PEOPLE v. RIVERA (2026)

In the main branches of his counseled omnibus motion, defendant B. Rivera  ¹ seeks to dismiss the accusatory instrument as both facially insufficient and on statutory C.P.L. § 30.30 speedy trial grounds, the latter by way of a challenge to the People's certificate of compliance (COC). The People respond to both challenges on the merits, but also point out that Rivera's motion was filed more than an hour after it was due, creating a potential procedural bar to the COC challenge under C.P.L. § 245.50(4)(c). Rivera concedes that his motion was delayed due to "unexpected technical issues," Defense's Reply at 3, but asks that his late filing be excused.

As explained below, Rivera's COC challenge is time-barred. He filed after the deadline; the People properly invoked untimeliness; and the otherwise-unexplained technical issues do not, on this record, provide any basis for excusing the late filing. The rest of his motion, however, is unaffected by this procedural bar—and Rivera is correct that one of the three counts in the accusatory instrument is facially insufficient. Accordingly, Rivera's motion is granted in part and denied in part, and count three (charging third-degree tampering) is dismissed. A Wade/Dunaway hearing is ordered.

I. Background

The Accusatory Instrument

Defendant Rivera was charged on January 12, 2026, with one count each of second-degree obstructing governmental administration (P.L. § 195.05(1)), petit larceny (P.L. § 155.25), and third-degree criminal tampering (P.L. § 145.14), for offenses committed "on or about November 6, 2025" at a specific address in the Bronx. Accusatory Instrument at 1. The charges arose when he allegedly absconded from parole supervision shortly after release by, among other things, failing to charge the GPS ankle monitor given to him as a condition of his supervision.

According to the accusatory instrument, Rivera was provided the ankle monitor on November 3, 2025, and was instructed to keep it charged. However, just three days later, on November 6—the "on or about" date—the ankle monitor stopped emitting a signal and no longer transmitted Rivera's location. See Accusatory Instrument at 1.

Rivera then was a no-show at a November 19 check-in appointment and home visit. He was eventually apprehended or located as of January 11. Accusatory Instrument at 1-2.

The accusatory instrument was sworn by Detective Cabreja, who generally relayed information from Parole Officer Gary. Officer Gary told Detective Cabreja that Gary was the "lawful custodian" of the ankle monitor and "did not give defendant permission or authority to possess [the monitor] without keeping it properly charged." Accusatory Instrument at 1.

Officer Gary also explained (through Detective Cabreja) that Rivera had signed a Special Conditions of Release form—the "parole form"—before his November 3 release. Accusatory Instrument at 2. That form had warned Rivera of the potential consequences of failing to charge his ankle monitor:

[Cabreja] is informed by [Gary] that [Gary] is in possession of a New York State Department of Corrections and Community Supervision Special Conditions of Release to Community Supervision agreement, with the defendant[']s signature, that states in the pertinent part, that defendant understands that he can be charged with violating PL 145.14 if the defendant fails to charge the DOCCS owned GPS device causing DOCCS staff to intervene; that defendant understands that he can be charged with violating PL 155.25 if defendant assigned to the GPS device ceases all contact with DOCCS staff and fails to return the GPS device; that defendant understands that he can be charged with violating PL 195.05 for failure to charge the DOCCS owned GPS unit, which prevents DOCCS staff from monitoring the defendant's location; and that the defendant will charge the GPS equipment twice daily for a minimum of 60 minutes each time.

Accusatory Instrument at 2. Officer Gary believed Rivera had violated this agreement. Id.

Detective Cabreja's own observations were limited to one paragraph of the accusatory instrument. On January 11, presumably right around the time of Rivera's arrest, Officer Cabreja had observed that Rivera's ankle monitor did not emit any light or noise, which (per Officer Gary) meant it was powered down. Id.

Arraignment and Supporting Deposition

Rivera was arraigned on January 12, 2026, and the matter was adjourned to February 25. The People filed Officer Gary's supporting deposition that day, but not the parole form. According to the court action sheet, the People were not deemed converted as of that day.

Certificate of Compliance and Readiness

The People submitted their COC and declared ready on March 27, around 74 days after the case had commenced. According to the attached discovery receipt, the discovery proffer included Giglio materials for Detective Cabreja, DD5s, and other discovery documents. COC at 6-7 (pdf pag.).

