The People of the State of New York, v. Angel Toribio, Defendant. (2026)

Defendant Angel Toribio moves to dismiss the accusatory instrument based upon the purported facial insufficiency of one count of the complaint, Penal Law ("PL") § 121.11 (a), pursuant to Criminal Procedure Law ("CPL") §§ 100.40, 100.15, 100.20, 170.30 (1) (a), and 170.35; or in the alternative, for an order suppressing statement and identification evidence, or a Huntley/Dunaway hearing; for an order precluding evidence of his prior convictions and bad acts, or a Sandoval/Ventimiglia/Molineux hearing; and for an order granting defendant's reservation of right to file additional motions.

Upon review and consideration of the submissions, court file and relevant legal authority, the Court DENIES defendant's motion for dismissal of the count charging PL § 121.11 (a); and further holds that:

The prosecution pursuant to CPL §§ 170.30 (1) (e) and 30.30 (1) (b) was TIMELY; and defendant's motion to dismiss the accusatory instrument is DENIED; and

Defendant's request for a pre-trial hearing pursuant to Huntley/Dunaway, and the right to make further motions to the extent provided by CPL § 255.20 (3), is GRANTED; and

The People are DIRECTED to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady/Vilardi disclosures; and

Defense counsel is DIRECTED to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL §§ 245.20 (4) and 245.50 (2); and

There are NO unresolved issues that warrant a hearing on the underlying facts pursuant to People v Allard; and

Sandoval/Ventimiglia/Molineux issues are REFERRED to the trial court.

RELEVANT PROCEDURAL BACKGROUND

On February 6, 2026, defendant Angel Toribio was arrested and charged with violating multiple offenses, including PL §§ 121.11 (a), (criminal obstruction of breathing or blood circulation), a felony. Defendant was arraigned on February 8 and held in custody until he was released on bail on March 6.

The People filed and served their automatic disclosures, Certificate of Compliance ("CoC") and Statement of Readiness ("SoR") off-calendar March 7, 2026. Additionally, the People filed and served their Superseding Information ("SSI") on March 9, partly based upon allegations previously outlined in a Domestic Incident Report ("DIR") sworn to on February 6. At the appearance held on March 26, the court deemed the complaint an information. At the appearance held on March 30, the court deemed the CoC valid and set the instant motion schedule. Defendant's omnibus motion was filed on April 14, which the People opposed on April 28, 2026.

DISCUSSION

The SSI

In pertinent part, the SSI, dated March 3, 2026, provides:

PO JEFFERSON RIVERA of 43 PCT, Shield# 25959, states that on or about February 6, 2026 at approximately 8:05 PM inside of 1037 Evergreen Avenue Apt# 1, County of the Bronx, State of New York, [ ]

IN THAT DEFENDANT DID: with intent to impede the normal breathing or circulation of the blood of another person, he or she applies pressure on the throat or neck of such person; knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or direct or authorize such child to engage in an occupation involving a substantial risk of danger to his/her life or health; attempted to intentionally cause physical injury and after being informed of the consequences of such act, he or she knowingly misrepresents his or actual name, date of birth or address to a police officer or peace officer with intent to prevent such police officer or peace officer from ascertaining such information.

Deponent states, upon information and belief, the source of which is the Domestic Incident Report being filed contemporaneously with this complaint, dated February 6, 2026, subscribed by K.D.,¹ that: MY MOM CALLED ME SAYING ANGEL TORIBIO WAS AT HER HOUSE ASKING TO SEE THE BABY I SAID OKAY AS SOON AS [sic] HERE TO MY HOUSE HE STARTED YELLING THREATING [sic] ME AND THE BABY SAYING TO LET HIM HOLD THE BABY WHEN I DID HE SAID HE WAS GOING TO THROW THE BABY DOWN THE THE [sic] WINDOW THAT IS WHEN I CALLED POLICE AND MY MOM TO COME [sic] KNOW HE THEN STRANGLE ME AND SCRATCH ME IN MY FACE THEN HE SAID HE WAS GOING TO TAKE MY DOG STARTED DISRESPECTING MY MOM AND DAD BRAKING [sic] THINGS ALSO THREATHING [sic] MY MOM SAYING I KNOW WHERE YOU LIVE HE WAS WITH A SCISSOR THE WHOLE TIME ASKING FOR THE BABY.

