Legal Aid attorney was assigned — and thus no attorney did any work on the case — for the entire period. The court assumes that, if a defendant is actually unrepresented throughout the 35-day window, the assignment of counsel thereafter will constitute a material change in circumstances under CPL § 245.50 (4) (c) (ii). But the issue is much harder when, as here, the defendant was nominally represented during the 35-day window but was, for all practical purposes, abandoned during this critical statutory period. It could be argued, for example, that every attorney who fails to timely raise a meritorious COC challenge was effectively absent during the 35-day window (and perhaps constitutionally ineffective as a result), and that the defendant should be entitled to file a COC challenge upon the assignment of new counsel. That interpretation would advance fairness to the accused and reduce post-conviction litigation, but it would also render the legislature's clear deadline a nullity.

Ultimately, though, the court need not resolve this troubling issue, because the COC challenge is easily resolved on the merits. The People have established that they "exercised due diligence and acted in good faith in making reasonable inquiries and efforts to obtain and provide" discoverable materials prior to filing their January 28 COC, and the COC is therefore valid (CPL 245.50 [6]).

First, the 911 call and radio run are discoverable (CPL 245.20 [1] [e], [g]), but on the facts of this case, the failure to disclose them prior to filing a COC factors negligibly into the court's analysis of the People's diligence (see People v Martinez, 2026 NY Slip Op 50646[U] [Crim Ct, NY County 2026]). The People requested the materials promptly, and their nondisclosure was primarily due to an NYPD Tapes and Records department backlog. While the People should do more to ensure a "flow of information" between the NYPD and their office (CPL 245.55), they notified the defense in their COC that the materials had not been produced, and they produced them to the defense immediately upon receipt. Finally, the defense has not identified any prejudice from the delay.

The SSB files are also discoverable (see CPL 245.20 [1] [l]). They are not duplicative of other discovery, and they contain information with some — albeit limited — relevance to the defense. Specifically, they indicate that the People gave the complainant a referral to counseling services and a $25 witness fee. The failure to disclose these documents was an inadvertent error, not seemingly indicative of any broader deficiency in the People's efforts. The error was rectified immediately after the defense notified the People, and the delay did not prejudice the defense or impede their ability to investigate or prepare for trial.

The defense concedes that the only allegedly outstanding FDNY EMS record appears not to exist in this case. Even if it does exist, it is not in the People's actual or constructive possession, and its nondisclosure therefore does not affect the COC's validity (see People v Haggan, — NYS3d —, 2026 NY Slip Op 02462, at *1 [1st Dept 2026] [holding that materials [*3]"in the possession and control of third parties not under the prosecution's direction or control" are not "part of [the People's] initial discovery obligation"]).

Considering "the totality of the [People's] efforts to comply with the provisions of [Article 245]," the court finds that the People "exercised due diligence and acted in good faith" in discharging their duties (CPL 245.50 [5], [6]; see also People v Bay, 41 NY3d 200, 211 [2023]). Despite the two discovery violations discussed above, the People have demonstrated that their efforts were diligent (CPL 245.50 [5] [a]; Bay, 41 NY3d at 211). The People made significant efforts to obtain and produce discovery. They requested documents promptly, issued several subpoenas to obtain materials not in their possession, and made appropriate efforts to locate missing documents. The People also responded promptly and thoroughly to defense counsel's inquiries about discovery. Overall, weighing the minor discovery violations in this case against the People's overall efforts, and considering all of the factors listed in CPL § 245.50 (5) (a), the court finds that the People exercised due diligence and acted in good faith in making reasonable inquiries and efforts to obtain and provide the discovery required under CPL § 245.20 (1).

The People's January 28, 2026 COC is therefore valid (see CPL 245.50 [6]), and the motion challenging the COC is DENIED.

III. Motion to Dismiss PL § 145.00 (1)

The defense moves to dismiss the PL § 145.00 (1) charge as jurisdictionally defective as it is based on an allegation that the defendant damaged the "passenger-side rearview window" of the complainant's car. The parties agree that "there is no such thing as a 'passenger side rearview window'" (People's affirmation, p. 5), but they disagree about the legal implications of the drafting error. The defense argues that the SSI alleges a factual impossibility and is therefore facially insufficient (see People v Hardy, 35 NY3d 466 [2020]), and that the SSI fails to provide the defendant with constitutionally sufficient notice of the charges (see People v Morris, 61 NY2d 290, 295 [1984]). In opposition, the People argue that the SSI provides sufficient notice because, fairly read, it clearly refers to the passenger-side mirror (People's affirmation at 5), and because the defense received actual notice of the alleged damage through discovery.