Discovery Objections and Intervening Court Appearances

The defense emailed discovery objections to the People on April 9, identifying copious discovery that appeared to be missing, including body-worn camera footage from November, December, and January. Defense's Mot., Ex. A at 1.

At the next appearance on April 16, the defense informed the court that the discovery objections had been submitted. According to the court's action sheet, the defense also argued that the accusatory instrument was not converted. The matter was adjourned to April 29 for a discovery conference.

During the April 29 appearance before the undersigned, the defense again raised whether the accusatory instrument had ever been converted, citing the People's failure to file the parole form with the court. After some discussion, decision on the issue was deferred; the defense was instead directed to raise the issue by motion, due to the potential dismissal implication. 4/29 Tr. at 2-5.

The defense also planned to challenge the People's COC, requesting a good-cause extension of the deadline to do so through May 15. The request was granted on the People's consent. See id. at 9. A motion schedule was set, with the defense's motion due May 15. See id.

The Defense's (Late) Motion

Rivera's counseled omnibus motion, which included the COC challenge, is dated May 15. However, its Electronic Document Delivery System header reflects a filing date of May 16 at 1:28a.m.²

II. Dismissal Arguments

In the main branches of the motion, Rivera seeks to dismiss the accusatory instrument on § 30.30 statutory speedy trial and facial insufficiency grounds.

On speedy trial, and incorporating his then-still-outstanding discovery objections,³ he contends that the People's COC is invalid, and thus could not stop the § 30.30 clock, because the People failed to turn over extensive police-generated paperwork, as well as all body-worn camera footage of his arrest. Because the COC was invalid, the speedy trial clock never stopped, so the accusatory instrument should be dismissed. See Defense's Mot. at 13-16.

Regarding facial insufficiency, he argues that the accusatory instrument "failed to allege non-hearsay facts" that would establish the intent elements of all three charges or otherwise show that he actually tampered with the ankle monitor. Defense's Mot. at 9-12. For each count, Rivera assumes that the core offense is the failure to charge the ankle monitor. See Defense's Mot. at 9.

Rivera does not directly argue that the accusatory instrument remains unconverted, or that dismissal is warranted on that ground. Instead, he contends that the People's reliance on the parole form language cannot "cure the hearsay defects in the accusatory instrument" because the form was never filed with the court, and notice of consequences alone does not show his intent to commit any of the charged offenses. Defense's Mot. at 9-13.

In responding to the COC challenge, the People raise a threshold procedural issue: Rivera's motion was not actually filed until May 16, after it was due. "As this motion has been filed without showing good cause for its late filing," the People argue, "Defendant's motion should be dismissed in its entirety because motions have been precluded in this case." People's Resp. at 11-12. The People otherwise assert that they diligently complied with their Article 245 discovery obligations, making reasonable efforts to obtain discovery and providing a robust discovery package to the defense. See People's Resp. at 21-25.

As to facial sufficiency, the People contend that each count is supported by adequate facts. Throughout their argument, the People rely on the post-November-6 conduct in support. For instance, in support of the obstructing count, the People cite the alleged November 19 failure to appear for a parole check-in. People's Resp. at 14. In the People's view, the other two counts are adequately made out because (among other things) Rivera's larcenous intent to permanently deprive DOCCS of its property can be inferred from his absconding from supervision, and "[t]he act of allowing the GPS device's battery to die constitutes 'tampering.' " People's Resp. at 13-14.

While the People rely in part on the recited language of the parole form to establish Rivera's intent, the People assert that the actual form did not need to be filed. The instrument itself is sufficient standing alone, they contend, to establish all elements of the charges. People's Resp. at 15-16.

In reply, Rivera concedes that he filed about two hours after the extended COC challenge deadline expired. He nevertheless asks for his motion to be considered on the merits, blaming the late filing on "unexpected technical issues," although he does not explain what those issues were or are. Defense's Reply at 3. Otherwise, Rivera reasserts that the People had not complied with their discovery obligations before declaring ready, and otherwise incorporates by reference the facial insufficiency arguments from his motion. See Defense's Reply at 4-8.

III. Discussion

a. Rivera's COC challenge is time-barred because it was filed one day late, and unexplained technical difficulties—not mentioned until the reply brief—do not excuse the untimely filing.4

The People are correct about the untimeliness of Rivera's motion, although they are only partially right about the consequences. Because Rivera filed after the deadline to do so expired, his COC challenge is time-barred.

