PEOPLE v. ZORDAN (2026)

The defense moves to dismiss the declaration of delinquency (DOD) and terminate the violation of conditional discharge (VOCD) proceedings on the ground that the court failed to provide the defendant with formal notice of the alleged violations, as required by CPL § 410.70 and the due process guarantees of the United States and New York Constitutions. In opposition, the People contend that the defendant received adequate notice of the alleged violations. Specifically, they assert that (1) the DOD itself satisfies the notice requirements of CPL § 410.70 (2); (2) the defendant received oral notice of the allegations throughout the proceedings; and (3) defense counsel received written notice of the allegations by October 2025, approximately eight months after the DOD was filed.

The court previously granted the motion orally and now writes to explain its decision.

I. Relevant Facts & Procedural History

On June 13, 2024, the defendant was found guilty at trial of driving while intoxicated (VTL 1192 [3]) and resisting arrest (PL 205.30). On August 14, 2024, she was sentenced to a one-year conditional discharge, the conditions of which included, among other things, paying a $500 fine and $395 in surcharges, installing an ignition interlock device (IID) in any car she owned or operated, and complying with various rules related to the use and maintenance of the IID. The court provided the defendant with a written copy of the conditions of sentence (hereinafter “the CD form”), which she signed to acknowledge receipt. The case was then adjourned for compliance updates.

On February 10, 2025, Dorota Marchelewicz, the New York City IID Program Monitor (hereinafter “the citywide monitor”), submitted a report notifying the court and the People of an IID violation. The report alleges that the defendant failed to appear for a monthly service visit, although it does not specify the date of the missed appointment. It further alleges that, on February 8, 2025, the defendant failed a start-up test and failed to complete a retest. The report recommends that the defendant be “arraign[ed] as [a] violator” and provides for judicial approval through a “so ordered” checkbox and a signature line. Neither was completed.

On February 11, 2025, defense counsel Jacob Uriel appeared on behalf of the defendant. The defendant was not present due to a medical procedure. The People stated that the defendant “has a VOCD” and asked that the court adjourn the case “for ․ VOCD” (tr of Feb. 11, 2025, at 4). The presiding judge reviewed the court file and located the citywide monitor's report (see id.). Noting that the report was dated February 10, 2025, the court stated that “the defendant failed a startup test and missed the retest; and also failed for the monthly service” (id.). During the appearance, defense counsel was not provided with a copy of the report. The court suggested that counsel “reach out to the assigned to get a copy” (id. at 4-5). The court then directed the People to “make their record” so the defense would “be formally on notice,” but the prosecutor responded that the People did not have “any further information about the violation” (id. at 5). The matter was adjourned to March 11, 2025, for a VOCD hearing.

On that same date, off the record, the court signed the pre-printed declaration of delinquency (DOD) appearing at the bottom of the CD form. The DOD recites that it was issued “on the basis of the attached information,” but no information is attached. Nor does the DOD identify the factual basis for the declaration. The court action sheet for February 11, 2025, indicates that the DOD was issued “in light of IID violation.” Neither the DOD nor the court action sheet reference the citywide monitor's IID violation report.

On February 27, 2025, the citywide monitor submitted a second report of an IID violation to the court and People. The report alleges that the defendant failed a start-up test and two retests on February 26, 2025. The report again recommends that the defendant be arraigned as a violator. However, the recommendation was not so-ordered, and the judicial signature line was left blank.

On March 18, 2025,¹ the defendant appeared in court without counsel. The court advised the defendant that “the People have filed the Violation of Conditional Discharge” (tr of Mar. 18, 2025, at 2), though no such filing appears in the court file.² The People then orally summarized the alleged IID violations contained in the citywide monitor's reports (id. at 3). The court also noted that the defendant had not paid her fine and surcharges in full and that an outstanding balance of $945 remained (id. at 4). The court relieved the defendant's attorney, Jeffrey Chabrowe, based on his written request to withdraw, and advised the defendant that she “need[ed] to hire counsel” (id. at 4). The defendant stated that she had court-appointed counsel for her appeal and could not “afford ․ another attorney” (id. at 5-6). The court did not assign counsel (see id.). Nothing in the record indicates that the defendant was provided with copies of the citywide monitor's reports, the DOD, or any other paperwork relating to alleged violations of her sentence. The court adjourned the case to April 22, 2025, for a VOCD hearing.

