The People of the State of New York, v. John C., Defendant. (2026)

John C., hereinafter "defendant," is charged by superseding information with the following class A misdemeanors: one count of Menacing in the Second Degree (Penal Law § 120.14 [1]); one count of Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05); and two counts of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]). He is charged by the same instrument with one count of Possessing or Selling Air Pistols and Rifles (Administrative Code of City of NY § 10-131 [b]), a violation.

By omnibus motion, defendant moves for a variety of relief, including dismissal of the accusatory instrument as facially insufficient (CPL 100.40, 170.30 [1] [a], and 170.35 [1] [a]) and violating his right to a speedy trial (CPL 30.30, 170.30 [1] [e]). He also moves to controvert two search warrants and suppress all resulting evidence (US Const, 4th Amend; NY Const, art I, § 12; CPL art 690; CPL 710.20). The People oppose. For the reasons articulated herein, defendant's motion to dismiss the accusatory instrument for facial insufficiency is GRANTED as to one count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]) and DENIED as to the other count of the same; his motion to dismiss the entire instrument pursuant to CPL 30.30 is DENIED; and his motion to controvert the search warrants is DENIED as to the blue Volvo and GRANTED as to the cell phone records.

Arguments of the Parties

Defendant asserts multiple grounds for the deficiency of the charging instrument. He argues that the two counts of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]) are multiplicitous because the allegations set forth only one continuous possession on December 6, 2025. He further argues that to separately charge him for possession on December 7, 2025, presents a geographical jurisdictional defect since it occurred only as a result of his car being seized in Ardsley and removed to Manhattan, where the gun was found upon search by the NYPD. Finally, he asserts that one of the two counts of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]) — the one presumably connected to the December 7, 2025 recovery of the weapon — is facially insufficient for failure to establish intent to use unlawfully. The defendant also asserts that because of these defects, the People have never stated ready on a facially sufficient instrument, and have therefore failed to toll the CPL 30.30 speedy trial clock.

In response, the People assert that the instrument is not multiplicitous because one count is for the conduct on the street in Chinatown on December 6, 2025, (pointing a gun at a traffic enforcement officer) and the second "is based on a theory of constructive possession where the defendant's possession begins when he enters his vehicle after pointing the firearm at [the traffic enforcement officer] and ends when he is seized in Ardsley by the Ardsley Police Department." (Affirmation of the People ¶ 7.) The People also argue that the instrument presents no jurisdictional defects and properly establishes defendant's intent to use the weapon unlawfully as to both counts.

Defendant also moves to controvert two search warrants. He asserts that the search warrant for the blue Volvo 520 should not have been issued since it did not set forth probable cause; he also claims that its execution was improper for police failure to comply with various CPL 690 requirements. He seeks to controvert the search warrant for cell phone records on the following grounds: probable cause was not established; it was improperly based upon unlawfully obtained information; and it was executed by non-police officers outside of New York State and outside the 10-day time period permitted by law.

The People counter that the blue Volvo search warrant was based on probable cause and properly executed in accordance with all CPL 690 requirements. They further argue that the cell phone record search warrant was supported by probable cause, based on information lawfully obtained by subpoena, and properly executed in a timely fashion by NYPD service upon AT&T, which then performed the search, as permitted by law (Stored Communications Act, 18 USC 2703 [g]; In re 381 Search Warrants Directed to Facebook, Inc., 29 NY3d 231, 244 [2017]).

Facial Sufficiency

An accusatory instrument must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]) and demonstrate "reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [4] [b]). It must contain non-hearsay factual allegations that "establish, if true, every element of the offense charged and defendant's commission thereof" (CPL 100.40 [1] [c]; People v Dumay, 23 NY3d 518 [2014]; People v Casey, 95 NY2d 354 [2000]; People v Dumas, 68 NY2d 729 [1986]). The non-hearsay factual allegations must be sufficient to establish a prima facie case, a standard which does not require the same level of proof needed at trial (People v Suber, 19 NY3d 247 [2012]). The information alone must be sufficient. If a defendant must "resort to the testimony or the record of the evidence to show the crime" for which he is being tried, then the complaint is insufficient (People v Zambounis, 251 NY 94, 96-97 [1929]).

The court must view the facts in the light most favorable to the People when determining the facial sufficiency of an accusatory instrument (People v Contes, 60 NY2d 620 [1983]). "That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry" (People v Deegan, 69 NY2d 976, 979 [1987]). Finally, the court should approach factual allegations with a fair, not overly restrictive or technical reading. The allegations must give defendant enough notice to prepare a defense and prevent defendant from being tried twice for the same offense (Casey at 360). "A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." (People v Case, 42 NY2d 98, 99 [1977].)