Under the 2025 revisions to Article 245, a challenge to the validity of a COC must, absent an exceptions discussed below, be "addressed by motion" within 35 days of service of the COC.⁵ C.P.L. § 245.50(4)(c). A court may entertain a request to extend that 35-day deadline "for good cause shown," but only if the request is made before the 35-day period expires. Id. § 245.50(4)(c)(i). A motion filed beyond either the original or extended deadline is procedurally defective and, absent forfeiture or waiver by the People, need not be addressed on the merits. See People v. Minor, 88 Misc 3d 1227(A), 2026 NY Slip Op 50255(U), at *3-4 (N.Y.C. Crim. Ct., NY Co. 2026) (Coleman, J.); cf. People v. Seymour, 84 Misc 3d 23, 25 (App. Term, 9th & 10th Jud. Dists. 2024) (treating predecessor statute, which required challenges to be brought "as soon as practicable," as creating a procedural bar for late-filed motions).

Rivera initially sought and obtained an extension to the 35-day deadline. As he now concedes, he filed his COC challenge just after the extended deadline expired. His concession, if enforced, would be enough to settle the issue absent tolling or further extension of the deadline.

However, there might be reason here to look beyond Rivera's concession of untimeliness. See People v. Rojas, 2 Misc 3d 130(A), 2004 NY Slip Op. 50101(U), at *1 (App. Term, 1st Dept. 2004) (observing that courts can depart from erroneous legal concessions). The COC challenge deadline in a misdemeanor case applies only if the misdemeanor complaint has been converted into an information. C.P.L. § 245.50(4)(c). If the case is unconverted, there is no deadline.

Rivera initially appeared ready to challenge whether the People had met this obligation, arguing at pre-motion conferences that the failure to file the parole form meant that the accusatory instrument remained a misdemeanor complaint, and was never converted to a misdemeanor information. But despite being invited to raise the issue in his motion, Rivera did not do so—and challenges to conversion can be both affirmatively waived or forfeited through inaction. See, e.g., People v. Rivera, 36 Misc 3d 156(A), 2012 NY Slip Op. 51759(U), at *1 (App. Term, 1st Dept. 2012).

In this context, Rivera's references to "non-hearsay" allegations in the facial sufficiency section of his motion are not enough to raise the conversion issue. A counseled motion generally does not receive liberal construction of its arguments. Compare Fawer v. Shipkevich PLLC, 213 AD3d 408, 408 (1st Dept. 2023) (observing that pro se pleadings are entitled to liberal construction), with Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986) (observing that counseled papers are not). And the consequence of failing to convert is not piecemeal dismissal of individual counts on sufficiency grounds, but dismissal of the entire instrument, as the People ordinarily cannot be ready for trial in a misdemeanor case unless they have filed a misdemeanor information. See People v. Johnson-McLean, 71 Misc 3d 31, 35 (App. Term, 1st Dept. 2021).

In any event, were the waiver/forfeiture nevertheless to be set aside, this accusatory instrument would indeed be considered an information—although filing the underlying parole form would have been the "far better practice" and would eliminate significant risk of a conclusion to the contrary. People v. Casey, 95 NY2d 354, 359 (2000).⁶ A misdemeanor accusatory instrument becomes a complaint when it lacks elemental hearsay, see People v. Fernandez, 20 NY3d 44, 50 (2012), and a statement counts as hearsay only if offered for its truth, see People v. Slade, 37 NY3d 127, 140 (2021). The parole form statements, recited through Officer Gary, were not offered for their truth—whether Rivera could be charged with the articulated offenses and was actually required to charge his ankle monitor—but instead to show Rivera had been warned of the consequences of failing to charge his monitor. Statements offered for their effect on the listener are not hearsay. See People v. Caroselli, 56 AD3d 1167, 1168 (4th Dept. 2008) (addressing the effect-on-the-listener use of an out-of-court statement); United States v. Dupree, 706 F.3d 131, 137 (2d Cir. 2013) ("We have repeatedly held that a statement is not hearsay where, as here, it is offered, not for its truth, but to show that a listener was put on notice."). Therefore, the material recited from the parole form did not prevent conversion, even without the parole form itself. The accusatory instrument thus became an information when the supporting deposition was filed. See C.P.L. § 170.65(1).

