The People of the State of New York v. Richard Forrester, Defendant. (2026)

In his motion, defendant moves to dismiss the counts of Assault in the Third Degree (Penal Law, hereinafter "PL" § 120.00 [1]), Attempted Assault in the Third Degree (PL § 110-120.00 [1]), and Harassment in the Second Degree (PL § 240.26 [1]), as duplicitous in violation of Criminal Procedure Law (hereinafter "CPL") §§ 200.30 and 100.15. In the alternative, defendant challenges the facial sufficiency of these charges under CPL § 100.40 (1) and seeks dismissal pursuant to CPL §§ 170.30 (1) (a), 170.35 (1) (a). Defendant additionally requests the court to order the People to disclose an unredacted domain awareness system (hereinafter "DAS") report for complainant, or conduct an in camera review of the report, and requests a number of pre-trial hearings and court orders. The People oppose the applications for dismissal of charges and disclosure of an unredacted DAS report.

For the reasons detailed below, defendant's motion to dismiss the charges of Assault in the Third Degree (PL § 120.00 [1]), Attempted Assault in the Third Degree (PL § 110-120.00 [1]), and Harassment in the Second Degree (PL § 240.26 [1]) is granted. Defendant's requests regarding the DAS report for complainant and pre-trial hearings and court orders are addressed below.

I. Background

The criminal action commenced with the filing of a misdemeanor complaint on December 27, 2025, charging defendant with Assault in the Third Degree (PL § 120.00 [1]), Unlawful Imprisonment in the Second Degree (PL § 135.05), Endangering the Welfare of a Child (PL § 260.10 [1]), Attempted Assault in the Third Degree (PL § 110-120.00 [1]), and Harassment in the Second Degree (PL § 240.26 [1]). On March 17, 2026, the People filed a superseding information (hereinafter "SSI") charging defendant with Assault in the Third Degree (Penal Law, hereinafter "PL" § 120.00 [1]), Endangering the Welfare of a Child (PL § 260.10 [1]), Attempted Assault in the Third Degree (PL § 110-120.00 [1]), and Harassment in the Second Degree (PL § 240.26 [1]). On March 24, 2026, the People served on defendant and filed with the court an off-calendar certificate of compliance (hereinafter "COC") and statement of readiness (hereinafter "SOR").

On April 28, 2026, defendant filed the instant motion. On May 19, 2026, the People filed their opposition. On May 20, 2026, defendant contacted the court via email and requested leave to file a reply to the People's opposition. This court gave defendant leave to file a reply to the People's opposition by May 27, 2026, and defendant filed his reply on that date.

II. Duplicity and 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 every 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]). Additionally, an accusatory instrument must specify the date and time frame of the offense, and in general provide the accused with sufficient notice to prepare a defense (See People v Rozario, 20 Misc 3d 76, 81 [App Term, 9th & 10th Jud Dists 2008]; People v Boyette 41 Misc 3d 48, 50 [App Term, 9th & 10th Jud Dists 2013]).

The accusatory instrument, sworn to by Assistant District Attorney Emily Cabatic, notes that the alleged criminal conduct described occurred "on or about and in between December 26, 2025 from 09:00 AM to 11:00 PM" and states as follows:

"The deponent is informed by [complainant] that, at the above time and place, a residential apartment, the defendant and the informant engaged in a verbal argument and the defendant placed the defendant's arms around the informants [sic] torso and threw the informant onto the bed and that the defendant held the informant's arms down against the bed prevening [sic] the informant from getting off of the bed.

The deponent is further informed by the informant that the informant attempted to exit said bedroom and that the defendant stood in the door way of said bedroom and that the defendant grabbed the informant's cell phone out of the informant's hand.

The deponent is further informed by the informant that while the informant was in the hallway of the informant's residence the defendant stood in front of the informant to enter the informant's bedroom and that the defendant grabbed the informant about the informants [sic] shoulders and that the defendant shook the informant.