A person is guilty of Criminal Possession of a Weapon in the Fourth Degree when he "possesses any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, undetectable knife or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another" (Penal Law § 265.01 [2]).

The factual allegations of the superseding information, completed by a police officer and accompanied by the requisite supporting depositions, read in their entirety:

I am informed by Traffic Enforcement Officer [SH] of the Midtown South Traffic Enforcement Division of the New York City Police Department, that on December 6, 2025 at approximately 10:17 AM at the southeast corner of Elizabeth Street and Broome Street, New York, NY, he was issuing a summons for failure to display a parking meter receipt when he observed an Asian male wearing a light green sweatshirt advance toward him while holding what appeared to be a firearm and pointing it at his face while stating in substance: Why are you ticketing my car. I am further informed by [SH] that the Asian male's above-described conduct placed him in fear of serious physical injury, and impeded his ability to issue a parking ticket. I am further informed by [SH] that he observed the individual enter a green Volvo with the license plate [redacted for publication] and drive towards Broome Street.

I am informed by Police Officer [KC] of the Ardsley Police Department, that on December 6, 2025 at 3:55 PM at Ashford Avenue and American Legion Drive, Ardsley, NY, he observed an Asian male wearing a light green sweatshirt inside a green Volvo with the license plate [same redacted number]. I am further informed by [KC] that he conducted a traffic stop of the vehicle and identified the Asian male driver as the defendant, John C[ ]. I am further informed by [KC] that he then seized the above-described green Volvo.

I am further informed by [KC] that he retrieved a receipt for the payment of a parking meter from the defendant's pants pocket. I am further informed that at the time he retrieved the meter receipt, on December 6, 2025 at about 5:20 PM, the defendant stated in substance: I never got to put that on the dashboard because the [expletive] brownie was trying to give me a ticket.

I am informed by Police Officer [RS] of the New York City Police Department, that on December 6, 2025, at 7:50 PM, the defendant stated in substance: I was in Chinatown this morning and a [expletive] Indian brownie tried to give me a ticket.

On December 7, 2025 at 9:21 AM, I recovered a black "Daisy" BB gun from the trunk of the defendant's Green Volvo with license plate [same redacted number].

Multiplicitous Counts

An instrument is multiplicitous "when a single offense is charged in more than one count" (People v Alonzo, 16 NY3d 267, 269 [2011]). Noting the lack of an "infallible formula for deciding how many crimes are committed in a particular sequence of events[,]" the Court of Appeals offered the following "general rule":

[W]here a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime. Thus, a physical attack by one person upon another is normally but one assault, though the attacker may hit the victim several times.

(Id. at 269-270.) The court was clear about the reason for this rule:

A contrary rule would offer a temptation to abuse: Where there were 10 swings of a fist, a prosecutor might obtain 10 convictions growing out of a single incident—and could even seek 10 consecutive sentences ... .

(Id. at 270.)

Given this binding rubric, it is clear to this court that read in the light most favorable to the People and drawing all reasonable inferences, the instant SSI alleges one gun possession offense but charges two. Here, defendant is alleged to have pointed what appeared to be a firearm at a traffic enforcement officer in Chinatown. Later that day, based on an NYPD alert, he was stopped in Westchester County, in the same vehicle, wearing the same clothes. His car was seized, and a firearm was later found in the trunk. Notwithstanding the People's argument that a separate possession "begins when [defendant] enters his vehicle after pointing the firearm at [the traffic officer] and ends when he is seized in Ardsley by the Ardsley Police Department" (affirmation of the People ¶ 7), this set of allegations sets forth one continuous offense of gun possession, arising on the sidewalk in Chinatown into the defendant's car located within feet of that sidewalk — and therefore supports one charge. As such, the second count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]) is dismissed as multiplicitous. This ruling obviates the need to deeply examine the remaining count for the element of intent or geographic jurisdiction. The SSI amply supports a reasonable inference that defendant committed one count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]) based on the allegation that he advanced toward the traffic enforcement officer at the corner of Elizabeth and Broome streets, "holding what appeared to be a firearm and pointing it at his face." The accusatory instrument establishes both the location within New York County and the requisite intent to use unlawfully, thereby disposing of defendant's remaining facial challenges. Defendant's motion to dismiss the charges of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]) is GRANTED as to one count only.