Since the case was timely converted, the subsequent filing of the COC triggered the various deadlines of § 245.50(4)(c). The original deadline to challenge the COC was extended, at the defense's request and with the People's consent, to May 15. That extended good-cause deadline remained binding on the defense. See Minor, 2026 NY Slip Op 50255(U), at *3-4 (explaining that COC-challenge deadlines extended under § 245.50(4)(c)(i) are still deadlines).

Despite picking that extension date himself, however, Rivera filed late—true, just an hour and a half beyond the deadline, but late nonetheless. As a result, his challenge is time-barred. See Seymour, 84 Misc 3d at 25; see also United States v. Locke, 471 U.S. 84, 101 (1985) (explaining that filing deadlines are arbitrary "with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced"); People v. Young, 2026 NY Slip Op 50836(U), at *3 (N.Y.C. Crim. Ct., Bronx Co. 2026) (enforcing against the People a deadline missed by a few seconds).

Rivera nevertheless asks for his late filing to be excused because of "unexpected technical issues." Defense's Reply at 3. But it is far from certain that a court can excuse a late filing under § 245.50(4)(c). While the time limits of C.P.L. § 245.50(4)(c) probably are not jurisdictional, they use mandatory "shall" language, both in the original 35-day window of § 245.50(4)(c) and the pre-expiration extension requirement of (4)(c)(i). Cf. Fort Bend Cnty., Texas v. Davis, 587 U.S. 541, 548-59 (2019) (articulating the federal distinction between mandatory claim-processing rules, which must be enforced if raised but are subject to waiver and forfeiture, and jurisdictional rules, which always must be enforced even if the parties do not raise them). The time limit also was appropriately invoked by the People in their response.

Rivera also did not sound the alarm about the technical difficulties when they arose, which would have been before the extended COC-challenge period expired. See C.P.L. § 245.50(4)(c)(i). Had he done so, the deadline could have been extended further. Instead, the first mention of the technical issues came in his reply brief, when further extensions were no longer possible.

To the extent that § 245.50(4)(c) might be subject to equitable tolling despite statutory language suggesting to the contrary, see O'Hara v. Bayliner, 89 NY2d 636, 646 (1997), the technical issues would not warrant tolling. Rivera does not explain what the technical issues were, or how and when they arose.

For the reasons set forth above, Rivera's COC challenge is time-barred. While he is still free to seek discovery sanctions based on late-provided or withheld discovery, he cannot challenge the validity of the People's COC. Accordingly, that branch of his motion will be denied.

b. Rivera's challenge to the facial insufficiency of the accusatory instrument, by contrast, is not time-barred, and is partially meritorious.

The People's untimeliness argument is unpersuasive as applied to the balance of Rivera's motion. Nothing other than the COC challenge is governed by the 35-day time limit of § 245.50(4)(c), and courts routinely extend briefing deadlines when circumstances warrant. Besides, facial insufficiency challenges are jurisdictional, and can be raised at any time—even for the first time on appeal. See People v. Sanson, 59 Misc 3d 4, 6 (App. Term, 2d, 11th & 13th Jud. Dists. 2018).

A count of a misdemeanor information is facially sufficient if supported by allegations that, taken as true and with all reasonable inferences drawn, provide reasonable cause to believe the defendant committed the charged offense while establishing every element through non-hearsay allegations. See People v. Ocasio, 28 NY3d 178, 180 (2016); People v. Jackson, 18 NY3d 738, 741, 747 (2012). "Reasonable cause" means probable cause, People v. Maldonado, 86 NY2d 631, 635 (1995), and requires a showing that would convince an ordinary person that the offense was likely committed, C.P.L. § 70.10(2). 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).

1. For the purposes of this decision, and in the absence of any argument from the defense to the contrary, the facial sufficiency of each count will be evaluated based on the totality of the conduct alleged in the instrument, with a focus on the November 6 failure to charge the ankle monitor.

An assessment of facial sufficiency begins with an unanswered question: which alleged misconduct forms the basis of each charge? The top of the instrument—its accusatory portion, see C.P.L. § 100.15(2)—announces that Rivera is being charged with one count each of three crimes, all occurring "on or about November 6," the date the monitor allegedly went dark. Accusatory Instrument at 1. Yet the instrument continues by describing not just events that preceded November 6, but also those that followed, such as the no-show on November 19 and Rivera's eventually apprehension on January 11. See Accusatory Instrument at 1-2.