The deponent is further informed by the informant that while the informant was inside of the informant's living room the defendant pushed the informant about the informants [sic] torso causing the informant to lose balance and have to take steps back to prevent the informant from falling.

The deponent is further informed by the informant that the defendant grabbed the informant by the informant's jacket and pulled the informant's jacket off and that the defendant placed the defendant's forearm on the informant's chest and that the defendant pushed the informant against the informant's wall.

The deponent is further informed by the informant that the above-described actions by the defendant caused the informant to suffer substantial pain to the chest, arms, and torso, to suffer redness to the chest, and to become alarmed and annoyed.

The deponent is further informed by the informant that the informant is the mother of [complainant's minor child] and that [complainant's minor child] was present for the above described actions of the defendant, and that [complainant's minor child]'s, date of birth is [redacted].¹ "

Defendant argues that the SSI filed on March 17, 2026, which includes one count each of Assault in the Third Degree (PL § 120.00 [1]), Attempted Assault in the Third Degree (PL § 110-120.00 [1]), and Harassment in the Second Degree (PL § 240.26 [1]), for the entirety of the above-described conduct, is duplicitous in violation of CPL §§ 200.30, 100.15. CPL § 200.30, which relates to duplicitous counts being prohibited in indictments, states:

"(1) Each count of an indictment may charge one offense only.

(2) For purpose of this section, a statutory provision which defines the offense named in the title thereof by providing, in different subdivisions or paragraphs, different ways in which such named offense may be committed, defines a separate offense in each such subdivision or paragraph, and a count of an indictment charging such named offense which, without specifying or clearly indicating the particular subdivision or paragraph of the statutory provision, alleges facts which would support a conviction under more than one such subdivision or paragraph, charges more than one offense."

The proscription against duplicitous counts apply equally where a defendant is charged in an information with misdemeanor charges as it does where a defendant is charged in an indictment with felony charges (People v Elliott, 41 Misc 3d 1228[A] [Crim Ct NY County 2013]; People v Evangelista, 1 Misc 3d 873 [Crim Ct Bronx County 2003]; People v Rios, 142 Misc 2d 357 [Crim Ct Bronx County 1989]).

Under CPL § 200.30 (1), a charge is duplicitous when more than one offense is alleged to have occurred in a single count of an indictment. The Court of Appeals has held that "each count of an [accusatory instrument may] charge only one offense" and that "where one count alleges the commission of a particular offense repeatedly during a designated period of time, that count encompasses more than one offense and is duplicitous," (People v Beauchamp, 74 NY2d 639, 640 [Ct App 1989], quoting People v Keindl, 68 NY2d 410, 417-418 [Ct App 1986]). The prohibition against duplicitous counts protects not only the constitutional guarantee that a defendant be able to prepare a defense and the constitutional protection against being placed in double jeopardy, but it also safeguards the reliability of a jury's unanimous verdict. "If two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any of the other offenses," (People v Keindl, supra, 68 NY2d 410 at 417-418).

Defendant argues that the conduct described in the accusatory instrument, which spans a fourteen-hour period of time, contains five separate instances of conduct that could form the basis of the charges of Assault in the Third Degree (PL § 120.00 [1]), Attempted Assault in the Third Degree (PL § 110-120.00 [1]), and Harassment in the Second Degree (PL § 240.26 [1]): (1) the conduct described in the first paragraph of the information, which alleges defendant to have put his arms around complainant's torso, throwing her onto a bed, and holding her down; (2) the conduct described in the second paragraph of the information, alleging defendant grabbed complainant's cell phone out of her hand; (3) the conduct described in the third paragraph of the information, which alleges defendant pushed complaint's chest, grabbed her shoulders, and shook her; (4) the conduct described in the fourth paragraph of the information, which alleges defendant pushed complainant's torso callusing her to lose balance; and (5) the conduct described in the fifth paragraph of the information, alleging defendant grabbed complaint by her jacket, pulled her jacket off, and pushed complainant against a wall with defendant's forearm.