Facial Sufficiency and CPL 30.30 Speedy Trial

Defendant also moves to dismiss the entire instrument on speedy trial grounds, stating that the above discussed defect means that the People have never stated ready on a valid instrument. However, where an instrument contains both defective and viable counts, dismissal of the entire instrument is not warranted. Instead, this court is bound to follow the rule that "trial readiness [is] a singular event for the entire accusatory instrument" (People v Williams, --- NY3d ---, 2025 NY Slip Op 06535, *3 [2025]). "This rule effectively serves to streamline pretrial motion practice, opening a window during which a defendant can move to dismiss any count which does not meet the facial sufficiency requirements for a misdemeanor information (see CPL 170.10 [1]; 170.30), and thereby ending partial conversion's piecemeal approach." (Id.) The time chargeable to the People under CPL 30.30 is calculated accordingly.

Time Chargeable Under CPL 30.30

The People must be ready for trial within ninety days of the commencement of a criminal action where, as here, the most serious offense is the equivalent of an A misdemeanor punishable by a sentence of imprisonment of more than three months (CPL 30.30 [1] [b]). Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (People v Stiles, 70 NY2d 765 [1987]).

In determining whether the People have satisfied their obligation to be ready for trial under CPL 30.30, the court must calculate the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtract any statutorily excludable periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which no statutory exclusions apply (People v Cortes, 80 NY2d 201 [1992]).

Additionally, the People cannot be deemed ready for trial until a proper certificate of compliance (COC) is filed with the court and served upon the defense. "[A]bsent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 . . . until it has filed a valid certificate . . . " (CPL 245.50 [3]).

On December 8, 2025, the People filed the accusatory instrument. The time period pursuant to CPL 30.30 runs from "the commencement of a criminal action" (CPL 30.30 [1]). This criminal action "commenced" when the first accusatory instrument was filed (CPL 1.20 [17]; People v Stirrup, 91 NY2d 434, 438 [1998]). On December 8, 2025, the court arraigned the defendant and adjourned the case to January 27, 2026, for the People to file the required supporting deposition. The People are charged with 50 days.

On January 27, 2026, the People filed and served a superseding information, on which defendant was arraigned. This court adjourned the matter to March 11, 2026, for trial. Off calendar on February 10, 2026, the People filed and served their COC, certificate of readiness (COR), and attendant discovery materials. Off calendar on February 18, 2026, the People filed and served a second superseding information and three supporting depositions, and COR. Off calendar on March 6, 2026, the People filed a supplemental COC and included a restatement of readiness. As detailed, following a discovery compliance conference, this court later ruled the People's COC valid and accepted their statement of readiness. The People are charged with 22 days.

On March 11, 2026, this court arraigned defendant on the second superseding information. The court commenced a readiness inquiry (CPL 30.30 [5] [a]), and the defense raised specific discovery objections. The court instructed the parties to submit a joint letter outlining their discovery disputes (CPL 245.35 [4]), and set the instant motion schedule. As the motion schedule was originally intended only for simple omnibus motions, the matter was adjourned to April 21, 2026, for response and decision as well as discovery compliance conference (CPL 245.35 [2]). This period is excludable (CPL 30.30 [4] [a]).

On April 21, 2026, this court conducted a discovery compliance conference on the record and reserved decision as to the validity of the People's COC. The court adjourned to May 29, 2026, for decision on the COC and on the instant motions. This period is excludable (CPL 30.30 [4] [a]).

On May 29, 2026, this court ruled the People's COC valid, accepted its statements of readiness, and issued a sanction for the belated disclosure of automatically discoverable material (CPL 245.80), based on the record made by the People. The court adjourned to June 18, 2026, for the instant decision. This period is excludable (CPL 30.30 [4] [a]).

Based on the foregoing, the People are charged with 72 days of delay, which is within the statutory period set forth in CPL 30.30.

Accordingly, defendant's motion seeking to dismiss the accusatory instrument on speedy trial grounds is DENIED.

Search Warrants

Defendant asserts both search warrants lack the probable cause mandated by state and federal constitutions (US Const, 4th Amend; NY Const, art I, § 12). Probable cause requires not proof beyond a reasonable doubt, but "merely information sufficient to support a reasonable belief ... that evidence of a crime may be found in a certain place" People v Bigelow, 66 NY2d 417, 423 [1982] [citations omitted]).

