Criminal Court of the City of New York, Bronx County

Decided on July 15, 2026

Docket No. CR-001366-26BX

David L. Goodwin, J.

[*1]

Defendant I. Milan^FN1 was charged in connection with an incident where she allegedly approached two people while holding a metal rod and said she would hit them. Through counsel, she now moves to dismiss on C.P.L. § 30.30 statutory speedy trial grounds, contending that the People's certificate of compliance (COC) is invalid and, by extension, did not stop the speedy trial clock. She also moves to dismiss each count—fourth-degree weapon possession, third-degree menacing, and second-degree harassment—as facially insufficient, because (in her view) the allegations in the accusatory instrument do not make out any of the charges. In particular, she argues that what she is accused of doing—making a verbal threat while holding a metal rod—does not amount to the "physical menace" required under the third-degree menacing statute.

As explained below, her motion will be granted in part and denied in part. The COC challenge fails, but both the weapon possession and menacing counts are facially insufficient—the latter because, as Milan correctly argues, the barebones allegations neither establish nor permit a reasonable inference that she created fear through physical menace. [*2]Second-degree harassment is the only count that survives. Huntley/Wade/Mapp/Dunaway hearings will be ordered.

I. Background

The Accusatory Instrument, Supporting Depositions, and Initial Adjournments

Milan is charged with fourth-degree criminal possession of a weapon (P.L. § 265.01(4)), third-degree menacing (P.L. § 120.15), and second-degree harassment (P.L. § 240.26(1)), arising out of an incident on January 8, 2026. The facts were set out in a short, three-sentence accusatory instrument that was sworn by Officer Ortiz:

At the above time and place, [two] informants observed defendant to have on her person, in her hand, one (1) metal rod.

The defendant approached informants and with the metal rod in defendant's hand [] stated in sum and substance: I KNOW WHERE YOU LIVE I AM GOING TO HIT YOU.

Defendant's aforementioned conduct caused informants to experience annoyance, alarm, and fear for [their] physical safety.

Accusatory Instrument at 1-2 ("deponent is informed by" language omitted).

The accusatory instrument identified Milan in its caption as the "Defendant." However, as reflected in the blockquote above, the body of the instrument just said "defendant" and never actually named her. See id.

Milan's initial court appearance on a desk appearance ticket was January 28, starting the § 30.30 clock. About a month and a half later, on March 12, the People converted the complaint into an information through supporting depositions from the two complaining witnesses, both of which carried the caption "The People of the State of New York v. I[.] Milan [], Defendant," and read:

I, [complaining witness,] say that I have read the complaint filed in the above-entitled action and attached hereto and that the facts stated in that complaint to be on information furnished by me are true upon my personal knowledge.

Defense's Mot., Ex. A at 1-2.

The People's Discovery Outreach

The People initially requested discovery on March 11, 2026. They received the requested materials one day later on March 12, as the arresting officer had already provided most of the paperwork. The People sent their compiled discovery package to the defense that day.^FN2

The People did not conduct any additional outreach prior to filing their COC and declaring ready for trial on April 27, which was 89 days after commencement.

Readiness and Discovery Conferral

According to the COC, the People's disclosures encompassed police-generated paperwork; activity logs and body-worn camera footage for 15 officers; 911 calls; and impeachment material for Officer Hernandez and Officer Ortiz, both of whom were designated as likely to testify. See Defense's Mot., Ex. B at 2-5.

Defense counsel sent discovery objections to the People on May 7. Among other [*3]potentially missing discovery, counsel inquired about metadata for the 911 calls, audit trail logs for the body-worn camera footage, updated activity logs for the two testifying officers, an interrupted patrol log, roll call logs, and the ZOLPA. Also requested were impeachment materials for the two testifying officers, including central personnel indices for both. Defense's Mot., Ex. D at 1.

The People responded seven days later, on May 14. They had requested 911 call metadata, already had shared the body-worn camera audit trail logs, and were seeking updated activity logs. The People took the position that the interrupted patrol log, ZOLPA, and central personnel indices were not discoverable. The balance of the impeachment material either had been turned over already, did not exist, or was being sought. Defense's Mot., Ex. E at 1-2.