While the January 11 apprehension is ostensibly included to show that the ankle monitor appeared to be disabled, the role of the November 19 conduct is less clear. Is Rivera's failure to appear on November 19, or to be in his residence for the home visit, intended to establish the elements of the charges? The parties do not say, although the People's response can be read to suggest that, in their view, the November 19 no-show is part of the conduct encompassed by the obstructing count, because it indicated more than "passive noncompliance" with a condition of release. People's Resp. at 13.

The ambiguity could ultimately matter. An accusatory instrument is supposed to inform a defendant of the date of the alleged offense, although it need not do so with exactitude. See People v. Sedlock, 8 NY3d 535, 538 (2007). Doing so helps avoid constitutional problems, see id., and related concerns such as the inadvertent creation of a duplicitous count, see People v. Alonzo, 16 NY3d 267, 269 (2011). The precise acts intended to form the basis of the obstruction charge are particularly unclear, including whether the People intended to charge it as a continuing offense. See People v. Sutcliffe, 62 Misc 3d 137(A), 2018 NY Slip Op. 51948(U), at *1-2 (App. Term, 1st Dept. 2018) (addressing second-degree harassment as a continuing offense that "may be committed by multiple acts which occur over a period of time"); People v. Young, 141 AD3d 551, 553 (2d Dept. 2016) (addressing continuing offenses and interruptions in a course of conduct).

Because of the lack of specificity, this decision provides an answer just to the questions the parties have asked.⁷ See Clark v. Sweeney, 607 U.S. 7, 9-10 (2025) (per curiam) (discussing party presentation principle); Misicki v. Caradonna, 12 NY3d 511, 519 (2009) (same). Not all aspects of sufficiency are truly jurisdictional. See People v. Keizer, 100 NY2d 114, 122 (2003) (emphasizing that hearsay is a nonjurisdictional defect that nevertheless pertains to sufficiency); see also People v. Rozario, 20 Misc 3d 76, 79-80 (App. Term, 9th & 10th Jud. Dists. 2008) (addressing whether the timeframe of an offense presents a jurisdictional issue). Even if this aspect is at least quasi-jurisdictional, a court is not required to stray from the arguments raised to provide definitive answers to tricky questions the parties have not asked. Cf. Behrens v. JPMorgan Chase Bank, N.A., 96 F.4th 202, 208 (2d Cir. 2024) (observing, in the context of federal subject matter jurisdiction, that a trial court "is not obligated to consider [ ] or to search for jurisdiction sua sponte, although it may choose to do so").

Thus, the discussion that follows takes the accusatory instrument at face value to determine whether the charged counts are sufficient based on the conduct alleged.

2. The obstructing governmental administration count is facially sufficient because Rivera is alleged to have interfered with his parole supervision by allowing his ankle monitor to power down, and then missed a check-in and home visit.

The first count of the accusatory instrument charges obstructing governmental administration in the second degree under P.L. § 195.05(1). That wide-ranging charge reaches conduct that, among other things, "intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference." P.L. § 195.05(1).⁸ The interference must be in part physical, but "criminal responsibility should attach to minimal interference set in motion to frustrate police activity." People v. Dumay, 23 NY3d 518, 524 (2014) (internal quotation marks and citation omitted).

Placed within the specific context of parole and post-release supervision—and the context of a charge is a relevant consideration in assessing facial sufficiency, see Gonzalez, 184 Misc 2d at 264—the allegations and reasonable inferences establish that Rivera physically interfered with the governmental function of monitoring by parole. According to the narrative of the accusatory instrument, Rivera did not charge his bracelet and, later, absconded from supervision. Viewed in a holistic and not hyper-technical way, these allegations communicate the governmental function that Rivera allegedly impeded and how he purportedly did so, giving him adequate notice to prepare a defense. See Hatton, 26 NY3d at 369-70.

The same holds even if the conduct forming the charge is limited to just the November 6 powering-off of the ankle monitor. The instrument establishes that a person on parole supervision with electronic monitoring must affirmatively charge his ankle monitor and that a failure to do so impedes parole's ability to supervise him. Parole's contemporary knowledge of the monitor's going dark shows that the consequences of not charging the monitor were immediately apparent.

