The People of the State of New York v. David Gonzalez, Defendant. (2026)

The defendant is charged by information with one count of Possession of Burglar's Tools (Penal Law § 140.35), Petit Larceny (Penal Law § 155.25), Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40) and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03). The defendant, in a motion dated August 12, 2026, seeks dismissal of count one of the accusatory instrument, Possession of Burglar's Tools (Penal Law § 140.35), as facially insufficient, pursuant to CPL 170.30 and 170.35, as well as dismissal of the entire accusatory instrument on statutory speedy trial grounds (CPL 170.30[1][e]; 30.30[1][b]). The People filed their motion response on August 28, 2026.

Upon review and consideration of the submissions by the parties and the law governing the charges in this matter, the defendant's motions to dismiss for facial insufficiency and on speedy trial grounds are denied.

PROCEDURAL HISTORY

The defendant was arrested on October 25, 2025 and arraigned on a misdemeanor complaint the following date on October 26, 2025 wherein he was charged with one count each of Possession of Burglar's Tools (Penal Law § 140.35), Petit Larceny (Penal Law § 155.25), Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40) and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03). The case was adjourned to December 10, 2025 for conversion. On January 23, 2026, the People served and filed a certificate of compliance ("COC") and certificate of trial readiness ("CTR"), along with two supporting depositions, signed by Officers Campanella and Affatigato, respectively, as well as a certified laboratory report confirming the controlled substance alleged to be possessed by the defendant was methamphetamine, by uploading the documents to the New York Unified Court System's Electronic Document Delivery System ("EDDS"). On July 29, 2026, after a suppression hearing was held, the People served and filed on the record a superseding information, maintaining the same charges and their readiness, but supplementing with additional factual allegations:

On October 25, 2025, at approximately 6:00 p.m., inside 2656 Hylan Boulevard, in the County of Richmond, State of New York

[Police Officer SENU VARGHESE] is informed by ROBERT CAMPANELLA that, on the above-mentioned date, time, and location, a Marshalls store, that the informant observed the defendant via video surveillance remove store property, namely, three (3) pairs of shoes, from store shelves, place said property in a black bag the defendant was carrying, and exit the location, bypassing all points of sale, with said store property and without paying for said store property.

Deponent is further informed by informant CAMPANELLA that the informant, a Marshalls employee, is a lawful custodian of the above-mentioned store property, and that the defendant had neither permission, nor authority, to take, steal, remove, move, transport, or otherwise exercise control over said store property in the manner described above.

Deponent states that the deponent observed the defendant to have in his possession, inside of a black bag that the defendant was carrying, two (2) pliers, one (1) screwdriver, one (1) pair of bolt cutters, and one (1) multitool. Deponent further states that the deponent observed the defendant to have in his possession, inside of the bags the defendant was carrying, three (3) pairs of shoes with tin foil wrapped around their security tags.

Deponent further states that the above-mentioned two (2) pliers, one (1) screwdriver, one (1) pair of bolt cutters, one (1) multitool, and tin foil are tools designed or commonly used for committing or facilitating offenses involving forcible entry into premises or offenses involving larceny by physical taking.

Deponent further the deponent observed the defendant to have in his possession, inside of the defendant's upper left jacket pocket, one (1) glass pipe containing a black, tarry residue.

Deponent further states that he has reviewed the attached New York City Police Department, Police Laboratory, Controlled Substance Analysis Section, Laboratory Report 2025- 042533, wherein the contents the above-described glass pipe was analyzed and said contents were identified to be METHAMPHETAMINE.

However, while the People maintained their readiness on the record, they failed to file a certification, pursuant to CPL 30.30(5-a). On the same date, the defendant requested a motion schedule. As indicated above, the defendant filed the instant motion on August 12, 2026, and the People filed their response on August 28, 2026.

FACIAL SUFFICIENCY

Facial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution. See People v Alejandro, 70 NY2d 133, 139 (1987); People v Hall, 48 NY2d 927 (1979). A charging instrument must contain two parts: an accusatory part and a factual part. CPL 100.15(1); People v Case, 42 NY2d 98, 99-100 (1977). The accusatory part "must designate the offense or offenses charged." CPL 100.15(2). The factual section must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15[3]) and "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part" (CPL 100.40[1][b]).

