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

Decided on June 8, 2026

Docket No. CR-037168-25NY

Kacie A. Lally, J.

[*1]

Defendant Everlene Smith, charged with one count of Assault in the Third Degree pursuant to Penal Law § 120.00 (1) ("Count One"), one count of Assault in the Third Degree pursuant to Penal Law § 120.00 (2) ("Count Two"), one count of Menacing in the Second Degree pursuant to Penal Law § 120.14 (2) ("Count Three"), one count of Criminal Possession of a Weapon in the Fourth Degree pursuant to Penal Law § 265.01 (1) ("Count Four"), one count of Aggravated Harassment in the Second Degree pursuant to Penal Law § 240.30 (4) ("Count Five"), one count of Attempted Assault in the Third Degree pursuant to Penal Law §§ 110/120.00 (1) ("Count Six"), and one count of Harassment in the Second Degree pursuant to Penal Law § 240.26 (1) ("Count Seven"), moves for an order dismissing the information on the ground that it is facially insufficient. The Defendant also moves to dismiss the information pursuant to Criminal Procedure Law § 30.30, and for discovery-related relief. For the reasons set forth below, the Defendant's motions are granted in part and denied in part.

I. Factual Allegations

The criminal court information alleges that on December 4, 2025, at approximately 10:40 a.m., inside 454 East 10th Street, New York, New York, the Defendant struck the complaining witness "about the face with an open palm causing redness and swelling" to the complainant's face, as well as "substantial pain." The Defendant also "advanced toward" the complainant "while holding a knife and stating in substance 'I'm going to kill you.'" The Defendant's actions "caused [the complainant] to fear death or serious physical injury."

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 [*2]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. Analysis

(A) Assault in the Third Degree, Attempted Assault in the Third Degree, and Aggravated Harassment in the Second Degree

The Defendant argues that Counts One, Two, Five, and Six, charging him with Assault in the Third Degree pursuant to Penal Law § 120.00 (1), Assault in the Third Degree pursuant to Penal Law § 120.00 (2), Attempted Assault in the Third Degree pursuant to Penal Law §§ 110/120.00 (1), and Aggravated Harassment in the Second Degree pursuant to Penal Law § 240.30 (4) are facially insufficient, because the alleged injuries described do not constitute "physical injury" as defined by the statute. The Court agrees.

Under Penal Law § 120.00, an individual commits assault in the third degree when, "[w]ith intent to cause physical injury to another person, he causes such injury to such person," or when "[h]e recklessly causes physical injury to another person" (PL §§ 120.00 [1], 120.00 [2]). A person commits Aggravated Harassment in the Second Degree when, "with the intent to harass, annoy, threaten or alarm another person, he . . . strikes, shoves, kicks or otherwise subjects another person to physical contact thereby causing physical injury to such person" (PL § 240.30 [4]). Accordingly, "physical injury" is a required element of Counts One, Two, Five, and Six.

A "physical injury" is defined as an "impairment of physical condition or substantial pain" (PL § 10.00 [9]) The People do not contend that the complainant sustained an "impairment of physical condition," but rather that the allegations establish "substantial pain." "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]).

The nature of the alleged act is particularly relevant here, as courts have repeatedly held that "petty slaps, shoves, kicks and the like" do not fall "within the definition of" Penal Law § 10.00 (9) (Matter of Philip A., 49 NY2d 198, 200 [1980]). Indeed, the Court of Appeals has cautioned that "petty slaps" constitute "harassment and not assault." (People v Chiddick, 8 NY3d 445, 448 [2007]). Where the alleged act is an open-palmed slap, courts thus strongly consider "additional objective facts to support an inference that the slap caused substantial pain, such as the nature of the injury sustained, the duration of the pain, [and] whether there was any residual impairment or need for medical attention" (People v Singleton, 58 Misc 3d 157[A] [1st Dept 2018]).

Conclusory allegations that a complaining witness suffered "substantial pain" as a result of an open-palmed slap do not meet the physical injury requirement (id.). Indeed, while "[a]n allegation of a closed fist strike is a fact of an evidentiary nature that supports the otherwise [*3]conclusory allegation of substantial pain," an "allegation of an open-handed slap does not provide such evidentiary support" (People v Merceda, 88 Misc 3d 1268[A] [Crim Ct, NY County 2026]; see Singleton, 58 Misc 3d 157[A] [noting that "substantial pain requires evidence of more than slaps"]).

This reasoning applies here. Other than the statement that the complaining witness sustained "substantial pain" from the single slap to the face, the only additional allegations are that the complaining witness sustained "redness" and "swelling." The information does not allege the duration of the pain, whether there was any "residual impairment," or whether the complainant sought or received medical attention (Singleton, 58 Misc 3d 157[A]); see People v Dipoumbi, 23 Misc 3d 1127[A] [Crim Ct, NY County 2009] [allegations of "swelling" and "substantial pain" insufficient to establish physical injury"]).

In this case, therefore, the allegations of substantial pain, redness, and swelling resulting from a single open-palmed slap are insufficient to support the charges of Assault in the Third Degree, Aggravated Harassment in the Second Degree^FN1, and Attempted Assault in the Third Degree (see Singleton, 58 Misc 3d 157[A]; Matter of Philip A., 49 NY2d at 200). Counts One, Two, Five, and Six of the information are therefore dismissed as facially insufficient.

(B) Menacing in the Second Degree

A person commits Menacing in the Second Degree pursuant to Penal Law § 120.14 (2) when he "repeatedly follows a person," or engages in a "course of conduct," or "repeatedly commits acts over a period of time," thereby "intentionally placing or attempting to place another person in reasonable fear of physical injury." The Defendant argues that Count Three of the information is facially insufficient, as it does not allege repeated acts or a "course of conduct." The People do not address the Defendant's motion to dismiss Count Three and therefore do not appear to oppose dismissal of this Count.