The following day, May 15, the People sent to the defense updated activity logs for the two testifying officers, along with the roll call logs and ZOLPA. According to the supplemental COC filed on the same date, the People maintained that neither the roll call logs nor ZOLPA were automatically discoverable, but the People were disclosing them anyway. Defense's Mot., Ex. C at 2-3.

The defense again reached out again by email on May 27, seeking "CCRB Investigative Recommendations for Each Case for" the two testifying officers. Counsel also requested, for the first time, IAB log attachments for Officer Ortiz's substantiated IAB findings. Defense's Mot., Ex. G at 1.

The People promptly responded the following day, advising the defense that CCRB materials were not in the People's control and that IAB log attachments were not automatically discoverable. Defense's Mot., Ex. H at 1.

II. The Parties' Dismissal Arguments

Milan filed this counseled omnibus motion on May 29. In its two main branches, she seeks invalidation of the COC and dismissal of the accusatory instrument on C.P.L. § 30.30 speedy trial grounds and, in the alternative, dismissal of each charged count as facially insufficient.

Speedy Trial

Regarding statutory speedy trial, Milan contends that the People neither were nor are in compliance with their statutory discovery obligations, requiring invalidation of their COC. The belated disclosures and omissions, Milan asserts, show that the People did not exercise the requisite due diligence before declaring ready for trial. See Defense's Mot. at 17-20. Thus, their COC did not stop the § 30.30 clock—and since the People's 90 days under § 30.30 had long expired, the accusatory instrument should be dismissed.

In support of her position, Milan points to the belated disclosure of the updated activity logs, roll call logs, and ZOLPA, and nondisclosure of the 911 call metadata, IAB log attachments, the central personnel indices, advocate reports for Officer Ortiz's substantiated IAB findings, updated CCRB search for Officer Hernandez, and the interrupted patrol log. Defense's Aff. ¶¶ 10-11; Defense's Mot. at 12-15. However, she concedes that the updated activity logs, roll call log, and ZOLPA did not reveal anything of significance in this particular case, although she argues that the latter two items should still be discoverable as a matter of course. Defense's Mot. at 14-15, 19.

The People respond by defending their diligence, pointing to the ample discovery provided to the defense, the limited reach of the defense's objections, and the lack of any prejudice to the defense. See People's Resp. at 10, 15, 22-24. The belated discovery was provided [*4]shortly after Milan's objections were received, well within the conferral period and reflecting the People's efforts to comply with the discovery statute; while the People still contend that neither the ZOLPA nor the roll calls logs are discoverable, the People provided them anyway out of an abundance of caution. See People's Resp. at 11-16, 21-22. The allegedly withheld items either do not exist—the additional 911 metadata, updated CCRB histories, and Department Advocate's Office Reports all fall into this category—or are not discoverable, such as the central personnel indices and IAB log attachments. See People's Resp. at 16-20.

In reply, Milan attacks the People's diligence factor by factor, argues that the People did not undertake sufficient efforts to investigate the supposedly missing material, and challenges the continued withholding of the central personnel indices and IAB log attachments. See Defense's Reply at 8-17.

Facial Sufficiency

Regarding facial sufficiency, Milan argues that each count is defective and should be dismissed.

Globally, the instrument is defective because it fails to establish that she was the perpetrator. Milan points out that the factual part of the instrument never actually names her, referring only to a "defendant." This lack of specificity, she argues, falls short of establishing her identity. Defense's Mot. at 20-21.

The third-degree menacing count, P.L. § 120.15, is facially insufficient because the barebones allegations do not make out the elements of physical menace or fear of injury. A verbal threat unaccompanied by physical action is not physical menace, so making an alleged verbal threat while simply holding a metal rod of undefined size or heft cannot suffice, especially without any accompanying physical act. Any threat allegedly made was also conditional. Defense's Mot. at 22-24.

