The People of the State of New York v. Nezie Hernandez, Defendant. (2026)

Defendant moves to dismiss the instant prosecution on the grounds that the accusatory instrument is facially insufficient, the People failed to file a proper certificate of compliance before stating ready for trial, and the People's time to declare their readiness for trial under CPL 30.30 has expired.

Upon a review of the parties' submissions  ¹ and court file, Defendant's motion is DENIED in its entirety.

Findings of Fact and Conclusions of Law

Background

On May 15, 2025, Nezie E. Hernandez (hereinafter, "Defendant"), was arrested and charged with one count of Assault in the Third Degree under Penal Law 120.00(1), and one count of Aggravated Harassment in the Second Degree under Penal Law 240.30(1). Defendant was arraigned on May 16, 2025, on accusatory instruments signed by Detective Tineo, which were accompanied by the supporting deposition of the complaining witness [J.P.H.].

On September 9, 2025, the People filed with the Court a Certificate of Compliance with their initial discovery obligations under CPL 245.20(1) (hereinafter, "initial COC") and Statement of Readiness (hereinafter, "9/9 SOR").

On October 7, 2025, the People filed a second supporting deposition by [J.P.H.], dated October 4, 2025. In addition, they filed a Supplemental COC and Statement of Readiness.

On October 8, 2025, after providing additional discovery, consisting of screen captures of phone logs and photographs of [J.P.H.'s] injuries, the People filed another Supplemental COC and Statement of Readiness.

Facial Sufficiency

Defendant's original moving papers attacked the facial sufficiency of the May 15, 2025 accusatory instruments, contending they did not set forth reasonable cause to believe Defendant had committed any offense. Specifically, because [J.P.H.'s] supporting deposition described actions by "Eliza Santos," Detective Tineo's accusatory instruments charging Defendant "Nezie E. Hernandez" with Assault in the Third Degree and Aggravated Harassment in the Second Degree were not supported by any non-hearsay factual allegations. After Defendant filed her motion to dismiss, the People filed another supporting deposition by [J.P.H.] with the Court. In this supporting deposition, [J.P.H.] averred that he was shown a photograph by Detective Tineo of the individual [J.P.H.] knew as Eliza Santos, and he identified her as such to Detective Tineo. He further stated that Detective Tineo "made me aware of her name being Nezie E. Hernandez," which is a name [J.P.H.] had not known her to use during their two years of dating. In her Reply papers, Defendant maintained that the second supporting deposition was not sufficient to render the accusatory instruments facially sufficient because it still contained hearsay (what [J.P.H.] was told by Detective Tineo about Defendant's name). In addition, Defendant argued for the first time that the second-degree Aggravated Harassment charge was also facially insufficient because there is "no support" for [J.P.H.'s] assertion that Defendant called him from multiple phone numbers. The People argue that the accusatory instruments together with the two supporting depositions provide sufficient non-hearsay factual allegations to establish reasonable cause to believe that Defendant committed both charged offenses. The Court agrees.

It is well-settled that the factual part of a misdemeanor information must allege " 'facts of an evidentiary character supporting or tending to support the charges' (CPL 100.15 [3]; see, CPL 100.40 [1] [a]); that the 'allegations of the factual part ... together with those of any supporting depositions ... provide reasonable cause to believe that the defendant committed the offense charged' (CPL 100.40 [1] [b]); and that the '[n]on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof' (CPL 100.40 [1] [c]; see, CPL 100.15 [3])." People v Casey, 95 NY2d 354, 360 (2000); see also People v Dumas, 83 NY2d 729, 731 (1986). " 'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL 70.10(2). Thus, the prima facie case standard for an accusatory instrument is not as high as "as the burden of proof beyond a reasonable doubt required at trial." People v Henderson, 92 NY2d 677, 680-681 (1999) (citations omitted). It is also lower than the legally sufficient evidence standard required to survive a motion to dismiss an indictment (People v Suber, 19 NY3d 247 [2012]) or to dismiss at trial. People v Kalin, 12 NY3d 225, 230 (2009).

