The People of the State of New York v. Brad Paul, Defendant. (2026)

Defendant is charged with Menacing in the Third Degree (PL § 120.15); Harassment in the Second Degree (PL § 240.026[1]) and Obstructing Governmental Administration in the Second Degree (PL § 195.05[1]). By motion filed on May 15, 2026, the defendant challenges the facial sufficiency of the accusatory instrument. The People filed an opposition on June 5, 2026. For the reasons set forth below, the defendant's motion to dismiss is granted as to Menacing in the Third Degree and Harassment in the Second Degree. The defendant's motion to dismiss is denied as to the charge of Obstructing Governmental Administration in the Second Degree.

The criminal action commenced with the filing of a misdemeanor complaint on January 10, 2026. The People filed and served a certificate of compliance (COC), and statement of readiness (SOR) on April 10, 2026.

Facial Sufficiency

To be facially sufficient, an information together with any supporting depositions, must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. (See CPL § 100.40 [1][a]-[c]. See also People v Dumas, 68 NY2d 729 [1986]; People v Alejandro, 70 NY2d 133 [1987]; People v McDermott, 69 NY2d 889 [1987]; People v Case, 42 NY2d 98 [1977].) This does not require that the accusatory instrument state facts that would prove the defendant's guilt beyond a reasonable doubt, but rather that it contains allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." (People v Casey, 95 NY2d 354, 360 [2000].) The court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations. (CPL § 100.15; Alejandro, supra; People v Henderson, 92 NY2d 677 [1999].)

The accusatory instrument, sworn to by Police Officer Emiljano Oparaku, states that the defendant committed the offenses of Menacing in the Third Degree and Harassment in the Second Degree on or about and between June 15, 2025, at 12 a.m. and July 31, 2025, at 12 a.m. at 45 Newport Street, County of Kings, State of New York. It further accuses the defendant of committing the offense of Obstructing Governmental Administration in the Second Degree on January 9, 2026, at approximately 8 p.m. the same location. A supporting deposition sworn to by Robert Ainehsazan was also filed and served by the People. The factual portion of the information states as follows:

The deponent is informed by Robert Ainehsazan that, on or about and between the first above times and place, which is in the vicinity of an apartment building, at one occasion the defendant approached the informant's vehicle and shouted at the informant in sum and substance: I know this is your car be very careful if you come to the building something is going to happen.

The deponent is further informed by Robert Ainehsazan that, on or about and between the first above times and place, on another occasion, when the informant told the defendant he would call the police about the defendant's behavior at said apartment building, the defendant shouted to the informant in sum and substance: if you like your life be careful.

The deponent is further informed by Robert Ainehsazan that the above-mentioned actions of the defendant caused the informant to fear imminent physical injury and to become alarmed and annoyed.

The deponent further states, that on or about and between the second above times and place, when the deponent and other New York City Police Officers attempted to place cuffs on the defendant, the defendant resisted by flailing the defendant's arm and tensing the defendant's body.

Menacing in the Third Degree

The defendant argues that the factual allegations in the accusatory instrument do not sufficiently establish each element of Menacing in the Third Degree. Specifically, he asserts that the information does not allege facts that the defendant engaged in a physical act that would rise to the level of a physical menace. Noting that the information only alleges verbal threats and does not establish that he engaged in any physical act, he argues that verbal threats alone do not establish a violation of the charge, thus requiring dismissal of that count.

In response, the People assert that the accusatory instrument sufficiently establishes all the elements of Menacing in the Third Degree. They argue that threats of physical violence made face-to-face are sufficient to establish the element of physical menace. In support of this argument, they cite Matter of Calin-Horvath v Horvath, where the Second Department held that allegations that the appellant was banging on the appellee's door while threatening to break her hands and legs sufficiently supported a finding that he committed the family offense of Menacing in the Third Degree. (Matter of Calin-Horvath v Horvath, 177 AD3d 876, 878 [2d Dept 2019].) They assert that the facts of the instant matter are substantially similar to Horvath requiring a similar result.

A person is guilty of Menacing in the Third Degree when "by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury." (PL § 120.15.) To be facially sufficient, an information charging this offense must provide non-hearsay factual allegations establishing a physical act that placed the complainant in fear of death or injury. (See Matter of Mondy E., 121 AD3d 785, 788 [2d Dept 2014]; In re Akheem B., 308 AD2d 402 [1st Dept 2003].) Although physical contact is not necessary, verbal threats alone are not enough to establish that the offense has been committed. (People v Kennedy, 2023 NY Slip Op 51389U [App Term 2d Dept 2014]; In re Akeem B, 308 AD2d 402 [1st Dept 2003].) The accusatory instrument must allege that the defendant engaged in, at least, a threatening gesture. (Kennedy, at 2.)

Here, the information alleges that the defendant made verbal threats to the complainant on two occasions. It does not contain any allegations that would tend to show that the defendant engaged in any physical act or gesture that would create a reasonable fear of death, imminent serious physical injury or physical injury. Unlike in Horvath, where the defendant banged on the complaint's door while threatening an assault, the accusatory instrument in this case does not describe any act, movement, or gesture that would establish the necessary element of physical menace. As such, the charge of Menacing in the Third Degree must be dismissed for facial insufficiency.

Harassment in the Second Degree

In his motion papers, although the defendant does not explicitly make out a detailed argument about dismissal of duplicitous counts, he references CPL § 200.30(1). Pursuant to CPL § 200.30 (1), "each count of an indictment may charge one offense only." A count that alleges multiple acts or incidents is duplicitous and violates CPL § 200.30 (1). The rule against duplicitous counts serves to give the defendant adequate notice of the charges against him, to protect the defendant's right against double jeopardy and to ensure the reliability of unanimous verdicts. (See People v Keindl, 68 NY2d 410, 418 [1986].)