Similarly, the second-degree harassment count, P.L. § 240.26(1), fails because the offense reaches only a threat of current harm, not of future harm. Since the purported threat here was of future harm, the facts alleged do not establish that count.

Finally, the fourth-degree weapon possession count, P.L. § 265.01(4) is defective because the charged subsection reaches possession of certain firearms by persons convicted of felonies or serious offenses, which has nothing to do with these charges. Defense's Mot. at 21-22.

In response, the People concede that the weapon possession count is facially insufficient, see People's Resp. at 26-27, but otherwise dispute facial insufficiency. The references to "defendant" unambiguously refer to Milan, who is named as the defendant in the caption; holding the metal rod while making an explicit threat of harm amounted to physical menace, and could plausibly create a risk of imminent harm; and the alleged threat itself need not be read as conditional, and so adequately established harassment. See People's Resp. at 26-33.

In reply, Milan distinguishes the cases upon which the People rely as unpersuasive and not controlling, and otherwise reiterates her arguments that the instrument fails to make out physical menace or an imminent (as opposed to future/conditional) threat. Defense's Reply at 18-20. Among other things, she emphasizes that the instrument contains no allegations whatsoever that would link the metal rod she allegedly held to the substance of her statements. Defense's Reply at 19.

At the Court's request, the parties also submitted supplemental memoranda addressing whether dismissal of counts on insufficiency grounds in this context should be with prejudice or without prejudice.

III. Legal Standards and Discussion

a. The People's COC is valid because it is the product of reasonable efforts to comply with statutory discovery obligations.

Milan's challenge to the COC does not succeed because the People have demonstrated that they exercised due diligence in connection with their discovery obligations. She was provided a comprehensive discovery package within the 90-day deadline, the People swiftly corrected some of the alleged omissions and generally were responsive otherwise, and what remains does not undermine the People's diligence on this record—even assuming that all outstanding and belatedly disclosed items are indeed discoverable. Her request to invalidate the COC, and to dismiss on § 30.30 grounds, will therefore be denied.

A COC is valid if it is the product of due diligence,^FN3 which requires a prosecutor to make reasonable inquiries and efforts to comply with statutory discovery obligations. People v. Bay, 41 NY3d 200, 211 (2023). "Reasonableness" is based on the totality of the People's efforts to comply with their obligations—an assessment guided by a nonexhaustive set of factors found in C.P.L. § 245.50(5)(a). The People bear the burden of demonstrating due diligence. Bay, 41 NY3d at 213.

The potentially weakest diligence factor for the People here is a threadbare record of pre-readiness outreach. According to their own record, the People made only one attempt to gather initial discovery before declaring ready. Were the People to have come up short—in other words, were the alleged omissions in their discovery package more fundamental—the People could risk invalidation of their COC due to the paucity of their outreach. See, e.g., People v. Adams, 88 Misc 3d 131(A), 2026 NY Slip Op. 50233(U), at *2 (App. Term, 1st Dept. 2026) (invaliding a COC when the People failed to make an adequate record of their pre-readiness outreach).

But reasonableness is a case-specific inquiry, see Bay, 41 NY3d at 212—and the People's single attempt here produced the lion's share of the discovery that could be expected in a simple case like this one. The People obtained and timely provided a comprehensive package that included all apparent body-worn camera footage, the 911 calls, and other fundamental police-generated discovery. If a single attempt in a simple case yields most of what can be expected, it is difficult to conclude that the effort was somehow inherently unreasonable.

The People also promptly responded to Milan's discovery objections and were able to fix several of the omissions, which is relevant under the C.P.L. § 245.50(5)(a) factors.^FN4 Milan also [*5]candidly concedes, Defense's Mot. at 19, that the "belated" discovery—the updated activity logs for the two main officers, roll call logs, and the ZOLPA—yielded little of relevance to the case. See C.P.L. § 245.50(5)(a) (directing courts to consider whether belated discovery is insignificant); see also People v. Whitney, 88 Misc 3d 905, 909 (N.Y.C. Crim. Ct., Bronx Co. 2025) (David, J.) (observing that "a number of the due diligence are satisfied" when outstanding discovery is disclosed during the 35-day conferral window).