Deponent further states that upon his arrival at 8:51 PM to the aforementioned location, approximately 45 minutes after the aforementioned incident occurred, deponent observed redness and scratch marks to the right side of K.D.'s face as well as redness to the right side of K.D.'s neck.²

I. Applicable Standard for Facial Sufficiency Challenge

To meet the jurisdictional standard for facial sufficiency, an information "need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" (see People v Smalls, 26 NY3d 1064, 1066 [2015]; see also CPL § 100.40 [1] [b]; § 70.10). The accusatory instrument must set forth non-hearsay facts of an evidentiary nature which, if true, establish every element of the offense charged (see People v Suber, 19 NY3d 247 [2012]; People v Dumas, 68 NY2d 729 [1986]). It is well-settled that "mere conclusory allegations are insufficient [ ] and a purported information which fails to meet these requirements is fatally defective" (see People v Pamulo, 48 Misc 3d 1227 [A], 2015 NY Slip Op 51286 [U], **2 (Crim Ct, New York County 2015] [citations omitted] citing People v Alejandro, 70 NY2d 133, 136 [1987]).

II. The Parties' Arguments

Defendant

Defense counsel asserts that the statements proffered in the DIR should not suffice to convert the misdemeanor complaint into an information because the DIR fails to set forth non-hearsay factual allegations supporting the elements of the criminal obstruction charge (defense memorandum of law at 8). Specifically, counsel maintains that both the accusatory instrument and the DIR merely set forth conclusory characterizations rather than factual accusations suggesting that the complainant's breathing was impeded by defendant's purported conduct or that defendant acted intentionally to cause any such impairment (defense memorandum of law at 9). Defendant further posits that "given her lack of cooperation with this case," this Court has reason to doubt the credibility and reliability of the complainant and the accusatory instrument (defense memorandum of law at 5).

According to defense counsel, the bare assertion from the DIR that defendant strangled the complainant cannot sustain the People's CPL §§ 100.15 and 100.40 (1) (c) prima facie burden of proof and, thus, the prosecution cannot credibly declare trial readiness pursuant to CPL § 245.50 (5-a) (defense memorandum of law at 9-10). Lastly, defendant moves to suppress statements and preclude evidence of prior bad acts and convictions or seeks hearings pursuant to Huntley/Dunaway and Sandoval/Ventimiglia/Molineux (defense memorandum of law at 10-12).

The People

The People note that a DIR is a document signed by a complainant under penalty of perjury and, as such, can function as a supporting deposition even where the facts outlined in the DIR do not mirror those in the misdemeanor complaint (People's memorandum of law at 8). Further, the People aver that the factual allegations adopted from the DIR concerning defendant's conduct, to wit: placing his hands around and squeezing the complainant's neck, coupled with the statement from the deponent/police officer that he observed redness around the complainant's neck, suffice to establish the prima facie elements of PL § 121.11 (a), including defendant's intent (People's memorandum of law at 9).

The prosecution also maintains that the complainant's use of the word "strangle" in the DIR statement is not conclusory but rather a colloquial description of what defendant did to her (People's memorandum of law at 10-11). Additionally, the People state that they consent to defendant's request for a Huntley hearing, deny that there are facts that warrant a Dunaway hearing, and oppose defendant's motion to preclude evidence of prior arrests, convictions, and bad acts, and ask that Sandoval/Ventimiglia/Molineux issues be referred to the trial court (People's memorandum of law at 11-14). Lastly, the People also oppose defendant's reservation of rights to file additional motions (People's memorandum of law at 14).