This court agrees that, with the possible exception of the conduct described in the second paragraph of the information, each of the above-described alleged actions of defendant's could alone meet the elements of Assault in the Third Degree (PL § 120.00 [1]), Attempted Assault in the Third Degree (PL § 110-120.00 [1]), and Harassment in the Second Degree (PL § 240.26 [1]) and therefore are duplicitous. Allowing the People to proceed with the information would leave defendant without protections of proper notice and against double jeopardy, or the safeguards to ensure that a jury's verdict is unanimous.

The court further finds the People's argument that the conduct described in the complaint is not duplicitous because it constitutes a continuous course of conduct unpersuasive. It is the case where there are multiple acts involving multiple weapons directed at a single victim during a single incident, the conduct may be charged as one count (see People v Flanders, 25 NY3d 997 [Ct App 2015]; People v Alonzo 16 NY3d 267 [Ct App 2011]); People v Abussalam, 196 AD3d 1000 [3d Dept 2021]). However, the allegations described in the information here do not constitute a continuous course of conduct: the conduct described involves what appear to be up to five discreet allegations taking place across a fourteen-hour span of time.

The People's reliance on People v Flanders is misguided. In Flanders, there is no allegation that conduct occurred over a protracted period of time and instead the Court of Appeals held that one count each of Assault in the First Degree (PL § 120.10 [1]) and Reckless Endangerment in the First Degree (PL § 120.25) were not duplicitous where, after the defendant was accused of shooting the complainant with two separate firearms, the judge provided the jury with an instruction that the charges "must be proven to [the jury's] satisfaction beyond a reasonable doubt, that either of the weapons were involved or both, as long as you find that there was a deadly weapon involved," (supra, 25 NY3d at 999). The charges were not duplicitous because the language of PL §§ 120.10 (1) and 120.25 did not require proof that defendant used both weapons.

In Abussalam, the defendant was charged with one count of Assault in the First Degree (PL § 120.10) after striking the complainant in the face with a rock or piece of broken concrete and at the same time, date, and location, as complainant attempted to flee, striking the complainant with a golf club shaft (supra, 196 AD3d at 1000). The court noted that the actions of defendant occurred "over a short period of time," (id). In the instant matter, there is no short period of time, or actions by defendant clearly linked during, for example, the flight of complainant from defendant.

Accordingly, counts 1-3 are dismissed without prejudice. As counts 1-3 have been dismissed, the court need not reach defendant's argument for dismissing those charges as facially insufficient. This dismissal does not bar the People from filing any subsequent information or prosecutor's information under CPL § 100.50 or moving to add any charges under CPL § 100.45 (3).

III. Complainant's Domain Awareness Report

Defendant requests that the court order the People to disclose to defendant an unredacted copy of the Domain Awareness System (hereinafter "DAS") report for complainant, stating that a redacted version of this report was disclosed to defendant along with the People's COC. Defendant further states the redacted materials may contain potential impeachment material of complainant, who is designated to testify at trial. In the alternative, defendant seeks an in camera review of the report by the court. The People state that their redactions fall within permissible redactions as described in CPL § 245.20 (6) (a). The court notes that in the People's March 24, 2026, COC, there is a disclaimer on the first page of the People's COC, which reads,

"Please note: If an item listed below contains a redaction, and the reason for the redaction is not apparent from the document itself (e.g., the redaction appears in a space for a home address), the reason for the redaction is that the redacted content is not related to the subject matter of the case. See C.P.L. § 245.20(6). If there is another reason for the redaction, it will be noted by the listed item. If counsel has any questions regarding the basis for any redactions, the People are available to confer,"

(italics are original to the disclaimer).