In considering defendant's motion to controvert the search warrants, this court is mindful of the following:

A presumption of validity attaches to a warrant (People v. Castillo, 80 NY2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992], cert. denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993]). Evaluation of whether probable cause exists in a warrant affidavit should be based on all the facts and circumstances viewed together (People v. Bigelow, 66 NY2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985]), and the affidavit should not be read in a hypertechnical manner, but considered in the light of everyday experiences (People v. Traymore, 241 AD2d at 229—230, 672 N.Y.S.2d 44).

(People v Gramson, 50 AD3d 294, 294-295 [1st Dept 2008].) For the reasons described below, this court finds that the search warrant for the blue Volvo 520 provides sufficient probable cause, but the search warrant for phone records does not.

Blue Volvo 520

On December 6, 2025, a judge signed a warrant (annexed to the People's instant response as exhibit A) permitting the police to search a blue Volvo 520 with a specified VIN and license plate number. The application (id.) set forth the following supporting facts. On December 6, 2025, at approximately 10:18 AM, NYPD traffic officer SH observed the described car illegally parked at Elizabeth and Broome Streets in Manhattan; as he was writing a summons, the suspect confronted him and pointed a black firearm at his face. The suspect entered the car and drove away. An NYPD Domain Awareness System search revealed the car was registered to a [redacted for publication] at an address in Yonkers and previously registered to defendant at the same address. The NYPD alerted other law enforcement agencies of its interest in this vehicle. Later that day, at approximately 3:55 PM, Ardsley, New York police officer PR saw the car at Ashford and Euclid Avenues in Ardsley; its description and license plate matched the car that traffic agent SH had earlier attempted to ticket. Upon stopping the car, Officer PR noted a VIN that also matched. The driver was the defendant, and he was wearing clothes of the same description as the person who pulled the gun on the traffic agent that morning in Manhattan. Defendant was arrested; the car was seized by the Ardsley police and transported to the NYPD 5th Precinct to be searched.

Based on this recitation, the court permitted the police to search the car for firearms, ammunition, and evidence of ownership, use or occupation of the car. This court has reviewed the minutes of the record made in court on December 6, 2025, in which the judge granted the search warrant. No additional facts were elicited on the record; the court asked only whether the car was in the possession of the NYPD.

In its analysis, this court must afford proper deference to the issuing judge and reviews the warrant accordingly. Defendant incorrectly argues that the information provided by NYPD traffic agent SH does not pass the Aguliar-Spinelli test (Aguilar v Texas, 378 US 108 [1964]; Spinelli v United States, 393 US 410 [1969]; People v Griminger, 71 NY2d 635 [1988] [declining to abandon "as a matter of State constitutional law, the Aguilar-Spinelli two-prong test" after new federal doctrine was announced in Illinois v Gates, 462 US 213 (1983)]). "To meet that two-part test, the prosecution must demonstrate the reliability of the hearsay informant and the basis of the informant's knowledge." (People v Ketcham, 93 NY2d 416, 420 [1999].) The test is employed when the affiant officer bases his search warrant application on hearsay from an unnamed informant. However, in the instant search warrant application, all informants are identified by name. More to the point, they are all law enforcement personnel, and therefore presumptively reliable informants (People v Parris, 83 NY2d 342, 346 [1994]). Furthermore, the affiant officer details the basis of knowledge for each informant, allowing the court to make the requisite determination (People v Brown, 40 NY2d 183, 186 [1976]). "An unsubstantiated hearsay communication—even when transmitted by a fellow officer—will not satisfy the People's [probable cause] burden." (Ketcham, 93 NY2d at 420.) Yet where the hearsay information comes from the personal knowledge of identified police officers, the information passes both prongs of the Aguilar-Spinelli test.

To the extent that the defendant also attacks the weight and credibility of the information from traffic officer SH, it is also unavailing. In the opinion of this court, the information from SH sets forth ample basis for a reasonable belief that the gun defendant is alleged to have pulled from his waistband and pointed at SH would be in his car when he entered it and drove away in the immediate aftermath. The issuing judge's determination — that probable cause existed to believe the gun would be in the car when it was stopped over five hours later — is presumed valid (People v Ortiz, 234 AD2d 74, 75 [1st Dept 1996]) and is consistent with binding jurisprudence. (See People v Ventura, 217 AD3d 507, 508 [1st Dept 2023] ["The information that formed the basis for the warrant was not stale because the 'state of facts' establishing probable cause for the search of defendant's home 'continue[d] to exist' when the warrant authorizing that search was issued"], quoting People v Reyes, 205 AD2d 452 [1st Dept 1994], lv denied 84 NY2d 870 [1994]; People v Manngard, 275 AD2d 378, 379 [2d Dept 2000] ["the question of staleness necessarily turns upon the nature of the alleged offense and the degree to which it constitutes an ongoing or continuing activity"].) Defendant's motion to controvert the search warrant for the blue Volvo 520 is therefore DENIED. Inasmuch as he alleges noncompliance with statutory provisions and raises factual claims regarding the execution of the warrant, his motion for a suppression hearing is granted.