On April 15, 2025, the citywide monitor submitted a third report of an IID violation to the court and the People. The report alleges that on April 11, 2025, the defendant failed a start-up test, and a different person completed the retest. It further alleges that on April 12, 2025, the defendant failed both a start-up test and retest. As with the prior notices, the recommendation that the defendant be arraigned as a violator was never so ordered, and the judicial signature line was left blank.

On April 22, 2025, the defendant failed to appear in court, and no attorney appeared to represent her. The court issued a bench warrant.

On June 16, 2025, the citywide monitor submitted a fourth report of an IID violation to the court and the People. The report alleges that on June 14, 2025, the defendant failed both start-up tests and retests. The report also alleges that the defendant's face was not visible in photographs captured by the IID while breath samples were being provided. Like the prior notices, it recommends that the defendant be arraigned as a violator. However, the recommendation was never so ordered, and the judicial signature line was left blank.

On June 23, 2025, the citywide monitor submitted a fifth report of an IID violation to the court and the People. The report alleges that on June 21, 2025, the defendant failed a start-up test and repeatedly leaned away from the IID camera, preventing it from capturing images of the person providing the breath samples. Like the prior reports, it recommends that the defendant be arraigned as a violator. However, the recommendation was never so ordered, and the judicial signature line was left blank.

On August 4, 2025, the defendant appeared in court, the bench warrant was vacated, and attorney Jeffrey Linehan was assigned to represent her. The presiding judge stated that there were “IID violations ․ from back in February” (tr of Aug. 4, 2025, at 3). When Mr. Linehan responded that he “was not clear on exactly what the violation was” (id.), the court responded that it involved “[b]lowing [in the IID] with alcohol” (id.). Counsel then stated that “[i]t appeared that the nonpayment of fines was the issue,” and the court indicated that it was “the second issue” (id.). The People added that “there were violations in February, and then new violations on April 11th and April 12th,” but made no mention of the alleged June violations (see id.). Nothing in the record indicates that defense counsel was provided with copies of the monitor's notices, the DOD, or any other written notice of the alleged violations. The court stated that “[t]he IID requirement is extended until the next court date,” and adjourned the case to September 12, 2025, for a “VOCD update” (id. at 4).

On that same date, the court signed a new CD form. The form states that the defendant “is sentenced by the Court to a ONE YEAR Conditional Discharge, to expire on 8-3-26.”³ The form contained substantially the same conditions as the original CD form, except that it did not reflect an IID requirement. A notation on the form indicates that the defendant was “served” with a copy of the CD form “at [the] rail.”

On September 12, 2025, Mr. Linehan appeared on the defendant's behalf and explained that she was absent due to illness. He then requested to be relieved as counsel, and the court assigned Gideon Oliver to represent the defendant. The case was then adjourned to October 7, 2025, for VOCD proceedings.

On October 7, 2025, the defendant appeared virtually, represented by Mr. Oliver. The People stated that they “sent all the documents related to this to Mr. Oliver on Friday,” although the record does not identify which documents were provided (tr of Oct. 7, 2025, at 3).⁴ The presiding judge noted that the defendant “still owes $945 on the fine and the mandatory surcharge of $395” (id.). The court then asked, “[w]hat is the VOCD for; do we know what the allegation was?” (id. at 4). The People responded that “[t]here are several violations on four separate dates, there's at least 10 violations” (id.). The court indicated that this description was sufficient for purposes of the appearance and adjourned the matter to November 18, 2025, for a VOCD hearing (id.).

On October 14, 2025, the citywide monitor submitted another report of an IID violation to the court and People. The report alleges that on October 14, 2025, the defendant failed start-up tests and retests. Like the prior reports, it recommends that the defendant be arraigned as a violator. However, the recommendation was never so ordered, and the judicial signature line was left blank.