An information is sufficient on its face when, together with any supporting depositions, alleges facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3), provide reasonable cause to believe that the defendant committed the offenses charged in the information and include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1)(a)-(c).

The Court, when determining an information's sufficiency, views the factual allegations as true (CPL 100.40[1][c]) and considers all reasonable inferences that may be drawn from these facts (People v Jackson, 18 NY3d 738, 747 [2012]; People v Konieczny, 2 NY3d 569, 575 [2004]). The People have the burden to ensure that the information is facially sufficient (see People v Jones, 9 NY3d 259, 261 [2007]) and conclusory allegations are insufficient (People v Dreyden, 15 NY3d 100 [2010]; People v Kalin, 12 NY3d 225, 229 [2009]; People v Dumas, 68 NY2d 729 [1986]). The required "nonconclusory evidentiary allegations must be contained within the four corners of the instrument itself or in an annexed supporting deposition." People v Thomas, 4 NY3d 143, 146 (2005) (citations omitted); see also People v Bottari, 31 Misc 3d 90 (App Term, 2d Dept 2011).

While the burden is on the People to establish a prima facie case for the offenses charged in the accusatory instrument, this requirement "is not the same as the burden of proof beyond a reasonable doubt required at trial." Kalin, 12 NY3d at 230. Rather, "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v Casey, 95 NY2d 354, 360 (2000). To this end, the accusatory instrument must contain allegations that "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." Kalin, 12 NY3d at 230 (internal citations and quotations omitted). However, when the factual portion of the information, together with any accompanying supporting deposition and viewed in the light most favorable to the People, fails to establish every element of the offense charged with nonconclusory allegations, the information is jurisdictionally defective. See Casey, 95 NY2d at 361; Alejandro, 70 NY2d at 139-140.

Insofar as relevant here, a person is guilty of Possession of Burglar's Tools when he "possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving...larceny by a physical taking...under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character." Penal Law § 140.35. The defendant argues that the offense as charged in the instant information is facially insufficient because it lacks sufficient factual allegations that the defendant possessed the alleged instruments in a manner evincing an intent to commit a crime. The People oppose, arguing that the defendant's intent to use the alleged instruments in the commission of an offense is proved circumstantially by the remaining allegations in the complaint, specifically because the instruments were recovered when the defendant is alleged to have committed a larceny without permission or authority to take the stolen property.

Although the tools defendant possessed are normally used for innocuous purposes, and "no presumption of intent may arise from [their] mere possession" (People v Borrero, 26 NY2d 430, 434 [1970]), Penal Law § 140.35 provides that "any tool, instrument or other article...commonly used for committing or facilitating offenses involving forcible entry into premises, or offenses involving larceny by a physical taking" may be considered a burglar's tool, and "circumstantial evidence can be used to establish the requisite intent" to possess such a tool for larcenous purposes (People v Atson, 139 AD2d 520, 521 [2d Dept 1988]). Here, the superseding information alleges that the defendant possessed pliers, a screwdriver, a pair of bolt cutters, tin foil and a multitool while the defendant was observed committing a physical taking of three pairs of shoes from a store without permission or authority to take the property, without rendering payment and found in possession of three pairs of shoes with tin foil wrapped around their security tags. Thus, the facts alleged in the accusatory instrument, if true, suffice to establish that the defendant possessed the tools with that intent. See People v Davis, 155 AD2d 611, 611-612 (2d Dept 1989) (defendant's conviction for possessing burglar's tools upheld where officers found screwdrivers and a kitchen knife in the stolen vehicle that the defendant was seen driving); People v Hernandez, 127 AD2d 790, 792 (2d Dept 1987) (holding that there was sufficient circumstantial evidence for the jury to conclude that two flashlights, assorted tools, and two pairs of gloves in defendant's attache case were possessed for use in committing one of the alleged burglaries); People v Briggs, 111 AD2d 340, 341 (2d Dept 1985) (there was sufficient factual allegations for the jury to consider whether defendant possessed pliers with requisite intent to use them in furtherance of commission of crime where defendant had been seen pulling at wire mesh screen with pliers).