Moreover, and contrary to Rivera's argument, appellate courts in this state have not consistently required an "affirmative" act for a § 195.05(1) violation. Rivera was under the duty to charge his ankle monitor, but apparently did not do so. His refusal to comply with the obligations placed upon him is at least arguably physical conduct under the case law as it currently stands, as a refusal to act after a lawful request suffices—although a recent leave grant may mean that the Court of Appeals intends to revisit this issue. See People v. Rush, 85 Misc 3d 134(A), 2025 NY Slip Op. 50484(U), at *1 (App. Term, 9th & 10th Jud. Dists. 2025) ("[D]efendant, having exited the vehicle without being prompted by the officer, physically interfered with that official function by refusing to get back into the vehicle when the officer ordered him to do so ․"); People v. Muller, 84 Misc 3d 127(A), 2024 NY Slip Op. 51425(U), at *1 (App. Term, 1st Dept. 2024) (concluding that "allegations that [the defendant] repeatedly refused to remove her hat and put it through the magnetometer, and then refused to step aside or leave, satisfied" the physical conduct requirements of the statute), leave granted, 43 NY3d 1010 (2025).⁹

The language of the obstruction statute supports this conclusion. Coordinate statutes from other jurisdictions sometimes specify that evasion or avoidance of a legal duty, or flight from authorities, does not fall within the ambit of the offense. See, e.g., Pa. Cons. Stat. § 5101 ("[T]his section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions."); N.J. Stat. Ann. § 2C:29-1(a) ("This section does not apply to failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions."). Section 195.05, by contrast, contains no similar carve-out, suggesting that evasion or avoidance of a legal duty, or attempting to evade supervision, is not explicitly outside the four corners of conduct prohibited by the statute.

In sum, the § 195.05(1) count is facially sufficient, at least under the arguments the parties have advanced. The branch requesting dismissal will be denied as to that count.

3. The petit larceny count also survives the facial sufficiency challenge, as the allegations suggest that Rivera did not intend to return an ankle bracelet that he knew did not belong to him.

The petit larceny count also survives the sufficiency challenge, albeit just barely. A person is guilty of petit larceny if he "steals property." P.L. § 155.25. And a person "steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." P.L. § 155.05(1) (emphasis added). An "owner" is a "person who has a right to possession thereof superior to that of" the alleged thief. P.L. § 155.00(5); accord People v. Wilson (Alvin), 93 NY2d 222, 225 (1999)

A larceny count is "sufficient for pleading purposes" at the facial sufficiency stage when the facts establish that the defendant "exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights." People v. Gonzalez, 84 Misc 3d 132(A), 2024 NY Slip Op. 51704(U), at *1 (App. Term, 1st Dept. 2024) (internal quotation marks and citation omitted). Although the dominion may be temporary, the alleged thief must have the intent to permanently deprive the owner of property. See People v. Jennings, 69 NY2d 103, 124-25 (1986).

The allegations here suffice, again just barely, to establish these elements. Viewed in the light most favorable to the People, they show that Rivera failed to charge the ankle monitor despite being on notice that it belonged to parole, and his absconding from supervision permits the reasonable inference that he did not intend to return the monitor to its owner. Thus, that count survives Rivera's challenge.

4. The third-degree tampering count is facially insufficient, as tampering means active interference, and the People have provided nothing to suggest that a different definition should apply to the Penal Law's use of the term.

The third-degree tampering count, by contrast, does not. That charge requires a showing that the defendant "tamper[ed] with property of another person with intent to cause substantial inconvenience to such person or to a third person." P.L. § 145.14.

As generally used, the word "tampering" requires affirmative alteration. Black's, for instance, defines "tampering" as "[t]he act of altering a thing"—a definition incorporated into the CJI charge for this count. Tampering, Black's Law Dictionary (12th ed. 2004); see also CJI, Criminal Tampering in the Third Degree, https://www.nycourts.gov/judges/cji/2-PenalLaw/145/145-14.pdf (requiring the improper alteration of or interference with property). The relevant definitions from Merriam Webster define interfering as "to interfere so as to weaken or change for the worse" or "to render something harmful or dangerous by altering its structure or composition." Tampering, Merriam Webster. Decisions from other jurisdictions follow suit. See, e.g., United States v. Lyle, 742 F.3d 434, 436-39 (9th Cir. 2014) (collecting definitions of "tampering" and concluding that under the rule of lenity, tampering with consumer products required "alteration or adulteration of the item tampered"); State v. Jessee, 919 N.W.2d 335, 338-39 (N.D. 2018) (collecting cases and authorities for the proposition that "tampering with public services or utilities ․ requires alteration or harmful conduct").