III. The Court's Analysis

Criminal Obstruction of Breathing or Blood Circulation

Penal Law § 121.11 (a) provides that "[a] person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person [ ], that person "applies pressure on the throat or neck of such person [or] blocks the nose or mouth of such person" (see PL § 121.11 [a]). New York Criminal Jury Instructions ("CJI") further provides, in pertinent part, that "INTENT means conscious objective or purpose. Thus, a person acts with intent to impede the normal breathing or circulation of the blood of another person when his or her conscious objective or purpose is to do so" (see (CJI2d[NY] Penal Law § 121.11 [a], https://www.nycourts.gov/judges/cji/2-PenalLaw/121/121-11(a).pdf [last accessed August 10, 2026]).

Domestic Incident Reports

As a threshold matter, there is no statutory requirement that a supporting deposition be a literal match to the allegations in the misdemeanor complaint for the former to convert the latter (see CPL § 100.20; see also People v Morris, 44 Misc 3d 810, 815-816 [Crim Ct, New York County 2014] [DIR converted Information where they both referred to the same incident, and the properly verified DIR contained factual allegations of an evidentiary character]; see People v Modica, 187 Misc 2d 635, 639 [Crim Ct, Richmond County 2001] [A court should examine the non-hearsay facts of a DIR to determine whether they make out the elements of the charged offense when considering the DIR as a supporting deposition]).

Here, the DIR was signed by the complainant under penalty of punishment pursuant to PL § 210.45, and it describes the same incident as alleged in the complaint. Moreover, the record demonstrates that the DIR alleges non-hearsay allegations which support the elements of the charged count. Initially, the "Incident Narrative" section includes the complainant's accusation that defendant placed his hands on her neck and jaw which caused pain and scratches, and the "Statement of Allegations/Supporting Deposition" section, apparently written in her own hand, includes the complainant's accusation that defendant "strangle [sic] me and scratch me in my face" (see People v Reyes, 43 Misc 3d 1225[A], 2014 NY Slip Op 50789[U], * 4 [Crim Ct, New York County 2014] [Complainant's subjective description of defendant's conduct established elements of PL § 121.11 [a]0).

Facial Sufficiency of the Count

When read together with the misdemeanor complaint, which provides that "Deponent is further informed by informant that deponent proceeded to place two (2) hands around informant's neck and squeezed informant's neck, causing her to experience difficulty breathing," the Court finds the factual allegations sufficient to establish a prima facie case that defendant applied pressure to the complainant's neck with the intent to impede her normal breathing (compare People v Diaz, 48 Misc 3d 1208[A], 2015 NY Slip Op 51009[U], *2 [Crim Ct, New York County 2015] ["A fact of an evidentiary character is a nonconclusory description of what the deponent personally observed, heard or experienced"] [internal quotations omitted], with People v George, 37 Misc 3d 1231[A], 2012 NY Slip Op 52250[U], *4 [Crim Ct, Queens County 2012] [The supporting deposition "fails to supply first-party evidentiary facts which corroborate the remaining hearsay allegations"]; see also People v Sesay, 61 Misc 3d 128[A], 2018 NY Slip Op 51366[U], *2 [App Term, 1st Dept 2018]). At bar, Police Officer Jefferson's sworn statement asserts that he witnessed the complainant suffer "redness and swelling in her neck," as well as minor lacerations to her face and neck. These are tangible and conspicuous characteristics that a jury could reasonably infer were consistent with conduct that violated PL § 121.11 (a).

Additionally, the Court is persuaded that, at the pleading stage, the complainant's claim that defendant strangled her is a factual allegation. Indeed, the verb "strangle" is interchangeable with the word "choke," which courts have held to have sufficed to establish that a defendant intended to impede a victim's normal breathing (see Merriam-Webster.com Dictionary, strangle [https://www.merriam-webster.com/dictionary/strangle]; see also People v Espinoza, 67 Misc 3d 145[A], 2020 NY Slip Op 50805[U], *1 [App Term, 1st Dept 2020] [The defendant threw the victim to the ground and choked her] [emphasis added]; see also People v Rubackin, 53 Misc 3d 154[A], 2016 NY Slip Op 51737[U], *2 [App Term, 2d Dept 2020, 9th and 10th Jud Dists 2016] [The supporting deposition alleged that the defendant had choked the victim and was held sufficient to establish the elements of PL § 121.11 (a)] [emphasis added]).