The defendant further moves to dismiss the remainder of the accusatory instrument on facial sufficiency grounds (CPL 170.30[1][a]; 170.35[1][a]) because the People did not file the requisite supporting depositions or laboratory report in open Court. Contrary to the defendant's contentions, the People filed the necessary supporting depositions and laboratory report by uploading the documents, along with a COC and a CTR, to EDDS on January 23, 2026. Therefore, the People properly converted the original misdemeanor complaint to a triable accusatory instrument by supplementing it with the proper supporting documents (CPL 100.20) sufficient to constitute an information (CPL 170.65).

Accordingly, considering the defendant does not raise any other grounds to strike the count of Possession of Burglar's Tools and this Court's conclusion that the allegation that the defendant possessed the alleged instruments in a manner evincing an intent to use them in the commission of an offense of such character is jurisdictionally sufficient, the defendant's motion to dismiss count one of the superseding information is denied. Further, due to this Court's finding that the People properly converted the original misdemeanor complaint, the defendant's motion to dismiss the entirety of the original accusatory instrument and the superseding information on facial sufficiency grounds is denied.

30.30 MOTION

The defendant further moves to dismiss the accusatory instrument on speedy trial grounds because the People failed to file a certification pursuant to CPL 30.30(5-a) along with the superseding information. The People oppose, arguing that the People maintained their readiness when they served and filed the superseding information in Court on July 29, 2026, the period beginning July 29, 2026 is excludable pursuant to CPL 30.30(4)(a), and, in any event, relying on a court of concurrent jurisdiction's finding in People v Aviles, 72 Misc 3d 423 (Crim Ct, Kings County 2021), the failure to file the certification pursuant to CPL 30.30(5-a) along with a superseding information is not fatal where the People have previously filed their certification. The People further served a CTR with their response to the instant motion on August 28, 2026.

CPL 30.30(5-a) provides that "a statement of readiness shall not be valid unless the prosecuting attorney certifies" that the accusatory instrument is facially sufficient. Consequently, a statement of readiness is not valid until and unless the People provide a CPL 30.30(5-a) certification, and a belated certification does not retroactively cure the People's prior statement of readiness lacking the certification. See People v Hernandez, 84 Misc 3d 10, 12 (App Term, 9th & 10th Jud Dists 2024) ("Although the People are permitted to file a certification after they have filed a [statement of readiness] such a certification does not retroactively validate a previously filed (statement of readiness.]"). Relatedly, "[T]he subsequent filing of a 5-a certification cures a defective [statement of readiness] as of the date of the 5-a filing, and the People are deemed to have stated ready for trial on that date[.]" People v Ward, 79 Misc 3d 129(A), 2023 NY Slip Op 50688(U), at *2-3 (App. Term, 2d, 11th, & 13th Jud Dists) (appeal withdrawn, 40 NY3d 952 [2023]). Furthermore, while the Court of Appeals concluded that "the statute does not require invalidation of the People's statement of readiness" where one count is dismissed, it did not address the issue of an absent certification instead of an inaccurate one. See People v Williams, 45 NY3d 383, 385 (2025). To the contrary, Williams emphasized that a legislative intent for "subdivision (5-a) to only require certification—not necessarily an accurate certification—is not absurd as defendant suggests." Id. at 389-390. However, here, the issue is the lack of a certification, not its accuracy.

Accordingly, the People here were required to file a CPL 30.30(5-a) certification with their superseding information to validly state ready. However, the People are correct that the period beginning July 29, 2026, when they served and filed their superseding information, was excludable, pursuant to CPL 30.30(4)(a), when the defendant requested a motion schedule. See People v Brown, 99 NY2d 488, 491-492 (2003) (the period from when defense announces an intention to file a motion is excludable). The Court therefore finds the following periods chargeable to the People:

• October 26, 2025 to December 10, 2025. The action commenced October 26, 2025 when the defendant was arraigned on a misdemeanor complaint. The matter was then adjourned to December 10, 2025 for conversion. On December 10, 2025, the People had not yet served and filed the necessary supporting deposition or a COC or CTR, and the case was adjourned to January 30, 2026 for conversion. The People are charged 45 days for this adjournment.

• December 10, 2025 to January 30, 2026. On January 23, 2026, the People filed and served two supporting depositions and a laboratory report along with a valid COC and CTR. On January 30, 2026, the complaint was deemed an information, the defendant did not appear, a bench warrant was stayed and the matter was adjourned to February 4, 2026 for the defendant to appear. The People are charged 44 days for this adjournment.