For this reason, the allegations in an information "should be given a fair and not overly restrictive or technical reading." Casey, 95 NY2d at 360 (citations omitted). The information need not "contain the most precise words or phrases most clearly expressing the charge"; rather, it must only provide facts sufficient to "give an accused notice sufficient to prepare a defense . . . and prevent a defendant from being tried twice for the same offense." People v McConnell, 11 Misc 3d 57, 60 (App Term, 9th and 10th Jud Dists 2006); Casey, 95 NY2d at 360; see also Dreyden, 15 NY3d at 103 ("The test is, simply whether the accusatory instrument failed to supply the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy."). Additionally, in analyzing the sufficiency of the accusatory instrument, the People are entitled to rely on the fair inferences to be drawn from the facts contained therein. See Casey, 95 NY2d at 360.

Here, taken together, Detective Tineo's allegations in the accusatory instruments and [J.P.H.'s] allegations in his two supporting depositions provide non-hearsay allegations that establish, if true, every element of the charges and Defendant's commission thereof. In his first supporting deposition, [J.P.H.] avers that the individual he knew as Eliza Santos hit him and scratched him on his neck and face, and that her actions caused him pain and discomfort and his neck to bleed and swell up. Those allegations are sufficient to establish the elements of Assault in the Third Degree (Penal Law 120.00[1]).

In addition, [J.P.H.] averred that the same night he was assaulted, Eliza Santos called him "nonstop" on the phone, and she "stated that she wanted to kill me and that she was going to harm me. Eliza said that she has a knife and she wants me dead. I told her to leave me alone and not call me anymore. I tried to cut all ties with her but she continues to call me and contact me from so many different phone numbers stating she wants to harm me. I do not know her limits which is frightening. I am scared for my safety." These allegations are sufficient to establish the elements of Aggravated Harassment in the Second Degree (Penal Law 240.30[1]). Defendant contends that they are not because the People did not provide "support" for [J.P.H.'s] assertion that he received calls from many phone numbers. Assessment for facial sufficiency, however, does not require corroboration. Nor is it an element of second-degree Aggravated Harassment that the People must establish what phone number a phone communication originated from. Instead, the People only need to establish that a defendant (1) communicated by telephone, computer, or any other electronic means, a threat to cause physical harm to another, (2) that the defendant knew or reasonably should have known that such communication would cause the individual to reasonably fear harm to his physical safety, and (3) the defendant did so with the intent to harass the individual. Here, [J.P.H.] alleged that he received phone calls "nonstop," Eliza Santos was on the line threatening to harm him and stating she had a knife and wanted him dead, he asked her to stop calling him, but she didn't, and that he was scared for his safety. Notably, all of this followed an evening when she came to his work and physically assaulted him. Thus, given the factual allegations, it is reasonable to infer that she knew or should have known that her communications would cause [J.P.H.] to reasonably fear harm to his physical safety, and she engaged in these actions with the intent to harass him. See People v Getch, 50 NY2d 456, 465 (1980) (a defendant can be presumed to "intend the natural and probable consequences of his actions"); People v Bracey, 41 NY2d 296, 301 (1977) (intent can be inferred from the criminal act itself as well as from the surrounding circumstances).