Cell Phone Records

On March 6, 2026, a judge signed a search warrant for cell phone records, commanding the cell service provider AT&T to furnish several bodies of information: subscriber and payment information; historical call, text and mobile data exchange records, including cell site locations; and preserved or backup records of both.¹ Much of this information was available to the People — and indeed, already obtained by them — via the subpoena process. The exception is the cell site location information (CLSI), which implicates a 4th Amendment privacy interest and therefore requires a search warrant (Carpenter v United States, 585 US 296 [2018]). As such, any search warrant application must show "probable cause to believe that records relating to the location of defendant's phone would provide evidence of the location, planning, and execution of the underlying offenses" (People v Markellos, 69 Misc 3d 1209[A], 2020 NY Slip Op 51236[U], *6 [Sup Ct, Nassau County 2020]). Here, that is precisely what is missing.

The instant application contains absolutely no indication that the defendant possessed, used, brandished, or otherwise carried on his person a cell phone at the time of the incident, or indeed, at any point throughout the day — and therefore provides no requisite link between the records of this cell phone and the crimes charged. There is nothing in the search warrant application to connect this defendant with the sought materials — nothing but the assumption that most people carry cell phones every day, at all times. "The flaw in this reasoning is that common sense alone does not establish probable cause to search" (People v Jemmott, 164 AD3d 953, 954 [3d Dept 2018], emphasis added). Indeed, the totality of the articulated facts connecting this defendant and his criminal charges with the cell phone records is simply this: he was accused of a crime, he offered a phone number on his CJA prearrest form, and the number was linked to him via subpoenaed records. But in the absence of any indication that a phone was in his possession that day — for instance, that it was vouchered upon his arrest — there is an inadequate showing that searching the records of his phone would yield probative information. As such, despite granting all proper deference to the court issuing the warrant, this court cannot find that probable cause exists to justify the ordered intrusion.

Informing that decision is the fact that the People have little or no need for the sought material. There is no doubt that the defendant was present at the scene of the alleged crime. As the application itself states, defendant has repeatedly placed himself at the scene of the crime. A law enforcement eyewitness has done the same. The People do not require his cell phone records to place him there. Defendant's car, VIN, and license plate number are all known to the police and were likely captured by the hundreds of state and city law enforcement cameras located throughout his route from Chinatown to Ardsley. The People sought information about what numbers defendant called and texted during a three-day period surrounding a two-minute incident; such information offers insufficient evidence of a crime to justify the intrusion. It is immaterial whether he made a phone call, sent a text, or did anything else with his cell phone on the days in question. Defendant is charged not with conspiracy, but with weapon possession, menacing and obstruction of governmental administration; the necessary nexus is not present. It does not satisfy the constitutional requirement that "a search warrant application must provide the magistrate with information sufficient to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search." (People v Edwards, 69 NY2d 814, 816 [1987].) Defendant's motion to controvert the search warrant for cell phone records is GRANTED.

The court decides the remaining motions as follows: combined Mapp/Dunaway and Huntley/Dunaway hearings are granted. The People are reminded of their obligations under CPL 245 and Brady/Vilardi. All Sandoval and preclusion issues are respectfully referred to the trial court. The People affirm that they do not seek to introduce any statements made by the defendant to any civilians; the court therefore respectfully defers to the trial court any claims related to the voluntariness of statements made to police officers and/or any statements the People wish to introduce on cross examination should the defendant elect to testify. The defendant's request to file additional motions is granted.

The foregoing constitutes the opinion, decision, and order of the court.

DATED: June 18, 2026

New York, New York

Valentina M. Morales, A.J.S.C.

FOOTNOTES

1.   The search warrant and its underlying application were annexed to the People's instant response papers as exhibit B and duly reviewed by this court. In correspondence with this court, the People reported that the warrant was granted off the record. Accirdingly, this court has not reviewed any minutes associated with this warrant.

Valentina M. Morales, J.