• January 30, 2026 to February 4, 2026. On February 4, 2026, the defendant did not appear, and a bench warrant was ordered. Such period is excluded due to the absence of the defendant (CPL 30.30[4][c][i]). The People are charged 0 days for this adjournment.

• February 4, 2026 to February 19, 2026. On February 19, 2026 the defendant returned to Court and the matter was adjourned to March 24, 2026 for hearings and trial. Such period is excluded due to the absence of the defendant (CPL 30.30[4][c][ii]). The People are charged 0 days for this adjournment.

• February 19, 2026 to March 24, 2026. On March 24, 2026, the defendant did not appear, and a bench warrant was ordered. Such period is excluded due to the absence of the defendant (CPL 30.30[4][c][i]). The People are charged 0 days for this adjournment.

• March 24, 2026 to March 26, 2026. On March 26, 2026, the defendant returned to Court and the matter was adjourned to April 16, 2026 for hearings and trial. Such period is excluded due to the absence of the defendant (CPL 30.30[4][c][ii]). The People are charged 0 days for this adjournment.

• March 26, 2026 to April 16, 2026. On April 16, 2026, the defendant did not appear, a bench warrant was stayed and the matter was adjourned to April 20, 2026 for the defendant to appear. The People are charged 0 days for this adjournment.

• April 16, 2026 to April 20, 2026. On April 20, 2026, the defendant appeared, waived speedy trial, pursuant to CPL 30.30(4)(b), for a treatment screening, and the matter was adjourned to April 27, 2026. The People are charged 0 days for this adjournment.

• April 20, 2026 to April 27, 2026. On April 27, 2026, the defendant indicated that he was not interested in a treatment disposition, and the matter was adjourned to April 29, 2026 for hearings and trial. This period is excludable pursuant to CPL 30.30(4)(b). The People are charged 0 days for this adjournment.

• April 27, 2026 to April 29, 2026. On April 29, 2026, the People answered ready for hearings and trial, and the matter was adjourned to May 13, 2026 for hearings and trial. The People are charged 0 days for this adjournment.

• April 29, 2026 to May 13, 2026. On May 13, 2026, the People answered ready for hearings and trial, and the matter was adjourned to June 16, 2026 for hearings and trial. The People are charged 0 days for this adjournment.

• May 13, 2026 to June 16, 2026. On June 16, 2026, both parties answered ready for hearings and trial, a combined Huntley, Mapp and Dunaway hearing was conducted, and the matter was adjourned July 6, 2026 for decision. This period is excludable pursuant to CPL 30.30(4)(a). The People are charged 0 days for this adjournment.

• June 16, 2026 to July 6, 2026. On July 6, 2026, a decision was not ready, and the case was adjourned to July 27, 2026 for decision. This period is excludable pursuant to CPL 30.30(4)(a). The People are charged 0 days for this adjournment.

• July 6, 2026 to July 27, 2026. On July 27, 2026 a decision was rendered denying the defendant's suppression motion, and the case was adjourned to July 29, 2026 for preliminaries. The People are charged 0 days for this adjournment.

• July 27, 2026 to July 29, 2026. The People served and filed a superseding information, the People announced their readiness on the record (see People v Kendzia, 64 NY2d 331, 337 [1985]), the defendant requested a motion schedule, a motion schedule was set, and the matter was adjourned to September 21, 2026 for decision.

• July 29, 2026 to September 21, 2026. This period is excludable pursuant to CPL 30.30(4)(a). The People are charged 0 days for this adjournment.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss count one of the superseding information, Possession of Burglar's Tools (Penal Law § 140.35), on facial sufficiency grounds is denied; the defendant's motion to dismiss the entire accusatory instrument on facial sufficiency grounds for the People's purported failure to convert the original complaint to an information is denied; and while the People failed to properly serve and file a CPL 30.30(5-a) certification, preventing their statement of readiness from taking effect, such period was excludable pursuant to CPL 30.30(4)(a). Accordingly, the People are charged 89 days, the People are ordered to file a valid CTR, including a CPL 30.30(5-a) certification, within their remaining 30.30 time, and the defendant's motion is denied.

The foregoing constitutes the order and decision of the court.

Dated: September 21, 2026

Staten Island, New York

E N T E R:

RAJA RAJESWARI, A.J.S.C.

Raja Rajeswari, J.