The People of the State of New York, Plaintiff, v. Davaun Fournillier, Defendant. (2026)

The defense moves for an order dismissing the information pursuant to CPL § 30.30 on the basis that the People have "improper[ly] attempt[ed] to change the factual theory of their case from the one alleged in the accusatory instrument," thereby rendering their prior statements of readiness invalid (defense motion, p. 1). Alternatively, the defense moves to invalidate the People's certificate of compliance (COC) or for discovery sanctions pursuant to CPL § 245.80 because the People delayed production of exculpatory material discoverable under CPL § 245.20 (1) (k) and Brady v Maryland, 373 US 83 (1963). In opposition, the People argue that their trial theory will not vary from the allegations set forth in the information, that the COC challenge is procedurally barred pursuant to CPL § 245.50 (4) (c), and that the defense is not entitled to sanctions as they have not demonstrated prejudice resulting from the delayed discovery production.

I. Relevant Procedural History

The defendant is currently charged with one count of PL § 120.00 (1) for allegedly striking and pushing the complainant on August 14, 2025, resulting in lacerations to the complainant's head, ear, and forehead.

On August 25, 2025, the defendant was arrested, and the People filed a felony complaint charging him with attempted assault in the first degree under PL §§ 110/120.10 (1) ("[w]ith intent to cause serious physical injury to another . . . caus[ing] such injury . . . by means of a deadly weapon or a dangerous instrument"); and with assault in the second degree under PL § 120.05 (1) ("[w]ith intent to cause serious physical injury to another . . . caus[ing] such injury"). The factual portion of the complaint alleges in relevant part that:

Informant 1 . . . observed the defendant approach him[.] . . . [H]e then turned around, away from the defendant, and then felt a strike to the back of his head and right ear consistent with being slashed with a sharp object. . . . [H]e then felt a push to his back which caused him to fall forward and hit his head on a counter.

(Complaint, p. 1, available in court file).

On August 26, 2025, the defendant was arraigned on the felony complaint. At the criminal court arraignment, the People asserted that the defendant "slashed [the victim] across the back of the head with a sharp object" and requested bail (arraignment transcript, 3:19-20). In response, defense counsel presented a detailed factual account of the incident, asserting that, after an earlier altercation, the complainant approached the defendant "with scissors in his hand," causing the defendant to be "in reasonable fear," at which point the defendant "punche[d] the complainant in the face," causing the complainant to "fall[ ] back and hit[ ] his head" (id., 7:11-8:12). The defendant was released on his own recognizance, and the court adjourned the case to October 7, 2025, for grand jury action.

That same day, a detective with the NYPD obtained video surveillance footage of the incident from the barber school — the location of the alleged incident. That detective then provided that video to the People.

On August 27, 2025, defense counsel spoke with the assigned assistant district attorney (ADA) on the case. The ADA told him that she already had surveillance of the incident, that the video was not clear but appeared consistent with the complainant's version of events, and that she would not produce the video at that time. During that same conversation, defense counsel agreed to waive speedy trial time from arraignment until the next court date of October 7, 2025. Over the next few weeks, defense counsel repeatedly requested the video from the People and also attempted to obtain it from the barber school.

On September 18, 2025, defense counsel sent a formal letter requesting the video, characterizing it as Brady material and as discoverable pursuant to CPL § 245.20 (1) (k). The ADA responded via email: "I will not be disclosing any video at this time. Please let me investigate this matter." (Defense motion, exh 2, p. 1.) Defense counsel requested an explanation for the refusal, but there is no indication that the ADA responded. To date, the People have not offered any further explanation for their prior refusal to produce the video.

On October 7, 2025, the People moved to dismiss and reduce the charges to a single misdemeanor charge of PL § 120.00 (1). The People also filed and served a supporting deposition and an affidavit of translation, converting the misdemeanor complaint to an information. The court then adjourned the case to December 1, 2025, for trial.

The matter was reassigned to the current prosecutor, and on October 24, 2025, the People began producing discovery. This initial production included the surveillance video footage that the prior ADA had refused to disclose. Over the next several weeks, the People continued to obtain and produce discovery.

