The People of the State of New York, v. Moises Ortiz, Defendant. (2026)

Defendant moves to dismiss the accusatory instrument as facially insufficient pursuant to CPL §§ 170.30 (1) (a) and 170.35 (1) (a), and, in the alternative, seeks to preclude the People from introducing any evidence of Defendant's prior convictions or bad acts at trial. For the reasons set forth below, Defendant's motion to dismiss is granted and the alternative relief requested is denied as moot.

As alleged in the criminal court complaint, on January 19, 2026, at approximately 8:34 A.M., a police officer responding to a dispute inside 2005 Walton Avenue, Bronx, New York, "attempted to effectuate a lawful arrest of defendant, [when] defendant spit in [the officer's] face," and as a result, the officer had to seek unspecified treatment at a local Bronx hospital (Compl. at 1). For this conduct, Defendant is charged with one count of Penal Law § 120.00 (1), Assault in the Third Degree, and no other charges.¹

The question now before the Court is whether spitting at another person, however contemptuous or distasteful such behavior may be, can constitute Assault in the Third Degree (PL § 120.00 [1]), a class A misdemeanor.

In New York, a person is guilty of Assault in the Third Degree "when with intent to cause physical injury to another person, he causes such injury to such person" (PL § 120.00 [1]). Physical injury is defined as the "impairment of physical condition or substantial pain" (PL § 10.00 [9]). The legislative history of the "physical injury" requirement demonstrates that the Legislature expressly intended to omit from the definition of "physical injury" any " 'petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives' " (Matter of Phillip A., 49 NY2d 198, 200 [1980] [quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330]). Rather, "the Legislature intended to set a threshold of something more than a mere technical battery" (People v Henderson, 92 NY2d 677, 680 [1999], citing People v Rojas, 61 NY2d 726, 727 [1984]).

A complaint alleging physical injury will typically plead "impairment of physical condition" and/or "substantial pain," in the alternative. Factual allegations of either one are sufficient for pleading purposes "to warrant the conclusion that the victim suffered an 'impairment of physical condition or substantial pain,' " and, thus, to meet "the prima facie requirement set forth in CPL § 100.40 (1) (c)" (Henderson at 680; People v Alejandro, 70 NY2d 133, 137 [1987]). Failure to allege either, however, will render the complaint "fatally defective" and require dismissal (Henderson at 680).

As an initial matter, there is no question that the accusatory instrument at issue fails to allege that the complaining officer suffered any "substantial pain" or, indeed, that he suffered any physical pain at all. Caselaw (and guidance) concerning what constitutes "impairment of physical condition" is more limited (see e.g., People v Hallman, 88 Misc 3d 1263 [A] [Crim Ct NY County 2026] [noting that impairment of physical condition is "not well defined in the case law"]). While the term is not defined in the Penal Law, the Merriam-Webster dictionary defines "impairment" as "diminishment or loss of function or ability" (Merriam-Webster.com Dictionary, impairment [https://www.merriam-webster.com/dictionary/impairment]).

Here, even assuming all factual allegations as true and giving the information a "fair and not overly restrictive reading," the Court finds that the accusatory instrument fails to allege impairment, diminishment or loss of function or ability (see People v Casey, 95 NY2d 354, 360 [2000] [citations omitted]). To be facially sufficient, the factual allegations of an information must "give an accused notice sufficient to prepare a defense" (id.). Aside from referencing unspecified treatment at a local hospital, the information here does not include any facts to suggest how defendant spitting on the officer, even if true, actually impaired the officer's physical condition (People v Dipoumbi, 23 Misc 3d 1127 [A] [Crim Ct NY County 2009]; cf. People v O'Connor, 34 Misc 3d 1231 [A] [Dist Ct Suffolk County 2012] [complainant's difficulty swallowing, breathing, and moving right elbow sufficient to demonstrate "physical injury by impairment of physical condition" for purposes of facial sufficiency motion]). Nor does the supporting deposition include any additional facts from which such information may be inferred (see People v Morel, — NY3d —, 2026 NY Slip Op 01143, *1 [2026], citing People v Hardy, 35 NY3d 466, 475 [2020] ["court may only consider additional documents if the accusatory instrument appends, references, or incorporates them"]).

Inasmuch as the People's opposition papers paraphrase the Court of Appeals' observation that, "[i]n the normal course of events, the deposition supporting a misdemeanor complaint will be secured within hours or days after the events complained of," and before the complainant may "know with any certainty" what the "lasting effects" of an attack may be (Henderson, 92 NY2d at 680-81 [noting that "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial"]), in this case, the supporting deposition was not signed until March 9, 2026 — nearly two months after the alleged incident took place — which is more than enough time to know with at least some certainty what effects the officer suffered as a result of the spitting (cf. O'Connor, supra, 34 Misc 3d 1231 [A] [supporting deposition obtained three hours after alleged incident]). The People's motion papers, which were filed on June 26, 2026, likewise provide no additional information beyond that the officer "also took a break from work" (People's Mem. at 3).

Spitting has long been recognized as "offensive, abusive [and] insulting conduct calculated to incite others," but, without more and as alleged here, it simply does not satisfy New York's physical injury requirement for an assault prosecution (Hitchcock Plaza, Inc. v Clark, 1 Misc 3d 906 [A] [quoting People v Rabey, 48 NYS 2d 937, 939 (Broome County Ct 1944) and reviewing cases to conclude spitting "not an assault in New York"]). As the People assert no other charges against Defendant beyond Assault in the Third Degree, the motion to dismiss for facial insufficiency must be granted and the case against Defendant dismissed.²

Accordingly, it is

ORDERED that Defendant's motion to dismiss the criminal court information for facial insufficiency pursuant to CPL §§ 170.30 (1) (a) and 170.35 (1) (a) is granted; and it is further

ORDERED that sealing is stayed 30 days from the date of this decision and order.

Date: August 5, 2026

Hon. Anna Mikhaleva

FOOTNOTES

1.   These allegations, if true, would appear to support a charge of Aggravated Harassment in the Second Degree (PL § 240.30 [3]) and other related charges (People v Carlson, 183 Misc 2d 630 [1999] [Crim Ct NY County 1999] [denying facial insufficiency motion because spitting in face constitutes "physical contact" for purposes of aggravated harassment charge]), however, the People only charge Defendant with Assault in the Third Degree, which requires "physical injury," and not mere "physical contact."

2.   To the extent the People rely on People v Harper (145 AD2d 933, 934 [4th Dept 1988]), People v Moise (199 AD2d 423 [2d Dept 1993], and People v Sekoll (254 AD2d 797 [4th Dept 1998] in their opposition, these cases all dealt with whether evidence was sufficient to sustain a conviction at trial, not whether physical injury was sufficiently alleged in the accusatory instrument.

Anna Mikhaleva, J.