The remaining non-impeachment material, consisting of 911 call metadata and the interrupted patrol log, is overshadowed by what was timely provided by the People. The 911 call metadata would apparently be useful because it might permit Milan to compare the operator numbers, start-and-end times, and call-location information against "the disclosed event chronology," thereby ensuring that "the origin/duration/time can be lined up with the overall event chronology." Defense's Mot. at 13. The People say that the metadata was not provided despite their requests, which Milan thinks is no excuse because 911 metadata is always generated. See Defense's Reply at 12. The interrupted patrol log, meanwhile, would apparently document when and how various officers entered the station house. Defense's Mot. at 14. Assuming that both of these were automatically discoverable and would have had some relevance to the defense, but see People v. Beeker, 89 Misc 3d 1215(A), 2026 NY Slip Op. 50952(U), at *6 (N.Y.C. Crim. Ct., Bronx Co. 2026) (González-Taylor, J.) (concluding that the interrupted patrol log is not discoverable because it is administrative and not substantive), the alleged omissions are sufficiently minor to not weigh in favor of invalidation of the COC.

The issue of the allegedly missing impeachment material is more difficult to assess, due in large part to a lack of context. While Officer Ortiz's role in the case can be inferred, Officer Hernandez's part is less clear. Meanwhile, the IAB logs ^FN5 themselves were not attached to the [*6]motion papers and were not exhaustively described, although it is reasonable to assume that their attachments relate at least in part to the same substantiated findings referenced in the portion of the defense's motion that addresses the Department Advocate's Office reports. See Defense's Mot. at 13-14. The attachments would be independently discoverable if they tended to impeach the officers' credibility. See People v. Fuentes, 45 NY3d 325, 334-35 (2025); see also People v. Terry, 89 Misc 3d 1207(A), 2026 NY Slip Op. 50854(U), at *3 (N.Y.C. Crim. Ct., NY Co. 2026) (Coleman, J.) (addressing the discoverability of IAB log attachments after Fuentes). But the current state of the record does not permit a clear determination.

Setting that aside, and assuming that all the requested documents would be discoverable and actually exist—which the People dispute ^FN6—the missing impeachment material does not weigh heavily in favor of invalidating the COC. The discoverability of some of these records is in flux, with no binding appellate authority dictating whether they must be provided and at least some trial court authority from this county suggesting they do not. See, e.g., People v. Addai, — Misc 3d —, 2026 NY Slip Op. 26095, at *5 (N.Y.C. Crim. Ct., Bronx Co. 2026) (Bahr, J.) (concluding that a central personnel index was not discoverable); People v. S.A., 89 Misc 3d 1204(A), 2026 NY Slip Op. 50827(U), at *2 (N.Y.C. Crim. Ct., Bronx Co. 2026) (Moore, J.) (same). Moreover, the records appear to relate to incidents that the defense already knows a lot about; in other words, the attachments would not be the difference between the ability and inability to impeach, but instead might provide more information on the allegations. Accordingly, any lapse here would not require invalidation of the COC. See Beeker, 2026 NY Slip Op. 50952(U), at *6-7 (observing that although significant discoverable impeachment material was not provided, the COC was nevertheless valid).^FN7

As set forth above, the totality of the circumstances and the § 245.50(5)(a) factors—all of which have been considered, even if not mentioned—demonstrate that the People made reasonable efforts to comply with their statutory discovery obligations. The People's COC withstands Milan's challenge. And as there is no argument that over 90 days would have elapsed otherwise, Milan's motion to dismiss on statutory speedy trial grounds will be denied.

b. Neither the weapon possession count nor the menacing count is facially sufficient; only the harassment count survives.

Milan's facial sufficiency challenge, by contrast, will be granted in part. As she argues, and as the People concede, the fourth-degree criminal possession of a weapon count is facially insufficient as charged; however, even if it had been charged under the "correct" subsection of the statute, it would still be facially insufficient. The menacing count fails because neither the facts alleged nor the inferences drawn from those facts make out the requisite element of physical menace. The harassment count survives, however, because it is reasonable to infer that Milan made an actionable threat of physical contact.