The court finds that the SSI is facially sufficient, despite the drafting error. An information is facially sufficient when it provides "reasonable cause to believe that the defendant committed the offense[s] charged" and contains "[n]on-hearsay allegations" that "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [b], [c]). Reviewing the facial sufficiency of an information, the court must assume the allegations to be true (see id.), and it must give the factual allegations "a fair and not overly restrictive or technical reading" (see People v Casey, 95 NY2d 354, 360, [2000]). The court also "do[es] not look beyond [the] four corners" of the accusatory instrument (Hardy, 35 NY3d at 475).

Despite the drafting error, the factual allegations provide reasonable cause to believe that the defendant committed criminal mischief and establish every element of the crime through non-hearsay allegations (CPL 100.40 [b], [c]). The SSI contains a sworn statement from the complainant alleging that he personally observed the defendant strike his motor vehicle with a closed fist, causing damage to the vehicle. Unlike in Hardy, in which the drafting error rendered the charge factually and legally impossible (see 35 NY3d at 476 [the order of protection was not in effect on the erroneously alleged future date of the criminal contempt]), it is conceivable that [*4]part of a vehicle could be described as a "passenger-side rearview window," even if that is not a standard term. Giving the SSI a fair reading and assuming its contents to be true, the allegation that the defendant punched and broke a part of a motor vehicle — even if it is not clear which part — provides reasonable cause to believe that he committed the crime. Nor does the drafting error implicate any substantive element of the crime. The complainant's statements that the "motor vehicle" was damaged, that he was the owner of "the above-mentioned motor vehicle," and that the defendant had no permission or authority to damage "said motor vehicle" (emphasis added), sufficiently allege that the defendant damaged "the property of another" (PL 145.00 [1]). The specific part of the vehicle alleged to have been damaged is not a substantive element of the offense (see id.); accordingly, the SSI's ambiguity on that point is not a fatal defect (see Morris, 61 NY2d at 295 ["[t]he lack of a precise date [in an indictment] is not a fatal defect if it is not a substantive element of the crime"]).

Further, the defendant has received constitutionally sufficient notice of the charges. This standard is met "if in addition to stating the elements of the offense," the accusatory instrument "contains such description of the offense charged as will enable defendant to make his defense and to plead the judgment in bar of any further prosecution for the same crime" (Morris, 61 NY2d 290, 295 [1984] [internal citations and alterations omitted]). The allegations in the SSI meet that standard. The SSI contains the precise date, time, and location of the charged crimes, and it alleges facts that establish every element of criminal mischief in the fourth degree: that, having no right to do so, the defendant intentionally damaged another person's property (PL 145.00 [1]). These allegations are sufficient to enable the defendant to prepare a defense and to prevent the defendant from being charged twice for the same conduct (see, e.g., People v Perry, 78 Misc 3d 132[A] [App Term, 1st Dept 2023] [notice sufficient despite discrepancy in location of crime alleged in information]).

The drafting error also caused no prejudice to the defense, as they have known since at least the receipt of discovery that the damaged part was the vehicle's rearview mirror, not a window (see People v Baez, 80 Misc 3d 1206[A] [Crim Ct, Bronx County 2023] [nonprejudicial error in date that did not affect facial sufficiency of an information was not a jurisdictional defect]; compare People v Curtis W., 252 N.Y.S.3d 422 [Crim Ct, NY County 2026] [inaccuracies in information, revealed on the eve of trial, prejudiced the defense and thus constituted jurisdictional defects] and People v Ramcharran, 61 Misc 3d 234 [Crim Ct, Queens County 2018] [same]). To the extent the defense argues that the trial evidence will impermissibly vary from the allegations in the SSI (see defense affirmation, p. 15), that argument is premature at this stage, as the People may still file a further superseding information (see CPL 100.50 [1]).