That Defendant is the individual who committed the two charged offenses is also supported by non-hearsay allegations. [J.P.H.'s] second supporting deposition avers that he identified the individual he knew to be Eliza Santos in a photograph to Detective Tineo. In his accusatory instruments, Detective Tineo averred that he was informed by [J.P.H.] that Defendant had struck and scratched [J.P.H.], causing physical injury, and that Defendant called [J.P.H.] repeatedly on the phone, after assaulting him and despite being told to stop, causing [J.P.H.] annoyance and alarm. Thus, reading all of the accusatory instruments and supporting depositions together, and making all reasonable inferences supported by the factual allegations, there are sufficient non-hearsay allegations to establish that [J.P.H.] identified Eliza Santos to Detective Tineo, and Detective Tineo knew that individual to be Defendant. The allegation that Detective Tineo told [J.P.H.] that Eliza's name was Nezie Hernandez is not necessary to infer that they were both referring to the same individual. See People v Powell, 42 Misc 3d 1203(A) (Kings Co Crim Ct 2013) (finding that the court may disregard additional hearsay allegations that are not necessary to support the required elements of the charged offenses). The non-hearsay allegations establishing that Detective Tineo and [J.P.H.] were both referencing the same individual is enough to "give an accused notice sufficient to prepare a defense . . . and prevent a defendant from being tried twice for the same offense." McConnell, 11 Misc 3d at 60; Casey, 95 NY2d at 360; see also Dreyden, 15 NY3d at 103. Requiring more would violate the Court of Appeals' instruction that the allegations in an information "should be given a fair and not overly restrictive or technical reading." Casey, 95 NY2d at 360 (citations omitted). Accordingly, Defendant's motion to dismiss pursuant to CPL 170.30 for facial insufficiency is DENIED.

Speedy Trial

Defendant also moves to dismiss the prosecution for a violation of CPL 30.30, contending that the People were not ready for trial within 90 days because the accusatory instrument was facially insufficient and the People's COC was improper. According to Defendant, the People are responsible for adjournments even when they are requested by defense counsel if there is no facially sufficient accusatory instrument. Defendant is incorrect. Since the time in which the People are required to declare their readiness for trial has not elapsed in this matter, Defendant's motion to dismiss on CPL 30.30 grounds in DENIED.

Defendant is charged with at least one class "A" misdemeanor and no felonies. Accordingly, the People are obligated to announce their readiness for trial within 90 days of the commencement of the action, less any excludable time. CPL 30.30(1)(b); People v Cortes, 80 NY2d 201, 208 (1992). In a motion to dismiss on speedy trial grounds, defendant bears the initial burden of alleging that the prosecution failed to declare their readiness for trial within the time required by CPL 30.30. People v Luperon, 85 NY2d 71, 77-78 (1995). The burden then shifts to the People to demonstrate whether any periods are to be excluded from the calculation, such that the allowable time has not elapsed. People v Santos, 68 NY2d 859, 861 (1986); see also People v Berkowitz, 50 NY2d 333, 349 (1980).

May 16, 2025 to June 3, 2025

The parties agree that this criminal prosecution commenced on May 16, 2025. Defendant was arraigned on the accusatory instruments that were filed. The case was adjourned to June 3, 2025 on the People's request without stating ready for trial. There are, therefore, 18 days chargeable to the People for this time period. See People v Stiles, 70 NY2d 765, 767 (1987).²

June 3, 2025 to June 10, 2025

On June 3, 2025, the People requested an adjournment to June 10, 2025, once again without stating ready for trial. The People are charged with the full 7-day adjournment.

June 10, 2025 to July 15, 2025

On June 10, 2025, the People were not ready and requested an adjournment to July 1, 2025. Defense counsel, however, required a longer adjournment and requested July 15, 2025. The Court granted that adjournment. The People are charged with the 21-day adjournment that they requested. The extra time sought by defense counsel (as supported by the transcript of the calendar call submitted by the People) is excluded as an adjournment to accommodate defense counsel's schedule. See CPL 30.30(4)(b); People v Barden, 27 NY3d 550, 555 (2016). The exclusion is not reliant on the existence of a jurisdictionally sufficient accusatory instrument or the People's readiness status. See People v Worley, 66 NY2d 523 (1984); Barden, 27 NY3d 550; People v Galante, 78 Misc 3d 31, 33 (App Term, 9th & 10th Jud Dists 2023).

July 15, 2025 to August 5, 2025

On July 15, 2025, the People extended an offer to Defendant, and defense counsel requested an adjournment to August 5, 2025 (as supported by the transcript of the calendar call submitted by the People). Time is excluded under CPL 30.30(4)(b) when the adjournment is at defendant's request, as it was here. See CPL 30.30(4)(b); Barden, 27 NY3d 550; Worley, 66 NY2d 523; Galante, 78 Misc 3d at 33. Accordingly, none of this time period is chargeable to the People.