The accusatory instrument in this case, which is a misdemeanor information without any unconverted hearsay, is facially sufficient if the facts alleged in the instrument itself and any supporting depositions, accepted as true and with reasonable inferences drawn from them, establish reasonable cause to believe the defendant committed the charged offenses while also setting forth each element of those offenses. See People v. Burgess, — NY3d —, 2026 NY Slip Op 02438, at *1 (2026) (reasonable cause and a prima facie case); People v. Morel, — NY3d —, 2026 NY Slip Op. 00822, at *2 (2026) (documents that can be considered); People v. Jackson, 18 NY3d 738, 741, 747 (2012) (assuming the truth and reasonable inferences). The allegations and pleaded facts must be read in a fair and not overly restrictive or technical way, People v. Hatton, 26 NY3d 364, 370 (2015), and be evaluated in the context of "common sense [and] the significance of the conduct alleged," People v. Gonzalez, 184 Misc 2d 262, 264 (App. Term, 1st Dept. 2000).

While reasonable inferences must be drawn from the pleaded facts, a court may not "engage[ ] in impermissible speculation to fill in the gaps left open" by the allegations. People v. Mejicanos, 40 Misc 3d 23, 26 (App. Term, 2d, 11th, & 13th Jud. Dists. 2013). The difference between permissible inferences and impermissible speculation depends on "the quantity and quality of the facts from which [a] conclusion is drawn." Goldhirsh Grp., Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir. 1997); see also People v. Fratello, 92 NY2d 565, 573 (1998) (distinguishing between "pure speculation" and "legitimate inference from proven facts").

1. Milan's identity is adequately established even though the factual portion of the instrument refers only to a "defendant."

Milan's global, identity-based challenge to the instrument does not succeed. The courts that have reached the challenge she raises—that a failure to name a specific person as the "defendant" in the factual portion of an accusatory instrument means the defendant's identity was not established—have apparently all rejected it, including at least one appellate court. Even if that were not the case, Milan's challenge would independently fail on the merits.

The predicate of her argument is, of course, correct. The instrument does not name her in its factual portion, and instead refers only to a "defendant." As a refresher, it says:

At the above time and place, [two] informants observed defendant to have on her person, in her hand, one (1) metal rod.

The defendant approached informants and with the metal rod in defendant's hand [] stated in sum and substance: I KNOW WHERE YOU LIVE I AM GOING TO HIT YOU.

Accusatory Instrument at 1-2 ("deponent informed by" language still omitted). Milan is instead identified as the "defendant" only in the caption.

But she is not correct about the consequences. Milan believes that the omission of her name from the facts means the instrument does not establish her identity as the defendant. However, the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts has rejected an identical argument, concluding that a misdemeanor information that named only a "defendant" in its factual portion was still facially sufficient because, among other things, "the reference to 'defendant' throughout the factual portion of the accusatory instrument clearly referred to this defendant, the only person listed in the caption," and therefore provided fair "notice of [the] defendant's identity." People v. Aguilar-Contreras, 68 Misc 3d 126(A), 2020 NY Slip Op. 50841(U), at *2 (App. Term, 2d, 11th, & 13th Jud. Dists. 2020) (citing People ex rel. Lewis v. Graham, 57 AD3d 1508, 1509 (4th Dept. 2008)). At least two other trial courts have also concluded that references to a "defendant" can be clarified by the caption of the instrument. See People v. Rumph, 50 Misc 3d 1206(A), 2016 NY Slip Op. 50001(U), at *2 (N.Y.C. Crim. Ct., NY Co. 2016) (Statsinger, J.); People v. Ross, 31 Misc 3d 1228(A), 2011 NY Slip Op. 50895(U), at *2-3 (Town Ct., Webster 2011) (DiSalvo, J.).