On December 1, 2025, the People were not ready for trial. The case was adjourned to January 12, 2026, for trial.

On December 13, 2025, the People produced additional discovery and filed and served a COC and certificate of readiness (COR).

On January 12, 2026, the People answered ready for trial, and the defense requested an adjournment for motion practice. The court adjourned the case to March 30, 2026, for decision.

The defense did not file any motions at that time.

On January 26, 2026, the defense produced reciprocal discovery and filed a COC.

On March 30, 2026, the case was adjourned to May 18, 2026, for trial.

On May 18, 2026, both parties answered ready for trial, but due to court congestion, no court parts were available for a trial. The court adjourned the case to July 21, 2026, for trial.

On July 21, 2026, both parties were again ready for trial, but due to court congestion, no court parts were available. The court adjourned the case to August 3, 2026, for trial.

On August 2, 2026, in an email to the court addressing pretrial matters, the People summarized the facts of the case, stating that the defendant punched the complainant in the back of the head. Defense counsel argued in response that the People's statement that the defendant "punched" rather than "slashed" the complainant constituted an impermissible change in theory from what is alleged in the information.

On August 3, 2026, the parties answered ready for trial. However, after both parties presented their respective positions regarding the alleged change in theory, the defense requested an opportunity to file a motion to dismiss pursuant to CPL § 30.30. The court adjourned for decision.

On August 10, 2026, the defense filed the instant motion. On September 1, 2026, the People filed their opposition, and on September 9, 2026, the defense filed a reply.

II. The Alleged Change in Theory

The defense argues that the People intend to present a factual theory at trial that is at odds with the allegations contained in the information. The change from a "slashing" to a "punching" theory, the defense argues, would violate the rule that the People cannot specify one theory of a crime in an accusatory instrument, and then "present proof at trial that virtually rule[s] out that theory . . . and substitute[ ] another one" (People v Grega, 72 NY2d 489, 498 [1988]). The defense further argues that any such change must be accomplished through the filing of a superseding information (SSI), citing People v Hardy, 35 NY3d 466 (2020). Finally, the defense argues that the People's prior statements of readiness were illusory because they had not filed an SSI properly alleging the factual theory they intended to present at trial, primarily citing People v Curtis W., 89 Misc 3d 835 (Crim Ct, NY County 2026). The People disclaim any intent to present evidence at trial that contradicts the specific factual allegations in the information.

Indeed, the defendant's argument fails at this threshold step: nothing indicates that the facts the People intend to prove at trial differ materially from those alleged in the information. The confusion appears to stem in part from the defense's application of Grega, which addressed indictments, to a misdemeanor information, without accounting for the different rules of form and content that govern each. An indictment must contain a "plain and concise factual statement in each count which, without allegations of an evidentiary nature, [ ] asserts facts supporting every element of the offense charged . . . with sufficient precision to clearly apprise the defendant . . . of the conduct which is the subject of the accusation" (CPL 200.50 [7] [a] [emphasis added]). By contrast, an information must contain a factual part with "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3] [emphasis added]). An indictment's factual statement expressly sets out the theory of the crime on which the grand jury voted. An information's factual part, by contrast, is akin to the evidence presented to the grand jury: it alleges facts but need not state all the inferences and conclusions that constitute the theory of the crime (see, e.g., People v Dreyden, 28 Misc 3d 5, 8 [App Term, 2d Dept 2010] [comparing factual allegations in an information to grand jury testimony, and explaining that an element need not be specifically alleged if it can be inferred]).

Another source of confusion appears to be the defense's assumption that an information must specify the precise mechanism by which an assault occurs (defense reply, fn 4 [claiming, without citation, that "the law requires the People to specify their factual theory in the accusatory instrument"]). So long as the information provides reasonable cause to believe that the defendant committed an assault and establishes a prima facie case of assault, no further specificity is required (see CPL 100.40 [1]). For instance, a complainant's admission that they did not know whether the defendant used a weapon would not render defective an information charging assault in the third degree under PL § 120.00 (1) because use of a weapon is not an element of that offense.