DAS reports query the history of either an individual's or an address's NYPD involvement and are generally produced by the NYPD in connection with an ongoing investigation. When a DAS report is produced in connection with the prosecution of a criminal case, it is automatically discoverable pursuant to CPL § 245.20 (1) (e). The scope of the People's obligations regarding disclosure of impeachment material is broad, as it extends to all evidence that tends to "impeach the credibility of a testifying prosecution witness," (CPL § 245.20 [1] [k] [iv]). Additionally, "impeachment evidence may be considered favorable to defendant even if it is not material to the defendant's case," (People v Garrett, 23 NY3d 878, 886 [Ct App 2014]).

As it relates to redactions, pursuant to CPL § 245.20 (6) (a),

"Either party may redact the following without the need to move for a protective order pursuant to section 245.70 of this article: social security numbers; tax numbers' the physical addresses or other forms of contact information of witnesses ; and material or information not otherwise required to be disclosed under subdivision one of this section, so long as the party making redactions based on the material not being required to be disclosed under subdivision one of this section provides the underlying reason for the redactions."

All other redactions require a party to seek a protective order from the court.

The People state the redactions they made to complainant's DAS report before disclosing it to defendant pertained to sensitive personal information and information that is unrelated to the subject matter of the case, such as "sealed arrests, moving violations, accidents, identification numbers, etc.," (People's Memorandum of Law at III.² ).

The court orders the People to disclose to the court, within ten days of the issuance of this decision, the redacted version of complainant's DAS report disclosed to defendant and the unredacted version, with explanations for under what basis each redaction was made, for the court to conduct an in camera review of the People's redactions.

IV. Additional Motions and Requests by Defendant

In addition to challenging the facial sufficiency of the accusatory instrument and requesting the court order the People to disclose an unredacted DAS report for complainant, defendant seeks a number of pre-trial hearings and court orders. Defendant states the People have served on defendant statement notice pursuant to CPL § 710.30 (1) (a) and moves for suppression of those statements, or in the alternative, for Dunaway and Huntley hearings (Dunaway v New York, 442 US 200 [1979]; People v Huntley, 59 NY2d 868 [Ct App 1983]). Defendant states in his motion and the People confirm in their opposition that the People have provided written consent to Dunaway and Huntley hearings (id). Defendant moves for suppression of the fruits of defendant's alleged unlawful arrest within his home, or in the alternative, seeks a Payton hearing, writing that defendant was arrested in his home after NYPD officer broke down the door of defendant's apartment and entered his home without either warrant or consent, seizing defendant (People v Payton, 445 US 573 [1980]). Defendant writes in his motion that the People had declined to consent to a Payton hearing (id). In their opposition, the People consent to a Payton hearing (id). Accordingly, Dunaway, Huntley, and Payton hearings are ordered (Payton, 445 US 573; Dunaway, 442 US 200; Huntley, 59 NY2d 868).

Defendant additionally seeks preclusion of any statements or identifications which do not correspond to notices served on him pursuant to CPL § 710.30, and requests Sandoval and Molineux hearings (People v Sandoval, 34 NY2d 371 [Ct App 1974]; People v Molineux, 168 NY 264 [Ct App 1901]; see People v Ventimiglia, 52 NY2d 350 [Ct App 1981]). The question of preclusion of evidence not properly noticed is deferred to the hearing and trial judge. Finally, defendant's motion for Sandoval and Molineux hearings are premature and must be deferred to the trial judge (Sandoval, 34 NY2d 371; Molineux, 168 NY 264). The People are reminded that they must make Sandoval and Molineux disclosures as soon as practicable, but no later than fifteen days before the first scheduled trial date (CPL § 245.20 [3] & 245.10 [1][b]).

This constitutes the decision and order of the Court.

Dated: August 10, 2026

Kings County, New York

Hon. Nancy Fayed Carrington

Judge of the Criminal Court

FOOTNOTES

1.   In the interest of privacy, the court has removed the complainant's name, the complainant's minor child's name, and that child's date of birth from the text of the accusatory instrument that is included in this decision.

2.   The People's opposition is not properly paginated. This quotation can be found on page 12 of 31 of the People's filing, which includes their Affirmation, Memorandum of Law, and Exhibits.

Nancy Fayed Carrington, J.