People v Phillpotts

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

Decided on May 15, 2026

Docket No. CR-033794-25NY

Kacie A. Lally, J.

Defendant Erick Phillpotts, charged with Assault in the Third Degree (PL § 120.00 [1]) ("Count One"), Assault in the Third Degree (PL § 120.00 [2]) ("Count Two"), Criminal Obstruction of Breathing or Blood Circulation (PL § 121.11 [a]) ("Count Three"), Aggravated Harassment in the Second Degree (PL § 240.30 [4]) ("Count Four"), Attempted Assault in the Third Degree (PL §§ 110/120.00 [1]) ("Count Five"), Attempted Criminal Obstruction of Breathing or Blood Circulation (PL §§ 110/121.11 [a]) ("Count Six"), and Harassment in the Second Degree (PL § 240.26 [1]) ("Count Seven"), moves to dismiss the superseding information ("SSI"), on the ground that it is facially insufficient. The Defendant also moves to dismiss this matter pursuant to Criminal Procedure Law ("CPL") § 30.30, and for discovery-related relief. The People oppose the Defendant's motions. For the reasons set forth below, the Defendant's motions to dismiss are denied. The remaining motions are granted in part and reserved in part.

I. Factual Allegations

The SSI alleges that on October 20, 2025, at approximately 5:30 PM, inside 270 First Avenue, New York, New York, the Defendant applied pressure to the neck of the complainant, [*2]his former intimate partner. Specifically, the Defendant "forcefully squeez[ed]" the complainant's neck with his left hand. The Defendant also attempted to "place his right hand in [the complainant's] mouth." The Defendant's conduct caused "substantial pain" to the complainant's neck.

II. Legal Standards

An information must contain factual allegations providing reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information, and non-hearsay factual allegations establishing, if true, that the defendant committed every element of the offense charged. (CPL 100.40 [1] [b]-[c]) This latter requirement — the "prima facie case requirement" — "'is not the same as the burden of proof beyond a reasonable doubt required at trial,' nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v Smalls, 26 NY3d 1064, 1066 [2015], quoting People v Kalin, 12 NY3d 225, 230 [2009]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

III. Facial Sufficiency

(a) Physical Injury

The Defendant argues that Counts One, Two, and Five, charging him with two counts of Assault in the Third Degree and one count of Attempted Assault in the Third Degree, and Count Four, charging him with one count of Aggravated Harassment in the Second Degree, are facially insufficient, because the SSI fails to allege that the complainant sustained a "physical injury." The Court disagrees.

A person commits Assault in the Third Degree when he intentionally or recklessly causes physical injury to another person. (PL §§ 120.00[1], 120.00[2]) An individual is guilty of Aggravated Harassment in the Second Degree when, "with the intent to harass, annoy, threaten or alarm," he "strikes, shoves, kicks or otherwise subjects another person to physical contact thereby causing physical injury" to that person. (PL § 240.30[4])

Physical injury, for purposes of both offenses, is defined as "impairment of physical condition or substantial pain" (PL § 10.00 [9]). "Substantial pain . . . simply means more than slight or trivial pain" (People v Coppedge, 70 Misc 3d 139[A], 2021 NY Slip Op 50103[U] [App Term, 1st Dept 2021]). "Substantiality" of pain may be inferred from factual allegations, including the injury inflicted, the complaining witness' "subjective description" of the pain, and the nature of the defendant's alleged act (see People v Chiddick, 8 NY3d 445, 447-48 [2007]). In determining whether an information alleges substantial pain, courts may also consider the surrounding circumstances (see People v Henderson, 92 NY2d 677, 680 [1999]; People v Lang, 81 AD3d 538 [1st Dept 2011]).

An allegation of pressure to the throat, on its own, may be insufficient to establish "physical injury," as defined by Penal Law § 10.00 (9) (People v Hinchey, 236 AD3d 1101, 1104 [3d Dept 2025]). On the other hand, pressure to the throat, along with allegations of "demonstrable pain, physical trauma or injury" may constitute physical injury (id.; In re Annette R., 203 AD3d 673 [1st Dept 2022]). And while allegations of medical treatment may be relevant to a determination of physical injury, such treatment is not required (see People v Guidice, 83 [*3]NY2d 630, 636 [1994]; People v Pope, 174 AD2d 319, 321 [1st Dept 1991]; People v Spinac, 185 AD3d 498, 499 [1st Dept 2020]; People v McKelvey, 180 AD3d 494 [1st Dept 2020]).

Here, the nature of the alleged act, the description of the pain sustained, and the surrounding circumstances, taken together, sufficiently allege substantial pain. The SSI does not merely allege that the Defendant placed pressure on the complainant's throat. Rather, the Defendant allegedly "forcefully squeeze[d]" the complainant's neck with his left hand; the Defendant also attempted to place his right hand into the complainant's mouth. The SSI further alleges "demonstrable pain" (see Hinchey, 236 AD3d at 1104), as the complainant affirms that she sustained "substantial pain" to her neck (see People v Morris, 44 Misc 3d 810, 818-819 [Crim Ct, NY County 2014]); compare People v Lewis, 294 AD2d 847, 847 [4th Dept 2002] [evidence of physical injury insufficient to sustain assault conviction, where "although the victim testified that defendant choked her, leaving red marks on her neck, the People failed to present evidence establishing either physical impairment or substantial pain"] [emphasis added]).

Accordingly, at the pleading stage, the allegations provide reasonable cause to believe that the Defendant's actions caused physical injury to the complainant (see Henderson, 92 NY2d 677; People v Mercado, 94 AD3d 502 [1st Dept 2012]; Coppedge, 70 Misc 3d 139[A]). Likewise, applying this analysis, the attempted assault and aggravated harassment charges are facially sufficient.

