The People of the State of New York v. Henry Rosario, Defendant. (2026)

Defendant moves to dismiss the instant prosecution on the grounds that the accusatory instrument contains unconverted hearsay, which rendered the People's statement of readiness invalid, and resulted in the People not being ready to try this matter within the statutorily permitted time under CPL § 30.30. The People oppose defendant's motion. They argue that the accusatory instrument contains sufficient non-hearsay allegations, their statement of readiness was valid, and only 76 days of chargeable time have accrued.

In determining this motion, the Court read and considered the following:

Defendant's Notice of Motion, dated November 7, 2025, with the accompanying Affirmation of Alissa K Strauss, Esq., Memorandum of Law, and Exhibits (including the accusatory instrument with accompanying supporting depositions and order of protection, and the People's COC and SOR dated October 10, 2025);

ADA Michael Levin's Affirmation in Opposition, dated December 1, 2025, and accompanying Memorandum of Law; and

Reply Affirmation of Alisa K. Strauss, dated December 11, 2025, and accompanying affirmation.

As set forth in the following findings of fact and conclusions of law, the Court determines that the second-degree Criminal Contempt charge is not supported by sufficient non-hearsay allegations. Since the defect is subject to cure within the time permitted by CPL § 30.30, pursuant to CPL § 175.30(1)(a), the Criminal Contempt in the Second Degree accusatory instrument is deemed a misdemeanor criminal complaint, not an information. Defendant's motion to dismiss based on an alleged violation of CPL § 30.30 is DENIED.

FINGINGS OF FACT

Defendant was charged with Criminal Contempt in the Second Degree (Penal Law § 215.50 (3) — a Class A Misdemeanor) and Trespass (Penal Law § 140.05 — a violation). He was arraigned on the accusatory instruments on June 11, 2025 and pled not guilty. The People filed two accusatory instruments, one for each charge. Defendant only contests the facial sufficiency of the second-degree Criminal Contempt accusatory instrument. That instrument is signed by PO Kressevich, who averred that on June 10, 2025 at approximately 7:49 p.m., at 41 E. Post Road in the City of White Plains, the defendant, Henry Rosario, "did intentionally disobey a lawful court ordered Temporary order of Protection (sic) issued by the Honorable Desmond C Lyons of the Irvington Village Court (Order #25-000009) in which the above defendant was ordered to stay away from the victim ([W.M.P.]). The above defendant did violate said order when he entered the victim's hospital room." The accusatory instrument further states: "The above allegations of fact are made by the complainant herein on direct knowledge (and upon information and belief), with the sources of complainant's information and the grounds for his belief being Police Investigation."

The accusatory instrument was accompanied by a copy of the order of protection (which indicates it was signed by defendant and served on him in court) and two supporting depositions by Omar Santana. As relevant to the Criminal Contempt charge, Mr. Santana averred that he is a Security Sergeant at White Plains Hospital and was working as such on June 10, 2025. He stated that he

received a 'ping' on the Facial Recognition software coming from the 6th floor Labor and Delivery area. It recognized a male known to me as Henry Rosario (11/06/1998) as having entered the hospital and remaining of the 6th floor. I recognized Rosario as someone who was banned from the hospital at this time. I responded to the 6th floor and met with clinical staff.

They stated that [W.M.P.] was admitted to the 6th floor as of 1630 hours and that Rosario arrived shortly after. They stated that they were unaware that Rosario was not supposed to be here.

(Santana Deposition, dated June 10, 2025). Mr. Santana did not identify the individuals who told him that defendant was in the room with [W.M.P.], nor are any other supporting depositions attached to the accusatory instrument. Although he states he saw defendant on the 6th floor, Mr. Santana does not allege that he saw defendant with [W.M.P.] or in [W.M.P.'s] hospital room.

After defendant's arraignment, the People requested an adjournment to June 17, 2025. They requested additional adjournments to July 15, 2025 and August 5, 2025. On August 5, the People requested an adjournment to August 12, 2025. Defense counsel, however, sought an extended adjournment to September 9, 2025, which the Court granted. Defense counsel sought another adjournment on September 9, 2025 to September 30, 2025. On September 30, 2025, the People requested an adjournment to October 14, 2025.

On October 14, 2025, the People filed with the court and served on defendant a certificate of compliance with their discovery obligations ("COC") and statement of readiness ("SOR"), which was dated October 10, 2025. In conformity with CPL § 30.30(5-a), the SOR included a certification that "all counts charged in the accusatory instrument meet the requirements of CPL 100.15 and 100.40 and those counts not meeting [those] requirements have been dismissed." See People's COC and SOR, dated October 10, 2025. Defense counsel requested an adjournment to November 18, 2025. On November 7, 2025, defense counsel filed the instant motion to dismiss.

CONCLUSIONS OF LAW

Facial Sufficiency Claim

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 People v Dreyden, 15 NY3d 100, 103 (2010)("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.

Notably, a facial sufficiency evaluation is just that—it relies entirely on the "face" of the instrument. The Court is not permitted to consider any information outside of the "four corners" of the document and its supporting depositions. People v Slade, 37 NY3d 127, 140-41 (2025); People v Thomas, 4 NY3d 143, 146 (2005); Casey, 95 NY2d at 361. This rule also applies when determining whether an allegation in an accusatory instrument is hearsay. Slade, 37 NY3d at 137 ("[w]hether the allegation of an element of an offense is hearsay, rendering the information defective, is to be determined on a facial reading of the accusatory instrument") (quoting Casey, 95 NY2d at 361).