Because the drafting error here does not render the SSI facially insufficient or violate constitutional notice requirements, and because it has not resulted in any prejudice, the SSI is not jurisdictionally defective (see Perry, 78 Misc 3d 132[A]; Baez, 80 Misc 3d 1206[A]; People v Minott, 70 Misc 3d 1217[A] [Crim Ct, NY County 2021]). The motion to dismiss is therefore DENIED.

IV. Motion to Dismiss PL §§ 120.00 (1), 120.00 (2), and 240.30 (4)

The defense argues that the information does not sufficiently allege that the complainant suffered "physical injury," a common element of PL §§ 120.00 (1), 120.00 (2), and 240.30 (4). [*5]"Physical injury" is defined in Penal Law § 10.00 (9) as "impairment of physical condition or substantial pain." Though impossible to define precisely, "substantial pain" is pain that is "more than slight or trivial," but it need not be "severe or intense" (People v Chiddick, 8 NY3d 445, 447 [2007]). Here, the information alleges that the defendant struck the complainant in the back of the head with a closed fist, causing substantial pain to his head and neck. The fact that the defendant punched the complainant in the back of the head is sufficient to support the assertion that he experienced substantial pain (see People v Lang, 81 AD3d 538 [1st Dept 2011]). The defense's reliance on People v Singleton, 58 Misc 3d 157(A) (App Term, 1st Dept 2018), is misplaced. In Singleton, the accusatory instrument alleged a slap, not a punch, to the back of the head (id.). An allegation of a closed fist strike is a "fact[] of an evidentiary nature" that supports the otherwise conclusory allegation of substantial pain (People v Dumas, 68 NY2d 729, 731 [1986]), whereas an allegation of an open-handed slap does not provide such evidentiary support (Singleton, 58 Misc 3d 157[A]).

V. CPL § 30.30 Motion to Dismiss

In this case, in which the defendant is charged with an A misdemeanor and no felonies, the People must be ready for trial within ninety days of the commencement of the criminal action (CPL 30.30 [1] [b]). From the defendant's arraignment on December 3, 2025, to the filing of the People's COC and COR on January 28, 2026, 56 days are chargeable to the People.

No additional time is chargeable. The People had filed a facially sufficient information and a valid COC, and the People's January 28, 2026 COR was therefore valid. The defense has not identified any other impediment to the People's readiness (see People v Johnson-McLean, 71 Misc 3d 31 [App Term, 1st Dept 2021] [non-jurisdictional defect does not vitiate statement of readiness]), nor have they established that the People are responsible for any post-readiness delay (People v Brown, 28 NY3d 392, 404 [2016]).

The defendant's motion to dismiss is therefore DENIED.

VI. Motions to Suppress and Preclude Evidence

First, the motion to suppress testimony related to a prior out-of-court identification is GRANTED to the extent that a Wade hearing is ordered. Despite the People's factual allegations, the defense has alleged that the identification procedure was unduly suggestive and is therefore entitled to a hearing (see CPL 710.60 [3] [b]).

Second, the motion for preclusion and a voluntariness hearing regarding unnoticed statements is DENIED as the defense has not challenged any such statements (see CPL 710.60 [3] [b]; CPL 710.20). The People are directed to notify the defendant as soon as practicable upon deciding to use any unnoticed statement for impeachment or rebuttal purposes, and the defense is granted leave to renew their motion upon receiving such notification (see CPL 710.40 [2], [4]).

Next, the motion for a supplemental discovery order is GRANTED to the extent that the People are reminded of their obligations pursuant to Brady v Maryland, 373 US 83 (1963), CPL § 245.20 (1) (k), and CPL § 245.60. The People filed a valid COC in this case, and the defense has not shown that further court intervention is necessary to ensure compliance (see CPL 245.35).

Finally, the motion to preclude evidence of prior bad acts is referred to the trial court. The People are directed to provide supplemental discovery to the defense as soon as practicable and at least fifteen days prior to the first scheduled trial date (CPL 245.20 [3]; CPL 245.10 [1] [b]).

This constitutes the decision and order of this court.

Dated: May 11, 2026

New York, NY

Ilona B. Coleman, J.C.C.