The statute specifically references indictments; however, because the constitutional underpinnings of the rule are equally important in misdemeanors, courts have held that this provision also applies to misdemeanor informations. (See People v Rodriguez, 2016 NY Slip Op 50248U [Crim Ct Queens County 2016]; People v Salazar, 83 Misc 3d 1237A [Crim Ct Kings County 2024]; People v C.H., 75 Misc 3d 636 [Crim Ct Queens County 2022]; People v Evangelista, 1 Misc 3d 873 [Crim Ct Bronx County 2003].) Counts that charge course of conduct crimes are not subject to the duplicity rule. (People v Booker, 226 AD3d 1045, 1046 [2d Dept 2024].)

The instant accusatory instrument charges the defendant with one count of Harassment in the Second Degree, PL § 240.26(1), which is an offense pertaining to a single act, and not a course of conduct. Therefore, the rule against duplicity applies to this count. Here, the information alleges that the defendant made threats against the complainant on two separate occasions between June 15, 2025, and July 31, 2025. The People, under these facts, could have charged two counts of Harassment in the Second Degree for the alleged offenses which would have been legally and facially sufficient. However, they opted to charge one count for two separate incidents. This makes the sole charge duplicitous in violation of CPL § 200.30 (1). As such, the count must be dismissed.

Obstructing Governmental Administration in the Second Degree

Pursuant to PL § 195.05(1), a person is guilty of Obstructing Governmental Administration in the Second Degree when "such person 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, or by means of any independently unlawful act."

The defendant, noting that the first two counts of the accusatory instrument are jurisdictionally defective, argues that count three of the information is facially insufficient because it fails to allege that the defendant's arrest was authorized. He argues that absent allegations establishing an authorized arrest, the information does not set forth facts that would establish that the officers were engaged in an official function.

In response, the People assert that the officers were effectuating an arrest based on an open complaint and that the defendant was later identified by the complainant as the perpetrator of the alleged offenses. The People argue that this gave the officers probable cause to effectuate an arrest. They further argue that by flailing his arms and tensing his body, the defendant, by means of physical force, attempted to prevent the officers from performing an official function. They assert that, having met all the elements of the crime, the facial sufficiency of count three of the information is not contingent on the sufficiency of the other offenses.

To be sufficient on its face, an accusatory instrument charging Obstructing Governmental Administration in the Second Degree must allege facts that establish an official function and the defendant's obstruction thereof. (People v Ballard, 28 Misc 3d 129A [App Term 2d Dept 2010].) When the official function is an arrest, the information need not establish that the arrest was authorized for a sufficient pleading. (People v Aitkens, 45 Misc 3d 50, 53 [App Term 2d Dept 2014].) "The defendant may use an unauthorized arrest as a defense to the charge and it is the duty of the trier of fact to determine if the arrest was, in fact, authorized." (People v Cascere, 185 Misc 2d 92, 94 [App Term 2d Dept 2000]; See also People v Cox, 44 Misc 3d 134A [App Term 2d Dept 2014].) The People are not required to allege facts tending to disprove potential defenses. (Cox at 134.)

Here, the factual allegations establish that the officers attempted to arrest the defendant for the offenses alleged in the same complaint,¹ and that the defendant flailed his arms and tensed his body in an effort to prevent them from effectuating the arrest. Both the official function and the defendant's alleged acts to prevent the officers from fulfilling that function are set forth with enough specificity to give the defendant notice of the accusation against him and to allow him to adequately prepare a defense. Whether the arrest was authorized is an issue to be determined at trial by the trier of fact and does not impact the facial sufficiency of the accusatory instrument. At this stage in the proceedings, the People are tasked with the burden of establishing reasonable cause to believe that the defendant committed the charged offense.

Accordingly, the defendant's motion to dismiss this count for facial insufficiency is denied.

Speedy Trial

CPL § 30.30(1)(b) requires the People to be ready within 90 days of the commencement of the criminal action. After careful review of the defendant's motion and the People's response, the motion to dismiss is denied; the court finds that 90 chargeable days have accrued since the commencement of the criminal action.

January 10, 2026, to March 12, 2026

On January 10, 2026, the defendant was arraigned on a misdemeanor complaint. The defendant was released and the matter was adjourned to March 12, 2026, for the People's certificate of compliance.

61 chargeable days.

March 12, 2026, to April 24, 2026

On March 12, 2026, the People had not yet filed a certificate of compliance. The matter was adjourned to April 24, 2026, for that purpose. On April 10, 2026, the People filed a valid COC and SOR.

29 chargeable days.

April 24, 2026, to July 13, 2026

On April 24, 2026, the Court set a motion schedule and adjourned the matter to July 13, 2026, for the Court's decision on defendant's motion. The instant motion was filed on May 15, 2026. The People's response was filed on June 5, 2026.

0 chargeable days.

July 13, 2026, to July 27, 2026

On July 13, 2026, the decision was not yet ready. The matter was adjourned to July 27, 2026, for the Court's decision.

0 chargeable days.

The People have accrued a total of 90 chargeable days since the commencement of the criminal action and the defendant's motion to dismiss is therefore denied.

This constitutes the decision and order of the court.

Dated: July 27, 2026

Kings County, New York

Hon. Masateru Marubashi

Judge of the Criminal Court

FOOTNOTES

1.   The sole basis for the dismissal of Harassment in the Second Degree, PL § 240.26(1), is based on procedural grounds as explained above.

Masateru Marubashi, J.