(b) Intent

i. Criminal Obstruction of Breathing or Blood Circulation

The Defendant argues that Count Three and Count Six, charging him with criminal obstruction of breathing or blood circulation and an attempt to commit that offense, are facially insufficient because the SSI does not adequately allege the requisite intent. This argument is rejected.

Pursuant to Penal Law § 121.11 (a), "a person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she applies pressure on the throat or neck of such person." A defendant need not intend "to cause physical injury" (People v Peterson, 118 AD3d 1151, 1155 [3d Dept 2014]). Rather, the defendant need only intend to "impede another's normal breathing" (id.), and "no minimum period of contact is required" (People v Reyes, 43 Misc 3d 1225[A], 2014 NY Slip Op 50789[U] [Crim Ct, NY County 2014]).

Pain or injury are not elements of Penal Law § 121.11 (a); however, allegations of such harm "may support the inference of the requisite intent" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Penal Law §121.11). Indeed, in "assessing the sufficiency of an accusatory instrument" alleging criminal obstruction of breathing, a defendant's intent "may be inferred from the act itself, as well as the surrounding circumstances" (People v Rubackin, 53 Misc 3d 154[A], 2016 NY Slip Op 51737[U] [App Term, 2d Dept 2016]; see Matter of Kendrick C, 143 AD3d 600 [1st Dept 2016]; People v Carte, 113 AD3d 191 [3d Dept 2013]; People v Montanez, 83 Misc 3d 138[A], 2024 NY Slip Op 51325[U] [App Term, 1st Dept 2024]; People v Espinoza, 67 Misc 3d 145[A], 2020 NY Slip Op 50805[U] [App Term, 1st Dept 2020]).

Here, the Defendant allegedly "forcefully squeez[ed]" the neck of his former intimate partner with his hand. The pressure to the complainant's throat was enough to cause the [*4]complainant "substantial pain." The Defendant also allegedly attempted to insert his other hand into the complainant's mouth. The Defendant's alleged conduct, coupled with the allegation that it caused "injury or pain" to the complainant's neck (see Donnino, Practice Commentary, Penal Law §121.11), sufficiently establishes the Defendant's intent to impede the complainant's breathing (see People v Sesay, 61 Misc 3d 128[A], 2018 NY Slip Op 51366[U] [App Term, 1st Dept 2018]; People v Reyes, 43 Misc 3d 1225[A]). Accordingly, Count Four and Count Six are facially sufficient.

ii. Harassment in the Second Degree

The Defendant argues that Count Seven, charging him with harassment in the second degree, is facially insufficient because the SSI does not allege the requisite intent. "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 so" (PL §240.26 [1]).

The allegations that the Defendant forcefully squeezed the complainant's neck with one hand, and attempted to place his other hand inside the complainant's mouth, readily permit the inference of intent to harass, annoy or alarm the complainant (see People v John-Connor, 57 Misc 3d 142[A], 2017 NY Slip Op 51396[U] [App Term, 1st Dept 2017]; People v Cruz, 53 Misc 3d 95, 97 [App Term, 1st Dept 2016]; People v Carter, 76 Misc 3d 1206[A] *5, 2022 NY Slip Op 50837[U] [Crim Ct, Kings County 2022]; People v Diaz, 22 Misc 3d 624, 629-630 [Crim Ct, NY County 2008]). Count Seven is thus facially sufficient.

Accordingly, the Defendant's motion to dismiss the accusatory instrument is denied.

IV. 30.30 Motion

The 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, absent excludable time (CPL 30.30 [1] [b]).^FN1 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 (see People v Santos, 68 NY2d 859, 861 [1986]; People v Berkowitz, 50 NY2d 333, 349 [1980]). In his motion to dismiss, the Defendant argues that 125 days are chargeable to the People. The People, on the other hand, contend that only 89 days should be charged. This Court finds that 90 days are chargeable to the People, as follows:

A. October 30, 2025 to December 16, 2025: 47 days

Following the filing of the accusatory instrument and the Defendant's arraignment on October 30, 2025, the case was adjourned to December 16, 2025, for the People to obtain a supporting deposition. This 47-day period is chargeable to the People.

B. December 16, 2025 to February 2, 2026: 43 days

On December 16, 2025, the People filed and served an SSI, and the Defendant was arraigned upon the SSI. The case was adjourned to February 2, 2026, for trial. As set forth in Section III, supra, all counts in the SSI are facially sufficient. On January 28, 2026, the People [*5]filed and served off-calendar a Certificate of Compliance and a Certificate of Readiness, thus tolling the speedy trial clock. The 43-day period from December 16, 2025 to January 28, 2026 is chargeable to the People. The remainder of this period is not chargeable to the People.

C. February 2, 2026 to March 6, 2026: 0 days

On February 2, 2026, the People stated that they were ready for trial. The case was adjourned, at the defense request, to March 6, 2026, for trial. This period is not chargeable to the People (CPL 30.30 [4] [b]).

D. March 6, 2026 to May 19, 2026: 0 days

On March 6, 2026, the People were stated that they were ready for trial. The Defendant requested a motion schedule to file the instant motions. The Court set a motion schedule, and the case was adjourned to May 19, 2026, for decision. This period is not chargeable to the People (CPL 30.30 [4] [a]).

Accordingly, 90 days are chargeable to the People; the motion to dismiss is denied.

V. Remaining Motions

The Defendant's motion for a Huntley/Dunaway hearing is granted.

The Defendant's motion for a Payton//Dunaway hearing is granted.

The Defendant's motion for a Sandoval is reserved for decision by the trial court

This opinion constitutes the decision and order of the Court.

Dated: May 15, 2026

New York, New York

Kacie A. Lally, J.C.C.