On October 30, 2025, someone signed the pre-printed DOD form appearing at the bottom of the second CD form, which had been executed on August 4, 2025. As with the earlier DOD, the form recites that it was issued on the basis of attached information, but no information is attached. Nor does the DOD identify the factual basis for the declaration. The matter was not called on the record, and the case file contains no notation indicating what information, if any, was before the issuing court. The signature on the DOD form is also illegible.

On November 18, 2025, the defendant appeared in court. Current defense counsel filed a notice of appearance, and Mr. Oliver was relieved. The People stated that there were “ten separate violations” and identified violations from February and April 2025. They further asserted that the defendant “warrant[ed] and got two new violations,” but they did not specify the dates or nature of those alleged violations (tr of Nov. 18, 2025, at 3). Nor did they mention the alleged October 2025 violations (see id.). Nothing in the record indicates that the court provided the defense with copies of the monitor's reports or any other written notice of the alleged violations. The matter was then adjourned to January 27, 2026.

On January 27, 2026, the defendant was unable to appear in court because of a snowstorm, and the court adjourned the matter to March 3, 2026. When the defendant failed to appear on March 3, 2026, the court issued a bench warrant. On March 4, 2026, the defendant appeared in court, the bench warrant was vacated, and the matter was adjourned to April 2, 2026.

On March 27, 2026, the defense subpoenaed records from the citywide monitor, and on March 31, 2026, in response to that subpoena, the monitor provided records to the defense.

On April 2, 2026, defense counsel filed the present motion to dismiss. The People filed their opposition on April 27, 2026.

II. Discussion

The procedure for revoking a conditional discharge is governed by Article 410 (CPL §§ 410.30—410.70). A violation of a conditional discharge (VOCD) proceeding begins with the filing of a written declaration of delinquency (DOD) (CPL 410.30). Before filing a DOD, the court must have “reasonable cause to believe that the defendant has violated a condition of the sentence” (id.). Even where reasonable cause exists, the decision to file a DOD is in the court's discretion (see id. [with reasonable cause, the court “may declare the defendant delinquent and file a written [DOD]”] [emphasis added]). Once a DOD is filed, the court “must promptly take reasonable and appropriate action to cause the defendant to appear” for a hearing (CPL 410.30). This typically means issuing a notice to appear (CPL 410.40 [1]) or a bench warrant (CPL 410.40 [2]). The filing of a valid DOD tolls the sentence from the date of the delinquency until final adjudication of the alleged violation (PL 65.15 [2]), and after a DOD is filed, the court is authorized to set bail or remand the defendant pending a final hearing (CPL 410.60).

At or before the defendant's first appearance on the DOD, the court must also file, or cause to be filed, a written statement “setting forth the condition or conditions of the sentence violated and a reasonable description of the time, place and manner in which the violation occurred” (see CPL 410.70 [2]). The statement functions as an accusatory instrument charging the defendant with violating their sentence. Indeed, a statement that fails to specify the time, place, and manner of the alleged violation is facially insufficient and subject to dismissal (People v Kislowski, 30 NY2d 1006, 1007 [2017]).⁵ At the defendant's initial appearance on the DOD, the court must also conduct a procedure analogous to an arraignment. The court must advise the defendant of the contents of the CPL § 410.70 (2) statement, furnish the defendant with a copy, and ask the defendant whether they wish to respond to the allegations contained therein (id.).

The requirement of written notice is also rooted in due process. Before a person's sentence may be revoked, due process requires “written notice of the claimed violations” (Gagnon v Scarpelli, 411 US 778, 786 [1973]). Written notice serves to inform the accused of the charges and permit the preparation of a defense (see Wolff v McDonnell, 418 US 539, 564 [1974] [in prison disciplinary hearing, due process requires “that written notice of the charges must be given to the [ ] defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense”] [emphasis added]). Accordingly, oral notice alone — which is often informal, imprecise, and impermanent — cannot satisfy the statutory command of CPL § 410.70 (2) or the constitutional due process requirements.