The two decisions Milan relies on to the contrary are readily distinguishable. The first, Matter of Jonathan YY., 134 AD3d 1344, 1345 (3d Dept. 2015), involved a juvenile delinquency petition that suffered from a hearsay defect, as the person swearing out the instrument specifically said that he did not know the defendant's identity and that the person was "later identified" as the youth. There is no similar hearsay defect in this case. The second, People v. Solito-Leon, 73 Misc 3d 139(A), 2021 NY Slip Op. 51174(U), at *1 (App. Term, 9th & 10th Jud. Dists. 2021), involved a supporting deposition using a different name from the person identified as the "defendant" by the caption. Neither Jonathan YY. nor Solito-Leon addresses the precise situation encountered here or provides a counterweight to the on-point Aguilar-Contreras.

In any event, even if the slate were blank, Milan's argument would be rejected on the merits, as the supporting depositions cure any ambiguity in the converted instrument. Both complaining witnesses signed support depositions attesting that the facts sourced to them were true—affirmations they could not have made without understanding who the "defendant" was. And while the Criminal Procedure Law makes a technical distinction between the caption and the factual portion of the instrument, see C.P.L. § 100.15(1), a layperson would have no reason to ignore the identification of the defendant in the caption of either the instrument itself or the [*7]supporting deposition the person was about to sign. Cf. People v. Slade, 37 NY3d 127, 137 (2021) (explaining that latent defects in an instrument or supporting deposition are irrelevant to a facial sufficiency assessment). Accordingly, to the extent that there was any ambiguity about the defendant's identity before conversion, the supporting depositions removed the ambiguity, as they confirmed that Milan was indeed the "defendant."

For these reasons, the accusatory instrument adequately establishes Milan's identity as the defendant. Milan's challenge to the contrary will be denied.

2. The weapon-possession charge is facially insufficient, as it was charged under the wrong subsection—but it would fail even under the right one.

Milan's challenge to the weapon-possession count, by contrast, is meritorious. The first count of the accusatory instrument charges fourth-degree criminal possession of a weapon under C.P.L. § 265.01(4), which pertains to the possession of certain firearms by persons with previous convictions. As this case has nothing to do with firearms, the People concede they charged the wrong subsection. People's Resp. at 26-27. Accordingly, that count is facially insufficient and will be dismissed.

Even if assessed under subsection (2), which reaches "any other dangerous or deadly instrument or weapon," the count would still be facially insufficient. A "dangerous instrument" is one that "under the circumstances in which it is used, attempted to be used or threatened to be used" is "readily capable of causing death or other serious physical injury"—with "serious physical injury" limited to those injuries causing a "substantial risk of death," protracted disfigurement, or protracted impairment. P.L. § 10.00(10), (13).

Here, there is nothing that would indicate that this metal rod could "readily" cause serious physical injury if used to "hit" someone. Drawing that link would be impermissible speculation without additional facts about the rod. The count would thus be defective even if charged under the appropriate subsection.

3. The menacing count fails because neither the barebones facts nor the reasonable inferences drawn from those facts make out a physical menace.

The third-degree menacing count also fails, because neither the allegations nor reasonable inferences drawn from those allegations establish the element of physical menace. All that is clearly alleged is a verbal threat, which is normally insufficient, while Milan held—not brandished or gestured with, but held—an object that is not described with sufficient detail to be a per se weapon or otherwise intimidating. No other details are offered to establish physical menace—for instance, information about her approach, the distance she stood from the complaining witnesses, any gestures she might have made, or even her size as compared to the two complaining witnesses. So while a wide range of conduct can satisfy the physical menace element, these allegations fall below the waterline.