August 5, 2025 to September 9, 2025

On August 5, 2025, the People requested an adjournment to August 12, 2025, and defense counsel then requested an adjournment to September 9, 2025 (as supported by the transcript of the calendar call submitted by the People). The People are charged with the 7-day adjournment they requested. The remainder of the time is excluded because it was at defense counsel's request to accommodate defense counsel's schedule. See CPL 30.30(4)(b); Barden, 27 NY3d 550; Worley, 66 NY2d 523; Galante, 78 Misc 3d at 33.

September 9, 2025 to March 30, 2026

On September 9, 2025, the People filed and served their initial COC and SOR. Defense counsel argued that the supporting deposition did not identify her client as the person who committed the offense, and a motion schedule was set. The matter was adjourned to November 25, 2025. Since Defendant raised new claims in her Reply, a supplemental briefing schedule was set on November 25, 2025, and the matter was adjourned to March 10, 2026. The matter was sub judice on that date, and it was adjourned again to March 30, 2026 for decision.

This time is excluded from the CPL 30.30 calculations as a reasonable delay attributable to motion practice. See CPL 30.30(4)(a); Worley, 66 NY2d 523; People v Hicks, 235 AD3d 417 (1st Dept 2025); People v Torres, 205 AD3d 524, 525 (1st Dept 2022). As the Court of Appeals has recognized, the exclusion of adjournments for motion practice applies regardless of whether the People are ready or the accusatory instrument has been converted to an information. Worley, 66 NY2d at 527.

Under the circumstances, Defendant's arguments that the initial COC and September 9th SOR were invalid have no impact on whether the time from September 9, 2025 to March 30, 2026 is excluded from speedy trial calculations under CPL 30.30(4). In any event, during this time frame, the People filed a second supporting deposition that converted the accusatory instruments into facially sufficient informations, and they also filed two Supplemental COCs, the last of which was filed on October 8, 2025. Defendant has not attacked the validity of the October 8, 2025 Supplemental COC. Accordingly, the People's statement of readiness on October 8, 2025—after the filing of the second supporting deposition and the filing of the October 8, 2025 Supplemental COC—is valid. Since the entire time period from September 9, 2025 is excluded under CPL 30.30(4)(a) regardless of the People's readiness status, the Court does not need to address whether the People's earlier statements of readiness and COC/SCOC on September 9, 2025 and October 7, 2025 were valid.

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In sum, the People are responsible under CPL 30.30 for fifty-three (53) days of delay. Since that is below the 90 days permitted to them under CPL 30.30(1)(b), Defendant's motion to dismiss on speedy trial grounds is DENIED.

THIS DECISION CONSTITUTES THE ORDER OF THE COURT.

Dated: March 30, 2026

White Plains, NY

ORDERED:

HON. MARY JO L. BLANCHARD

CITY COURT JUDGE

FOOTNOTES

1.   The submissions consist of Defendant's Notice of Motion, dated September 17, 2025, and accompanying Affirmation of Marie C. Vitale, Memorandum of Law, and exhibits; Affirmation in Opposition of ADA Michael Levin, dated October 6, 2025, and accompanying Memorandum of Law, and exhibits; Reply Affirmation of Marie C. Vitale, dated October 10, 2025, accompanying exhibits; Affirmation in Opposition of ADA Michael Levin, dated January 20, 2026, and accompanying exhibits; and Reply Affirmation of Marie C. Vitale, dated February 9, 2026, accompanying exhibits.

2.   The People mistakenly calculate this period as 19 days instead of 18 days. It appears that they included May 16, 2025 in their count; however, when calculating the number of days that have passed, the day of reckoning is not included. See Stiles, 70 NY2d at 767; NY General Construction Law § 20. The People repeat this accounting error in each of the adjournment periods. Accordingly, their ultimate calculation of 57 days double counts four dates, and should actually be 53 days.

Mary Jo. L. Blanchard, J.