That is generally consistent with how "tampering" is understood in the case law of this state. For instance, an accusatory instrument alleging that a defendant placed a long object into a mailbox, and was otherwise found with glue traps and adhesive, was facially sufficient as to a charge of second-degree tampering. See People v. Jimenez, 88 Misc 3d 138(A), 2026 NY Slip Op. 50721(U), at *1 (App. Term, 1st Dept. 2026). And a defendant who "push[ed] a metal rod up and down in a subway turnstile's token slot" was properly convicted of tampering. People v. Gittens, 279 AD2d 291, 291 (1st Dept. 2001).

Here, the tampering count is entirely based on allegations that Rivera did not charge his ankle monitor. That conduct is passive, not the active alteration ordinarily associated with tampering. The People point to no decision supporting a charge of tampering on similar facts, and the Court is aware of none.

Thus, while the larceny charge was stretched thin, the tampering charge is beyond the breaking point, as nothing about Rivera's alleged misconduct suggests affirmative alteration or interference with the monitor. The count is facially insufficient and will be dismissed.

* * *

For the reasons set forth above, the branches of the motion seeking dismissal are denied in part and granted in part, and the third-degree tampering count is dismissed. A Wade/Dunaway hearing is ordered. Any Sandoval/Molineux/Ventimiglia/preclusion issues are referred to the trial court. Any request for relief not specifically mentioned is denied.

FOOTNOTES

1.   The version of this decision submitted for publication has been lightly redacted to remove certain identifying information.

2.   Rivera's affidavit of email service reflects a May 8 service date on the People. That is probably a typographical error or template remnant, as the affidavit of service is itself dated May 15.

3.   As of May 16, the People still not had responded to Rivera's discovery objections. They did so only on May 22, about a week after the defense's motion was due, and reported that none of the material existed—including body-worn camera footage of the arrest. See People's Resp., Ex. 6.

5.   This decision follows the parties' assumption that "addressed by motion" is functionally synonymous with "filing."

6.   The People contend that the allegations relating to the parole form were entirely superfluous, and that the elements of each offense were made out even with that paragraph excluded. See People's Resp. at 15-16. Their case for intent, however, is much weaker without the knowledge imparted by the parole form.

7.   A definitive resolution is also made more difficult because neither side cites any case law in this section, at least outside of the legal standard itself. See Defense's Mot. at 9-13; People's Resp. at 12-16.

8.   The statute also prevents obstruction by means of "any independently unlawful act," as well as interfering "with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service." P.L. § 195.05(1). The parties do not discuss whether Rivera's alleged conduct here would amount to an "independently unlawful act" or implicate the telecommunications portion of the statute. Accordingly, the above-the-margin discussion follows the parties' lead and focuses on the physical-obstruction portion of the statute. But see People ex rel. Foley v. Martuscello, 87 Misc 3d 1221(A), 2025 NY Slip Op. 51652(U), at *2-5 (Sup. Ct., Bronx Co. 2025) (addressing a similar issue in the context of a habeas petition challenging parole detention); see also State v. Gaines, 206 P.3d 1042, 1056 (Or. 2009) (discussing parallel Oregon statute and the history of state adoption of the Model Penal Code); ACLU of N. Cal. v. U.S. Dep't of Just., 880 F.3d 473, 485 n.9 (9th Cir. 2018) (referring to GPS data as a subset of telecommunications systems).

9.   Neighboring New Jersey has cast doubt on the theory that inaction amounts to a physical act, with the New Jersey Supreme Court holding that a person's refusal to unlock a door for "warrantless entry by police officers who were responding to a report of potential domestic violence" was not physical action that violated New Jersey's coordinate statute, N.J. Stat. Ann. § 2C:29-1(a). State v. Fede, 202 A.3d 1281, 1283, 1287 (N.J. 2019); see also id. at 1288 (distinguishing the inaction in Fede from an earlier obstruction decision where a person slammed the door on officers). In Fede, however, the person had no preexisting duty to the authorities at his doorstep, so Fede's application to circumstances where a person absconds from supervision is less certain.

David L. Goodwin, J.