At issue is the statutory requirement that a person place another in fear of "physical injury" through "physical menace." P.L. § 120.15. Physical menace requires more than a mere verbal threat. See In re Akheem B., 308 AD2d 402, 403 (1st Dept. 2003).^FN8

Appellate precedent confirms that menacing reaches a wide range of conduct and, by extension, that pleading or establishing physical menace does not require much. A "threatening gesture" can suffice. People v. Kennedy, 81 Misc 3d 135(A), 2023 NY Slip Op. 51389(U), at *2 (App. Term, 9th & 10th Jud. Dists. 2023). So too can the display of a weapon, or of an object that could readily be perceived as a weapon,^FN9 such as a knife, in the appropriate "surrounding circumstances." People v. Reaves, 102 AD3d 565, 565 (1st Dept. 2013); see, e.g., People v. Taylor, 7 Misc 3d 126(A), 2005 NY Slip Op. 50400(U), at *2 (App. Term, 2d & 11th Jud. Dists. 2005) (pointing a gun and threatening to kill a person amounted to physical menace); In re Warren, D., 67 AD2d 625, 625 (1st Dept. 1979) (aggressive display of a knife, coupled with threats, amounted to physical menace); see also Singh v. Gonzales, 432 F.3d 533, 539-40 (3d Cir. 2006) (observing that brandishing a gun and sword amounted to "physical menace" under a similar Pennsylvania statute). For instance, a person making a "chopping" motion with a pen, while warning a security guard to "back off," was determined to have caused fear by physical menace. People v. Ross, 34 Misc 3d 151(A), 2012 NY Slip Op. 50277(U), at *1 (App. Term, 1st Dept. 2012).

Case law also confirms that a physical menace can be established even if harm appears unlikely or remote. In one case, allegations that a person tapped a knife on the window of a restaurant while making eye contact with the complainant sufficed to establish third-degree menacing, even though the defendant and complainant were on opposite sides of the window, no verbal threats were made, and the likelihood of injury was remote. See People v. Kramtsov, 30 Misc 3d 128(A), 2010 NY Slip Op. 52274(U), at *1 (App. Term, 1st Dept. 2010).

But "not much" is still something—and here, the allegations establish very little at all. The only thing clearly articulated is a verbal threat, which (as mentioned above) cannot support the charge by itself. Thus, the question becomes whether anything else in the accusatory instrument transformed the verbal threat into physical menace.

The instrument does not provide an easy answer. There is no allegation of an explicitly threatening gesture. Milan was just holding the rod in her hand, not pointing it or brandishing it; and since no detail is given about the rod's dimensions or heft, it is difficult to infer that the rod would be inherently perceived as threatening. Although displaying a potentially innocuous object in a hostile way can create physical menace—for instance, threatening to beat someone while snapping a belt, People v. Ballard, 46 Misc 3d 145(A), 2015 NY Slip Op. 50210(U), at *2 (App. Term, 2d, 11th, & 13th Jud. Dists. 2015)—there is nothing alleged that would permit the reasonable inference that Milan was displaying the rod in a threatening way. The People have identified no case, and the undersigned is aware of none, where a verbal threat made while holding this kind of object was itself enough to establish physical menace.

Nor is any detail provided about other potentially physical aspects of the encounter. The facts do not clarify whether Milan's "approach" was aggressive or slow, or her distance from the complaining witnesses, or even whether she was physically imposing as compared with the two complaining witnesses.

These details can matter, since the context and setting of a verbal threat can establish physical menace. See, e.g., I.E. v. J.I., 233 AD3d 608, 608 (1st Dept. 2024) ("aggressive words and actions," such as screaming and shouting and preventing a person from leaving her car, elevated threat of violence into physical menace); People v. Madsen, 2003 NY Slip Op. 51409(U), at *1 (App. Term, 1st Dept. 2003) (defendant's "rais[ing] his fist and threaten[ing] to hit the complainant while standing very close to her" established physical menace (internal quotation marks omitted)); see also State v. Rouse, 23 N.W.3d 467, 475, 479-80 (S.D. 2025) ("entirety of" the defendant's conduct, including threats, agitation, and holding "pencil in his clenched fist with the sharp point facing outward," established South Dakota's version of physical menace, although it was a "close call"). Even allegations of a prior relationship can add necessary detail by showing how the parties know each other and permitting the contextual inference that a seemingly innocuous encounter was anything but. See Yvette H. v. Michael G., 270 AD2d 123, 123 (1st Dept. 2000) (concluding that encountering a person physically present in violation of an order of protection established a physical menace). Here, though, the encounter here is decontextualized, without any of the information that would permit a reasonable inference of physical menace without a threatening gesture, clear weapon, or other aggravating element.