Evaluating the four corners of the SSI, accompanied by the sworn DIR, viewed in the light most favorable to the People, and rejecting an "overly restrictive or technical reading," the factual allegations that defendant strangled and scratched the complainant who sustained observable redness and swelling of her neck and minor lacerations of her face and neck, establish a prima facie case to believe that defendant acted intentionally to impede the complainant's normal breathing by applying pressure to her throat and neck (see People v George, 2012 NY Slip Op 52250[U], *4). Accordingly, this Court finds that pursuant to CPL § 100.40 (1) (c) and § 100.15 (3), the count charging PL § 121.11 (a) is facially sufficient.

Also, the Court notes that in support of the motion to dismiss, counsel contends that defendant "specifically challenges the credibility and reliability of the complainant, especially given her lack of cooperation in this case" (see defendant's memorandum of law at 5). However, this contention is wholly inapposite to the issues at bar and outside the scope of the analysis required for a facial sufficiency motion where the Court is constrained to evaluate the four corners of the complaint. Besides, even if true, there are myriad reasons why a complainant declines to cooperate with a criminal prosecution, including fear of reprisal, economic anxiety/dependency, and system fatigue (see L. Goodman, L. Bennett, and M. A. Dutton. Obstacles to Victims' Cooperation with the Criminal Prosecution of Their Abusers: The Role of Social Support. Violence Vict. National Institutes of Health, 1999; Winter 14[4]: 427-44 https://pubmed.ncbi.nlm.nih.gov/10751049).

It strains credulity to argue, as defense counsel does, that defendant would challenge the sufficiency of the accusatory instrument based upon the unreliability of a supposedly non-cooperating complainant where the jury alone is charged with assessing witness credibility.

The CPL § 30.30 Calculation

Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; see also People v Stiles, 70 NY2d 765, 767 [1987]). Accordingly, the People's speedy trial time began to accrue on February 9, 2026, the day following defendant's arraignment. The People validly declared readiness for trial by filing their CoC and SoR on March 7, 2026 (February 9, 2026 — March 7, 2026 = 26 days), within their statutorily allotted time (see CPL § 30.30 [1] [b]). Defendant's motion to dismiss the accusatory instrument is denied.

CONCLUSION

Based upon the foregoing, the Court DENIES defendant's motion for dismissal of the count charging PL § 121.11 (a); and further holds that:

The prosecution pursuant to CPL §§ 170.30 (1) (e) and 30.30 (1) (b) was TIMELY; and defendant's motion to dismiss the accusatory instrument is DENIED; and

Defendant's request for a pre-trial hearing pursuant to Huntley/Dunaway, and the right to make further motions to the extent provided by CPL § 255.20 (3), is GRANTED; and

The People are DIRECTED to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady/Vilardi disclosures; and

Defense counsel is DIRECTED to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL §§ 245.20 (4) and 245.50 (2); and

There are NO unresolved issues that warrant a hearing on the underlying facts pursuant to People v Allard; and

Sandoval/Ventimiglia/Molineux issues are REFERRED to the trial court.

This constitutes the opinion, decision, and order of the Court.

Dated: August 13, 2026

Bronx, New York

HON. YADHIRA GONZÁLEZ-TAYLOR, A.J.S.C.

FOOTNOTES

1.   For privacy considerations, the complainant's name has been redacted pursuant to Rule 12.4 (f) of the Official New York Law Reports Style Manual.

2.   The SSI, which does not include all of the offenses in the initial accusatory instrument, charges one count each PL §§ 121.11 (a), 260.10 (1) (endangering the welfare of a child), 110/120.00 (1) (attempted assault in the third degree) and 190.23 (false personation).

Yadhira González-Taylor, J.