A facially sufficient accusatory instrument charging Criminal Contempt in the Second Degree must set forth non-hearsay allegations providing probable cause to believe: (1) there was a clearly expressed lawful court order in effect; (2) defendant had knowledge of its provisions; and (3) defendant intentionally disobeyed it. Penal Law § 215.50(3). In this matter, the order of protection issued by Judge Lyons was appended to the accusatory instrument, establishing the existence of the order, its clarity, and that defendant was informed of its provisions and served with a copy in court when it was issued. Indeed, defendant does not challenge the first two elements.

The final element is what the parties contest. Defendant argues that neither PO Kressevich nor Mr. Santana alleged that they saw defendant in the hospital room with [W.M.P.], who was the subject of the protective order. Instead, Mr. Santana states that he was told about it by clinical staff. The People respond by alleging in their affirmation that PO Kressevich personally observed defendant in the room. The problem, however, is that PO Kressevich's affirmation does not make that clear. Instead, PO Kressevich sets forth allegations that he states are based on "personal knowledge" or "information and belief." He alleges that defendant "did intentionally disobey a lawful court ordered Temporary order of Protection (sic) issued by the Honorable Desmond C Lyons of the Irvington Village Court (Order #25-000009) in which the above defendant was ordered to stay away from the victim ([W.M.P.]). The above defendant did violate said order when he entered the victims (sic) hospital room," but does not indicate which allegations are his personal knowledge and which are dependent on information from his "Police Investigation." We now know that PO Kressevich personally observed defendant in [W.M.P.'s] hospital room, but that is due to representations in ADA Levin's affirmation, not a facial reading of the accusatory instrument. The Court cannot rely on information outside of the "four corners" of the accusatory instrument to determine whether an allegation is hearsay. Matter of Rodney J., 83 NY2d 503, 507 (1994) (where annexed ballistics lab did not contain signature of the individual who conducted the test, just a certification that it was an accurate copy, court could not rely on People's representation that the individual who signed the certification was also the individual who conducted the test). If it is ambiguous—as it is here—then the accusatory instrument is not supported by non-hearsay allegations. See Casey, 95 NY2d at 361 (finding that a claim of facial insufficiency based on hearsay would exist where "it cannot be determined based upon the face of the information whether the pleading is in compliance with CPL 100.40[1][c]" because it was unclear if the officer's allegation was based on information from the victim, his own personal knowledge, or a review of the order of protection that was not appended to the accusatory instrument); see also Matter of Rodney J., 83 NY2d at 507 (juvenile delinquency petition was defective because "the nonhearsay nature of the annexed report is not clear on its face").

Since the accusatory instrument fails to provide non-hearsay allegations supporting each element of Criminal Contempt in the Second Degree and defendant's commission thereof, that accusatory instrument is not a facially sufficient information. It remains a misdemeanor complaint. As set forth below, since the People are still within their statutorily permissible time to be ready for trial, the defect may be cured. Dismissal of the second-degree Criminal Contempt charge is not warranted at this time.

Speedy Trial Claim

Defendant also moves to dismiss the accusatory instruments on speedy trial grounds. Defendant contends that because the People could not be ready on a facially insufficient accusatory instrument, the People's statement of readiness on October 14, 2025 was invalid, and all time since the commencement of the action is chargeable to the People. The People maintain the validity of their statement of readiness and argue additional excluded time, bringing the count to 76 days.

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 33, 349 (1980).

The parties agree that this criminal action commenced on June 11, 2025, and that the People requested adjournments up through August 5, 2025 without stating ready for trial. There are therefore 55 days chargeable to the People for this time period. See People v Stiles, 70 NY2d 765, 767 (1987).

On August 5, 2025, the People were not ready and requested an adjournment to August 12, 2025. Defense counsel, however, required a longer adjournment and requested September 9, 2025. The Court granted that adjournment. The People are charged with the seven-day adjournment that they requested. The extra time sought by defense counsel 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 People's readiness status. People v Galante, 78 Misc 3d 31, 33 (App Term, 9th & 10th Jud Dists 2023).

On September 9, 2025, defense counsel requested an adjournment to September 30. This time is also excluded from the CPL § 30.30 calculations as a delay attributable to defendant's request. See CPL § 30.30(4)(b); Barden, 27 NY3d at 555; Galante, 78 Misc 3d at 33.

The People are charged 14 days from September 30, 2025 to October 14, 2025 because they were not ready for trial and requested the adjournment.

On October 14, 2025, the People declared their readiness for trial. Defendant requested an adjournment to November 18, 2025, rendering this time excluded regardless of the People's readiness. See CPL § 30.30(4)(b); Barden, 27 NY3d at 555; Galante, 78 Misc 3d at 33. In addition, the time since November 7, 2025, is also excluded from the CPL § 30.30 calculations as a reasonable delay attributable to motion practice. See CPL 30.30(4)(a); People v Worley, 66 NY2d 523 (1984); 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 on defendant's request or consent or 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.

In sum, only 76 days are charged to the People. Since the time in which the People are statutorily required to be ready has not elapsed, defendant's motion to dismiss on CPL § 30.30(1)(b) grounds is DENIED.

THIS DECISION CONSTITUTES THE ORDER OF THE COURT

Dated: February 13, 2026

White Plains, New York

ORDERED:

HON. MARY JO L. BLANCHARD

CITY COURT JUDGE

Mary Jo L. Blanchard, J.