The People of the State of New York, v. Victor Sumba, Defendant. (2026)

PAPERS CONSIDERED:

Defendant's Notice of Motion, Affirmations, Exhibits 1

People's Affidavit and Memorandum of Law in Opposition, Exhibits 2

Defendant's Affirmation in Reply 3

QUESTION PRESENTED

The issue before the Court is whether it should grant the People's routine request for the issuance of a bench warrant, over defense counsel's objection, where the Defendant's failure to appear was solely due to his involuntary detention and subsequent deportation. In light of the fundamental fairness considerations implicated, the Court finds that alternative options and remedies should first be explored before resorting to the issuance of a warrant. The interests of justice supports seeing this misdemeanor prosecution through, if legally permissible, which may include electronic or hybrid proceedings where appropriate.

BACKGROUND

Defendant is charged by way of information with two Penal Law ("PL") offenses: PL § 120.00(1), Assault in the Third Degree, and PL § 260.10(1), Endangering the Welfare of a Child, both class A misdemeanors. According to the allegations, on May 21, 2026, an argument ensued between the Defendant and his wife, the complainant, after she examined the contents of his cell-phone. It is alleged that the Defendant slapped the complainant on the left side of her face, whereupon the complainant grabbed a lamp and struck the Defendant with it, all in the presence of the parties' minor child. The Defendant was arrested and arraigned later that same day, at which time he was released on his own recognizance and a temporary order of protection was issued. The order directed him to stay away from the complainant and to have no contact or communication with her.

On May 29, 2026, defense counsel notified the People that the Defendant had been detained by Immigration and Customs Enforcement ("ICE") the prior evening while reporting to his second job, and that he was being held in federal custody.¹ On June 8, 2026, when this case appeared on the Court's calendar, the People indicated their investigation into this domestic matter was ongoing. There was not yet any offer and they were not ready for trial. The case was adjourned until July 6, 2026, on "People's time," for the People to pursue a writ seeking the Defendant's production from federal custody, for the People to comply with their discovery obligations, and for the People to investigate whether an offer would be forthcoming. Before those efforts could be undertaken, the Defendant was deported to Ecuador on June 22, 2026.

On July 6, 2026, when the Defendant did not appear in court, the People requested that the undersigned issue a bench warrant. Defense counsel opposed the request and the Court granted leave for the instant motion to be filed. The Defendant now seeks denial of the People's warrant application, seeks dismissal of the matter in the interests of justice, and seeks vacatur of the temporary order of protection issued at arraignment. The People oppose the application.

ARGUMENTS

The defense contends that the Defendant has neither absconded nor willfully evaded the Court's jurisdiction. Rather, counsel argues that the Defendant's nonappearance is the direct result of federal action beyond the Defendant's control. The defense maintains that issuing a bench warrant under these circumstances would amount to an unfair punitive measure, particularly given the potentially severe immigration consequences, namely that a warrant may impede any future lawful return to the United States. Counsel further asserts that the Defendant wants to appear and wants to resolve this pending case, but his deportation by the government prevents him from physically appearing to do so.

The defense also urges dismissal in the interests of justice, describing the incident as an isolated domestic dispute with no serious injuries . He asserts that if any party was injured, it was the Defendant. Counsel emphasizes the defendant's longstanding construction employment, his role as the primary provider for his family, which includes an autistic child, and the significant hardship caused by his sudden removal. The defense argues that this prosecution serves no meaningful purpose and that the Defendant being barred from participating undermines public confidence in the justice system. The defense maintains that the Defendant poses no threat to the community and is unable to re-offend. He further claims that the temporary order of protection no longer serves any legitimate function. Counsel maintains that at this point the order serves only to impede the Defendant's ability to communicate with his children who are struggling with his abrupt absence. Furthermore, the defense argues that the complainant does not wish to pursue the charges and does not want an order of protection. Counsel further notes that no discovery has been provided to him by the People despite repeated requests.

In opposition, the People argue that the Defendant's nonappearance in Court was "willful," based on their claim that he knowingly reentered the United States despite being inadmissible. They argue, that because of his immigration status, Defendant placed himself in the situation he now finds himself. The People maintain that issuance of a bench warrant is the appropriate procedural response under these circumstances.

The People also oppose dismissal in the interests of justice, emphasizing that such relief is reserved for rare and extraordinary cases. They assert that the instant charges are serious, that the complainant appears in "clear distress" on the 911 recording, and that she references prior incidents with the Defendant on body worn camera footage. The People further highlight a prior misdemeanor conviction from 2014 and contend that a sentence here is necessary to ensure accountability. The People argue that in this case public confidence in the justice system requires prosecution, rehabilitation, and acknowledgment of wrongdoing, not dismissal. Finally, the People oppose vacatur of the temporary order of protection, asserting that it remains necessary to protect the complainant in the event the Defendant returns to the United States. While they do not detail the complainant's expressed wishes, they state only that "[t]he victim is aware of the posture of the case at this point in time. She is cooperative in communicating with the prosecution but is aware of the instant motion and the ultimate decision being left to the Court."²

DISCUSSION

The Court recognizes the inherent unfairness of imposing a consequence ordinarily reserved for defendants who willfully fail to appear. This Defendant wants to appear but is prohibited from doing so by the government. By all accounts, including an "affirmation" executed by the Defendant in Ecuador, the Defendant remains in regular contact with his attorney and is actively seeking to defend against these charges to bring this matter to resolution.