The statute is not entirely clear regarding the interplay of the DOD and the CPL § 410.70 (2) statement. While they are discussed in separate statutory provisions, some courts have treated them as synonymous and have thus assumed that the DOD itself must describe the “time, place and manner” of the violation on which it is based (see People v Mayerat, 188 AD3d 1667, 1667 [4th Dept 2020] [“the declaration of delinquency comported with the statutory requirement of providing defendant with the time, place, and manner of the alleged violations (CPL 410.70)”] [alterations omitted]; People v Daniels, 106 AD3d 1189, 1190 [3rd Dept 2013] [“once the court files a declaration of delinquency ․ the court must advise him or her of the contents of the statement”]). While not clear from the statute, that interpretation makes practical sense. Absent a contemporaneous identification of the alleged violation underlying the DOD, a reviewing court cannot assess whether the declaration was supported by reasonable cause,⁶ and violations ultimately litigated may differ from those that gave rise to the declaration.

However, this court need not decide whether CPL § 410.70 (2) requires that the written statement be incorporated into the DOD itself. It is sufficient to hold that the statement must be filed at or before the defendant's initial appearance following the filing of a DOD, and that the failure to do so may render the DOD ineffective. The statute clearly assumes that the statement will be filed prior to the defendant's first appearance (see CPL 410.70 [2]), and that assumption is best read as a statutory mandate (see People v Horvath, 37 AD3d 33, 37 [2d Dept 2006] [holding that interpretation of Article 410 “must be informed by ․ basic due process requirement[s]”]). A DOD is a powerful judicial mechanism that can toll a sentence (PL 65.15) and authorize the court to set bail or remand a defendant pending a final hearing (CPL 410.60). It would raise serious constitutional concerns to permit those consequences to attach before the defendant receives the written notice of the alleged violations that CPL § 410.70 (2) requires. Article 410 repeatedly emphasizes the need for prompt proceedings. Specifically, it requires the court to take “prompt” action following the filing of a DOD (CPL 410.30), and it entitles the defendant to a “prompt hearing” on the alleged violation (CPL 410.70 [1]). (See also Horvath, 37 AD3d at 36-37). Consistent with that emphasis, the Court of Appeals recently observed that, under Article 410, “any toll ․ is meant to be brief” (see People v Curry, ––– N.E.3d ––––, ––––, 2026 WL 738978, at *3 [2026]). Given the imperative for promptness and the statutory and constitutional importance of the CPL § 410.70 (2) statement, this court concludes that a DOD is ineffective to toll a defendant's conditional discharge period where the notice requirements of CPL § 410.70 (2) are not timely satisfied.

On the specific facts of this case, the record does not reflect that a CPL § 410.70 (2) statement was filed and furnished to the defendant at her initial appearance on the DOD, or for several months thereafter. Under these circumstances, the DOD was ineffective to toll the defendant's conditional discharge period. After an extensive review of the record, the court finds no indication that the procedures prescribed by CPL 410.70 (2) were ever followed. In particular, the record does not reflect that a written statement identifying the alleged violations was filed, that the defendant was advised of the contents of such a statement, or that she was furnished with a copy. Though the defendant was not present in court on February 11, 2025, when the DOD was filed, no CPL § 410.70 (2) statement was filed or provided to her attorney. Nor was any such statement filed and provided to the defendant when she next appeared on March 18, 2025, or at subsequent court appearances. Under these circumstances, the February 11, 2025 DOD was ineffective to toll the defendant's conditional discharge period. The defendant's sentence therefore expired on August 13, 2025,⁷ and the court lacks authority to proceed on the alleged violations.

The People's opposition rests on the premise that the defendant nevertheless received adequate notice of the alleged violations. Specifically, the People point to: (1) the February 11, 2025 DOD; (2) oral advisements during the proceedings; and (3) the reports submitted by the citywide monitor. As discussed below, none of these purported sources of notice satisfied the requirements of CPL § 410.70 (2) or due process (CPL 410.70 [2]; US Const, 14th Amend; NY Const, art I, § 6).

First, the DOD issued on February 11, 2025, did not satisfy the requirement of written notice for several reasons. Most fundamentally, the DOD did not contain “a reasonable description of the time, place and manner in which the violation occurred” (CPL 410.70 [2]). Indeed, the DOD contained no description whatsoever of the conduct underlying the alleged violations. Nor was the defendant provided with a copy of the DOD, advised of its contents, or afforded an opportunity to respond to it. The DOD therefore did not provide the notice required by CPL § 410.70 (2) or the Due Process Clauses of the United States and New York Constitutions.