With these considerations in mind, the complainant's allegation that he "felt a strike to the back of his head and right ear consistent with being slashed with a sharp object" cannot be read as more than a description of his subjective experience of the strike. Read literally, the statement asserts only that the strike felt consistent with being slashed with a sharp object, not that a sharp object was used. Indeed, absent supporting eyewitness, medical, or forensic evidence, it is not clear that this sensation would provide reasonable cause to believe that the defendant in fact used a weapon. A feeling "consistent with being slashed" is most naturally read as describing a sharp, intense pain, and a person could plausibly feel such pain from a closed-fist punch. Thus, the factual allegation in the information regarding how the strike felt is not inconsistent with the theory the People intend to present at trial. Suppose the complainant testifies to exactly the facts set forth in the information, including that the strike felt consistent with being slashed. The People then play surveillance footage that does not appear to show any sharp object in the defendant's hand. Finally, in closing, the People concede that, despite the sharp pain the complainant described, the evidence establishes nothing more than a punch. In what sense has a variance occurred if the complainant's testimony matches the allegations in the information and nothing in the People's evidence is irreconcilable with his testimony?

As the information stands, nothing in it implies that the People have formally adopted, or intend to present at trial, a theory that the defendant slashed the complainant with a sharp object. It is true that the felony complaint, before it was amended to a misdemeanor complaint and then converted to an information, alleged as much. By charging PL §§ 110/120.10 (1), the People initially alleged that the defendant caused the complainant's injury "by means of a deadly weapon or a dangerous instrument." But when the People moved to dismiss this charge, they removed the only part of the accusatory instrument that committed them to the theory that the defendant used a weapon. The resulting information does not specify the precise mechanics of the assault. In analyzing the information, the court is limited to the four corners of the instrument (People v Hardy, 35 NY3d 466, 475 [2020]). Neither the People's oral representations at arraignment nor the charges listed in the prior felony complaint are part of the information, and it is the information, not those earlier statements or instruments, against which any variance must be measured.

Moreover, the assumption that the defense can challenge an impermissible variance before trial has limited support. In nearly every case addressing this issue, including every case cited in the "Case Illustrations" section of the defendant's motion (defense motion, 14-16), the variance was raised during trial, when the court had the benefit of hearing the evidence presented. Here, the defense repeatedly asserts that the People have changed their theory, while the People respond, in essence, that their trial evidence will be consistent in every material respect with the evidentiary allegations in the information. It is not clear how the court could resolve this dispute before trial. In Curtis W., the only case the defense cites that arguably found an impermissible variance prior to trial, the People conceded that the date alleged was inaccurate and that their trial evidence would differ from the allegations in the accusatory instrument (89 Misc 3d, 836-837). The People make no such concession here; they deny that any variance will occur, and the defense has not shown otherwise.

Of course, the defense may object at trial if the People's evidence varies materially and prejudicially from the allegations in the information. At this stage of the case, however, the People's statements about their current theory do not appear to vary impermissibly from the facts alleged in the information. The defense motion to invalidate the People's prior statements of readiness on this basis is therefore DENIED.

III. COC Challenge and Discovery Sanctions

The defense next argues that the People committed a discovery violation by unnecessarily delaying production of materials discoverable under CPL § 245.20 (1) (k), in particular surveillance video footage that, according to the defense, depicts the defendant punching, not slashing, the complainant in the back of the head. The defense asks the court to invalidate the People's COC and impose sanctions under CPL § 245.80, including dismissal. The People oppose, arguing that the COC challenge is untimely and that sanctions are unwarranted because the defense has not demonstrated prejudice.

First, the People are correct that the COC challenge is untimely (see CPL 245.50 [4] [c]). A COC challenge must be filed within 35 days after service of the COC (id.). The People filed and served their COC on December 13, 2025, but the defense did not file their challenge until August 10, 2026, nearly eight months later. Moreover, the defense did not request a good-cause extension of the deadline. Nor has the defense established any change in circumstances that would justify the late filing under CPL § 245.50 (4) (c) (ii). The defense received all the CPL § 245.20 (1) (k) materials raised in the defense motion before that date. The surveillance video that the People refused to disclose on September 18, 2025, was produced on October 24, 2025. The defense thus had all of the information they needed to raise the current COC challenge within the time limit, but they failed to do so. As such, the COC challenge is DENIED.