The Court is mindful of its obligation to promote fairness and to ensure that justice is served. It is undisputed that the Defendant is currently in Ecuador and cannot physically return to answer these charges. Accordingly, adjourning the case indefinitely in the hopes of securing his appearance would serve little practical purpose. Allowing the matter to remain pending without progress is likewise undesirable- both for a Defendant who denies the allegations, and for a victim who has an interest in seeing the case adjudicated, and, if appropriate, Defendant held accountable. The need for legal resolution and finality is especially significant in domestic violence matters where the consequences can have lasting impacts on the entire family.

While recognizing its limited ability to enforce orders or to impose punishment on a Defendant located outside its jurisdiction, it may be feasible to proceed with this prosecution in a manner that advances the interests of all parties. The integrity of the criminal process is best served when allegations are addressed and adjudicated in accordance with established legal principles, even where a defendant cannot be physically present. In this misdemeanor prosecution, it remains unknown what offer, if any, may be extended, and whether such offer would be accepted by Defendant to resolve the case.

Accordingly, under the facts and circumstances presented here, there may be an alternate option for the parties to consider. Criminal Procedure Law ("CPL") § 182.20 provides that "the court, in its discretion, may dispense with the physical appearance of any party, including that of the defendant or any witness, and proceed by means of an electronic appearance (a) at plea, sentence, or evidentiary hearing where the defendant, after consultation with counsel or a legal advisor, if any, and the prosecutor consent on the record to conducting such proceeding by electronic appearance."

Moreover, under CPL § 182.20(c), upon the request of either party, the Court may conduct other proceedings electronically, including conferences and oral arguments, without the consent of both sides, provided the Court finds good cause to proceed in that manner.

Effective January 5, 2026, Rule § 200.9-a of the Uniform Rules for the New York State Trial Courts authorizes the use of electronic appearances through a "hybrid proceeding," defined as a proceeding in which one or more participants appear electronically while the judge, or at least one party or counsel, remains physically present in the courtroom. The Court has found no limitation or restriction on the Defendant's geographic location for purposes of participating electronically.

At present, the Court is unaware of the parties' respective positions regarding the possible use of an electronic appearance, whether it be for the Defendant to accept an agreed upon disposition, to address the temporary order of protection, or for any other permissible purpose. Accordingly, because the availability of this option may render all or some of the issues raised in this motion moot, it is

ORDERED, that the parties shall confer prior to the next court date of November 4, 2026, to determine whether either side intends to request or to consent to an electronic appearance and, if so, for what specific purpose. Should the Court determine at that time that an electronic appearance is appropriate, a future date and time for said appearance will be set.

In the alternative, if no electronic proceeding is pursued, the Court will proceed to decide the instant motion and address the request for a dismissal in the interests of justice. The Court is mindful that "[a] court's discretionary power to dismiss in the interest of justice may be exercised 'only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations.' " People v. Khan, 15 Misc 3d 1131(A), 2007 WL 1327176 [Crim. Ct., NY County 2007] quoting People v. Harmon, 181 AD2d 34, 36, 586 N.Y.S.2d 922 [1st Dept. 1992].

Pursuant to CPL § 170.40(1), an information may be dismissed in the interests of justice "if required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." In considering same, the Court must consider, individually and collectively, the following:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of dismissal on the safety and welfare of the community;

(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

While a Defendant's request for dismissal in the interests of justice may be appropriate under circumstances such as these, it remains a drastic remedy that the Court must approach with caution.³ Before addressing that request, if necessary, the Court will permit the parties to supplement their submissions. The parties' respective positions on proceeding electronically may bear directly upon the relevant statutory factors and the Court's ultimate determination. Any ruling on a motion to dismiss in the interests of justice must be founded upon fully deliberated considerations, affording both sides an opportunity to be heard (People v. Stern, 83 Misc 2d 935 (Crim. Ct., NY County, 1975).

The Court further notes that the People rely upon the contents of a 911 call and body worn camera footage in opposing dismissal, asserting that these materials are relevant to both evidence of guilt (CPL § 170.40(1)(c)) and to extent of harm (CPL § 170.40(1)(b)). Yet, defense counsel states in his moving papers that "[d]iscovery has not been provided despite requests, including requests for body-camera footage that may corroborate Mr. Subma's account." While it seems the defense may have been provided with discovery since the filing of his motion, it would be unjust to render a decision without ensuring the defense is in receipt of all discovery relied upon by the People, along with an opportunity to respond. Therefore, it is

ORDERED, that to the extent the People have not already done so, they are directed to provide the defense with any and all discovery in their possession and control in accordance with their statutory obligations.

The Court will address the need for and/or scheduling of supplemental submissions at the next scheduled court appearance.

This constitutes the decision and order of this Court.

SO ORDERED.

HON. JACLENE AGAZARIAN

District Court Judge

Dated: October 14, 2026

FOOTNOTES

1.   As defense counsel notes, a cooperation agreement between Nassau County and ICE was in effect at that time.

2.   The defense asks the Court to consider this "careful" and "vague" language, noting that the prosecution never actually discloses the complainant's wishes or position. In fact, defense counsel maintains that the complainant has expressly informed the People, on more than one occasion, that she does not wish to proceed with the charges and that she does not want any order of protection. In his reply, counsel attaches a purported written statement from the complainant indicating same.

3.   Notably, an order of dismissal can be made upon motion of the people, the Defendant, or the Court itself (CPL § 170.40(2)).

Jaclene Agazarian, J.