Second, the oral advisements of alleged violations did not satisfy the notice requirement. CPL § 410.70(2) requires written notice, not merely oral recitations of the allegations (see CPL 410.70 [2]), as does due process (Wolff, 418 US at 564; Gagnon, 411 US at 786). Even if oral notice could suffice, the oral notice in this case was incomplete and inconsistent. On February 11, 2025, the court asked the People to make a record so that the defense would “be formally on notice” (tr of Feb. 11, 2025, at 5), but the People did not “have any further information about the violation,” only that there was a violation (see id.). On August 4, 2025, the People referred to alleged violations from February and April 2025 but failed to mention the alleged June 2025 violations. Moreover, the record reflects some inconsistency regarding the amount of defendant's outstanding fines and surcharges. Next, while the People repeatedly referenced the defendant's prior failure to appear and the resulting bench warrant, neither the People nor the court ever made clear whether that conduct was itself alleged to constitute a violation of the conditional discharge. The oral discussions throughout the proceedings identified some alleged violations but never provided a comprehensive statement of the allegations, making it difficult to determine precisely which allegations the defendant was expected to defend against.

Finally, the reports of IID violations submitted by the citywide monitor did not satisfy CPL § 410.70 (2). Nothing in the court file or the transcripts indicates that the defendant was ever furnished with copies of these reports as required by CPL 410.70 [2]. Nor was the procedure prescribed by CPL 410.70 (2) followed. The defendant was not advised of the contents of a written statement, furnished with a copy of such a statement, or afforded an opportunity to respond to the allegations (see id.). In short, the reports were not treated as the operative charging instruments in these proceedings.

In fact, the defendant would have had no reason to believe that the citywide monitor's reports were charging instruments. They are captioned as “notifications to [the] court and District Attorney,” and they merely “recommend” that the court “arraign[ ] [the defendant] as [a] violator.” Each report further provides for judicial approval through a “so ordered” designation and signature line. In this case, however, none of the reports were so ordered or signed. Without the court endorsing the reports and presenting them to the defense as charging instruments, the reports have no legal effect. The citywide monitor has no authority to prosecute sentence violations. The monitor's role is merely to monitor compliance with IID requirements and to “notify the appropriate court and District Attorney” upon receiving reports of violations (9 NYCRR § 358.7 [d] [2]). The monitor's allegations may provide reasonable cause to believe the defendant violated her sentence, but they do not themselves constitute charges in a VOCD proceeding (see Curry, ––– NE3d at ––––, 2026 WL 738978, at *2 [noting that a sentence violation “does not necessarily lead” to a violation proceeding]). The decision whether to commence a VOCD proceeding and what violations to charge rests with the court, not the monitor (see CPL 410.30 [the court “may declare the defendant delinquent”] [emphasis added]; CPL 410.70 [“[t]he court must file or cause to be filed a statement” alleging a violation] [emphasis added]). Rather than being affirmatively provided to the defense, the reports were simply placed in the court file, which spans nearly four years, includes a trial, and contains hundreds of documents and numerous loose papers.⁸ CPL § 410.70 (2) requires more.

Regardless, the People do not contend that the defense received the citywide monitor's reports promptly after the DOD was filed. Instead, they rely on defense counsel's acknowledgement on October 7, 2025, that he had received what the People described as “all the documents” related to the matter a few days earlier (transcript Oct 7, 2025, 3:1-5). The People's argument that this belated production cures the violation is unpersuasive. By that point, the VOCD proceedings had been pending for nearly eight months, and this clearly was not “prompt” within the meaning of CPL § 410.70. Moreover, as explained above, the defendant's sentence had already expired. Even if this were timely, the record does not establish what documents were provided to the defense or whether those documents adequately described all of the alleged violations. Nor does the record reflect compliance with the procedures contemplated by CPL § 410.70 (2), including advising the defendant of the contents of the documents, furnishing her with a copy, or affording her an opportunity to make a statement in response to the allegations. Accordingly, any disclosure that may have occurred in October 2025 did not cure the procedural deficiencies in this case.