Next, the defense requests sanctions under CPL § 245.80. As an initial matter, there is little question that the People violated their statutory obligations under Article 245. The People concede that the withheld video showed that "the mechanism of [the] assault was a fist rather than a weapon" and that the video was discoverable under CPL § 245.20 (1) (k) (People's opp, p. 25). Regarding such material, the statute is explicit: "[t]he prosecutor shall disclose the information [discoverable under this subsection] expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in [CPL § 245.10 (1)]" (CPL 245.20 [1] [k]). Particularly after defense counsel requested the video and explained why he believed it was exculpatory, the People were not permitted to withhold it.¹ The ADA then handling the case stated only that she wanted to further "investigate this matter," which is not a satisfactory answer. If anything, her refusal to produce the video suggests that she wanted to figure out if she could explain away the apparent discrepancy before the defense could make use of it.

Wisely, the People do not now defend the prior ADA's conduct. Instead, they argue only that sanctions are unwarranted because the defense has not established prejudice. The court agrees. The defense has not established any prejudice from the delayed disclosure of the surveillance video or any other material discoverable under CPL § 245.20 (1) (k). The only prejudice the defense asserts is that they spent almost a year preparing to defend a "slashing" theory at trial. That harm, however, did not result from the delayed disclosure. The defense has had the surveillance video and other CPL § 245.20 (1) (k) material for most of that same year, and, by their own account, anticipated making it an important part of their trial defense (see defense motion, p 35). Rather, the asserted prejudice stems from the defense's misreading of the information and the applicable case law, which, as discussed above, do not bind the People to a slashing theory. Moreover, any prejudice that could have resulted from the delayed disclosure has been remedied by the dismissal and reduction of the felony charges and the ample time the defense had to use the materials. The defense also received an adjournment after the People confirmed that they do not intend to present a slashing theory at trial, and they will receive another pretrial adjournment following this decision.

Thus, while the court strongly disapproves of the prior ADA's refusal to promptly produce exculpatory evidence, the defense has not demonstrated that they are entitled to relief under CPL § 245.80. The motion for sanctions is therefore DENIED.

IV. CPL § 30.30 Motion to Dismiss

In this case, in which the defendant was originally charged with a felony but is now charged with an A misdemeanor and no felonies, the People must be ready for trial within 90 days of the replacement of the felony complaint with a misdemeanor accusatory instrument (CPL 30.30 [1] [b], [7] [c]). The total chargeable time measured from the commencement of the criminal action also must not exceed six months (CPL 30.30 [7] [c]).

This criminal action commenced on August 25, 2025. Defense counsel waived speedy trial time from the criminal court arraignment through the next court date of October 7, 2025. On that date, the People converted the felony complaint to a misdemeanor complaint and subsequently to an information. The case was then adjourned for trial to December 1, 2025. That day, the People were not ready for trial, and the case was adjourned to January 12, 2026, for trial. The People then filed a valid COR on December 13, 2025.

No additional time is chargeable. The defense has not established any impediment to the People's readiness, nor have they established that the People are responsible for any post-readiness delay (People v Brown, 28 NY3d 392, 404 [2016]).

Thus, whether measured from the commencement of the action or the reduction of the felony complaint to a misdemeanor complaint, the only chargeable time is the 67-day period from October 7, 2025, to December 13, 2025.²

The defendant's motion to dismiss is therefore DENIED.

This constitutes the decision and order of this court.

Dated: September 18, 2026

New York, NY

Ilona B. Coleman, J.C.C.

FOOTNOTES

1.   The court has not reviewed the video but, again, the People have conceded that it did not support the theory that the defendant slashed the complainant with a sharp object. The People have not presented any legal basis for the delay in disclosure, and the court assumes from their silence that there was none.

2.   Arguably, one day would be chargeable from the filing of the felony complaint through the criminal court arraignment. However, the defense has not alleged that the day is chargeable, and the single day would not affect the court's analysis.

Ilona B. Coleman, J.