For these reasons, the allegations establish only that Milan approached the complainants and threatened to "hit" them while also holding a rod in her hand. A verbal threat is not enough to establish physical menace, and a verbal threat while holding an object of this sort fares little better when no other details are provided about the context of the encounter.

Speculation at each relevant step, not reasonable inferences, would be required to transform this set of facts into third-degree menacing. Therefore, the count is facially insufficient and will be dismissed.

4. The harassment count is facially sufficient because Milan's "threat" can reasonably be read to imply an imminent assault, not a future or conditional one.

However, the second-degree harassment count survives Milan's challenge. A person is guilty of that offense when, among other things, she threatens to subject another person to physical contact with the intent to harass, annoy, or alarm that person. P.L. § 240.26(1).

Milan's main argument is that the threat was conditional or was a threat of future violence—i.e., she knew where they lived, and would "hit" them there at some undefined point in the future. See Defense's Mot. at 24; Defense's Reply at 20. While that reading of her statement is not illogical, it is also not the only reasonable interpretation; for instance, she could know where they live and intend to hit them right now, which would establish the threat of near-term physical contact.

A potentially innocuous construction does not undermine sufficiency. See People v. John-Connor, 57 Misc 3d 142(A), 2017 NY Slip Op. 51396(U), at *1 (App. Term, 1st Dept. 2017) (potentially innocent explanations were "irrelevant on this pleading stage inquiry"); People v. Wilson, 30 Misc 3d 138(A), 2011 NY Slip Op. 50222(U), at *1 (App. Term, 9th & 10th Jud. Dists. 2011) (reading of facts consistent with innocence was an "issue for trial"). Meanwhile, Milan's intent to harass, annoy, or alarm can be inferred from her conduct. See People v. Cruz, 53 Misc 3d 95, 97 (App. Term, 1st Dept. 2016).

Milan's reliance on People v. Hargrove, 47 Misc 3d 136(A), 2015 NY Slip Op. 50499(U) (App. Term, 2d, 11th, & 13th Jud. Dists. 2015), is misplaced. First, the threat in Hargrove was truly conditional—"if he and his client continue to try and take money from the defendant's wife [*8][then] he would hurt them," id. at *1—while Milan's statement is more akin to a non sequitur. Second, and perhaps more saliently, the threat in Hargrove was made over the phone, and the defendant could not act on it because he was not physically present with the complainant. See id. Here, by contrast, Milan was physically present with the complaining witnesses. Her statement can be reasonably construed to establish a genuine and immediate threat of physical contact.

Accordingly, this count withstands Milan's challenge.

5. A determination of whether to permit these errors to be fixed can await a request to supersede.

The parties were asked to address whether the People should be permitted to file a superseding instrument to address the sufficiency defects discussed above. This fundamental mechanic of criminal court practice—do the People get to fix a facially insufficient count after the § 30.30 time would have expired?—has surprisingly little clear appellate authority on point, especially in the wake of the last half-decade of statutory revisions.

The general consensus among trial courts in this county appears to be "yes." The parties' submissions, meanwhile, present cogent arguments for both "yes" and "no."

However, the People have not asked to supersede their instrument, and they may not have any desire to do so. Accordingly, any ruling on this point can be deferred pending an actual request to supersede, which (if made) should be directed to the undersigned.

* * *

For the reasons set forth above, it is ORDERED that the COC challenge is DENIED. As Milan makes no argument that the speedy trial time has run if the COC were valid, the dismissal branch premised on speedy trial grounds is DENIED. The branch seeking dismissal on facial sufficiency grounds is GRANTED IN PART and DENIED IN PART, and counts one and two of the accusatory instrument are DISMISSED.

Huntley/Wade/Mapp/Dunaway hearings are ORDERED. Any Sandoval/Ventimiglia/Molienux/preclusion issues are referred to the trial court. Any request for relief not specifically mentioned is DENIED.

Dated: July 15, 2026

Bronx, NY

David L. Goodwin

Judge of the Criminal Court