Finally, even if the February 11, 2025 DOD were effective to toll defendant's conditional discharge period, dismissal would still be required because the VOCD proceedings were not prosecuted promptly (see Horvath, 37 AD3d at 36-37; Curry, ––– NE3d at ––––, 2026 WL 738978 at *3 [“any toll of [a sentence] is meant to be brief”]). To be sure, much of the delay in this case is attributable to the defendant, who missed multiple court appearances, and to the repeated substitution of defense counsel. Nevertheless, those circumstances do not explain the central defect in this case. More than fourteen months after the filing of the DOD, and despite numerous court appearances, the record still does not reflect that defendant received the specific written notice required by CPL 410.70 (2) or the corresponding opportunity to respond. Though “any toll of [a revocable sentence] is meant to be brief” (Curry, ––– NE3d at ––––, 2026 WL 738978, at *3), the defendant's sentence remained in effect for almost a year past its original expiration date, during which time the defendant was not afforded the fundamental due process protections codified in CPL § 410.70 (2). Under these unique circumstances, the delay was excessive and cannot be attributed primarily to defendant. This court therefore concludes that it has “lost jurisdiction to adjudicate her in violation of” her sentence (Horvath, 37 AD3d at 39).

This court is not blind to the practical realities presented by this case. The allegations against Ms. Zordan are serious. If the citywide monitor's reports are accurate, Ms. Zordan repeatedly attempted to operate a motor vehicle after consuming alcohol, conduct that poses obvious risks to both herself and the public. The dismissal of these proceedings may therefore have consequences that are troubling from a public safety perspective.

Nevertheless, the court's obligation is to apply the law. Defendants accused of violating the conditions of a sentence are entitled to the procedural protections afforded by CPL § 410.70 (2) and the Due Process Clauses of the United States and New York Constitutions. On this record, those protections were not provided, even as her sentence was extended for a substantial period of time. The seriousness of the allegations cannot excuse that failure.

Accordingly, the motion to dismiss is GRANTED. The DOD is vacated, the VOCD proceedings are terminated, and the defendant's sentence is judged to have expired of its own force.

This constitutes the decision and order of this court.

FOOTNOTES

1.   The case was administratively adjourned from March 11, 2025, to March 18, 2025.

2.   The court file contains the DOD and the IID violation reports, but there is no document titled a “Violation of Conditional Discharge” in the court file. Further, the People did not file either the DOD or the reports.

3.   This language seems to suggest that a new sentence was imposed, though the transcript of the court appearance does not bear this out. Also, while the original CD was arguably tolled following the filing of a DOD (see PL 65.15 [2]; but see infra), to the CPL would not have authorized a new one-year conditional discharge under these circumstances (see CPL 410.70 [1], [5]).

4.   The People do not allege in their affirmation that the defendant or her counsel received any of the monitor's reports, or any other paperwork related to the alleged violations, before this date.

5.   Although Kislowski involved a violation of probation proceeding rather than a violation of a conditional discharge, that distinction is immaterial. CPL § 410.70 (2) imposes the same requirement that the defendant be provided with a written statement setting forth the alleged violations in both contexts.

6.   The purported DOD signed in this case on October 30, 2025, illustrates this point. This court cannot determine which judge signed it or what information they had before them in connection with issuing the DOD.

7.   Even assuming the DOD tolled the defendant's CD period until March 18, 2025, when she appeared personally and did not receive the notice contemplated by CPL 410.70 (2), the result would be the same. The precise duration of any tolling is therefore not material to the court's decision.

8.   If any of defendant's prior attorneys obtained the reports from the court file before October 2025, that fact is not reflected in the record before this court, and the People's affirmation does not allege that defense counsel received the reports at any earlier date. In any event, the result would not necessarily change. CPL § 410.70 (2) requires that a defendant be furnished with the written statement identifying the alleged violations. The defense cannot be required to search the court file and guess which documents, if any, constitute the operative violation statement (cf. People v McGuire, 5 NY2d 523, 526 [1959] [“It is fundamental that a person accused of crime is not required to speculate as to what crime, if any, the information charges, for he is entitled to know in advance of trial what crime he is called upon to defend”]).

Ilona B. Coleman, J.