The information alleges that on December 4, 2025, at 10:40 a.m., the Defendant slapped the complainant, and that he advanced toward her while holding a knife and threatened to kill her. The single time, place, and date of occurrence indicates that the alleged acts comprised a single incident. The information is devoid of any factual allegations suggesting repeated acts over a period of time, or a course of conduct. Accordingly, Count Three of the information is dismissed.^FN2

(C) Criminal Possession of a Weapon in the Fourth Degree

Penal Law § 265.01 (1) prohibits possession of, inter alia, any "switchblade knife, pilum ballistic knife, [or] metal knuckle knife." The Defendant moves to dismiss Count Four of the information because it fails to allege that the "knife" that the Defendant allegedly possessed was a type of knife enumerated in Penal Law § 265.01 (1). The People do not address the Defendant's motion to dismiss Count Four and, therefore, do not appear to oppose dismissal of this count.

The information alleges that the Defendant advanced toward the complainant "while holding a knife." No facts are alleged regarding the type of knife, blade length, or any other information from which the Court could determine that the knife falls within the ambit of Penal Law § 265.01 (1) (see People v Dreyden, 15 NY3d 100, 103 [2010] ["Not every knife is a weapon for purposes of PL § 265.01 [1]"). Count Four of the information is thus dismissed as facially insufficient.

(D) Harassment in the Second Degree

An individual commits Harassment in the Second Degree pursuant to Penal Law § 240.26 (1) when, with the intent to harass, annoy, or alarm another person, he strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do so. The Defendant moves to dismiss Count Seven of the information on the ground that the information does not allege any intent to harass, annoy, or alarm the complainant.

The Court disagrees. The allegations that the Defendant slapped the complainant, and that he advanced toward the complainant while holding a knife and stated, "I'm going to kill you," easily establishes both physical contact and the intent to harass, annoy, or alarm the complainant.

The Defendant's motion to dismiss for facial insufficiency is thus granted with regard to Count One charging Assault in the Third Degree pursuant to Penal Law § 120.00 (1), Count Two charging Assault in the Third Degree pursuant to Penal Law § 120.00 (2), Count Three charging Menacing in the Second Degree pursuant to Penal Law § 120.14 (2), Count Four charging Criminal Possession of a Weapon in the Fourth Degree pursuant to Penal Law § 265.01, Count Five charging Aggravated Harassment in the Second Degree pursuant to Penal Law § 240.30 (4), and Count Six charging Attempted Assault in the Third Degree pursuant to Penal Law §§ 110.00/120.00 (1). With regard to Count Seven charging Harassment in the Second Degree pursuant to Penal Law § 240.26 (1), the case will proceed.

IV. 30.30 Motion

The Defendant argues that because the information is facially insufficient, each statement of readiness by the People was illusory, because the People cannot be ready for trial on a defective accusatory instrument. However, the trial readiness statute "does not provide for any readiness-related consequence for a mistaken or incorrect certification" that all remaining counts in an accusatory instrument are facially sufficient (People v Williams, —NY3d—, 2025 NY Slip Op 06535 [2025]; CPL 30.30 [5-a]). Here, the Court finds that Count Seven, Harassment in the Second Degree (PL § 240.26 [1]) is facially sufficient. Therefore, the Court declines to invalidate the People's Certificate of Readiness filed on March 5, 2026, or subsequent statements of readiness.

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] [*4][b]).^FN3 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 her motion to dismiss, the Defendant argues that 124 days are chargeable to the People.^FN4 This Court finds that 90 days are chargeable to the People, as follows:

A. December 5, 2025 to January 15, 2026: 41 days

Following the filing of the accusatory instrument on December 5, 2025, the case was adjourned to January 15, 2026, for the People to obtain a supporting deposition. This 41-day period is chargeable to the People.

B. January 15, 2026 to March 10, 2026: 49 days

On January 15, 2026, the People did not have a supporting deposition. The case was adjourned to March 10, 2026, for the People to obtain one. On March 5, 2026, the People filed and served off-calendar a supporting deposition, Certificate of Compliance, Certificate of Readiness, Automatic Discovery Form, Addendum, and Discovery List. As discussed above, the Certificate of Readiness was valid and, therefore, tolled the speedy trial clock. The 49-day period from January 15, 2026 to March 5, 2026 is chargeable to the People. The remainder of this period is not chargeable to the People.

C. March 10, 2026 to April 8, 2026: 0 days

On March 10, 2026, the court deemed the accusatory instrument an information. The People made the record that they had filed and served their COC and COR on March 5, 2026, and that they were ready on March 10, 2026.^FN5 The case was adjourned to April 8, 2026, for trial. This period is not chargeable to the People.

April 8, 2026 to April 22, 2026: 0 days

On April 8, 2026, the People stated that they were ready for trial. The case was adjourned, at the defense request, to April 22, 2026, for trial. This period is not chargeable to the People (CPL 30.30 [4] [b]). On April 21, 2026, the Defendant filed the instant motion off-calendar.

D. April 22, 2026 to June 12, 2026: 0 days

On April 22, 2026, the Court set a motion schedule, and the case was adjourned to June 12, 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 Wade/Dunaway hearing is granted for the purpose of [*5]determining whether there was a prior relationship between the Defendant and the complainant that would obviate the possibility of a misidentification.

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

The Defendant's motion to preclude statements and identification evidence for which no notice was given by the People is denied, with leave to renew before the trial court.

This opinion constitutes the decision and order of the Court.

Dated: June 8, 2026

New York, New York

Kacie A. Lally, J.C.C.