In this case, the People were not ready for trial for 84 days after arraignments and then filed a statement of readiness. The defense, by a C.P.L. §30.30 motion to dismiss, now challenges that statement of readiness. They argue that it was illusory because the People’s information was facially insufficient. The defense asserts two reasons for this: first, that the information fails to establish “physical injury,” which is a necessary element of the top charge, third-degree assault; and second, that the information contains duplicitous counts. The People respond that the information sufficiently alleges physical injury because it alleges “a laceration and bleeding” and “substantial pain.” They also argue that the information is not duplicitous “as each element of the specific charge are [sic] made out.” In reply, the defense notes that the People failed to abide by the court’s deadlines in filing their response to the motion. The court has considered the defense’s motion, the People’s response, and the defense’s reply, as well as the court file. LEGAL ANALYSIS In this case, which only charges misdemeanors punishable by up to 364 days in jail, the People have 90 days to be ready for trial. (C.P.L. §30.30[1][b]). “Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.” (People v. Cortes, 80 NY2d 201, 208 [1992]). I. Calculating the time elapsed between the filing of the accusatory instrument and the People’s first valid declaration of readiness The court begins by computing the time between the filing of the first accusatory instrument and the People’s first valid declaration of readiness. (Cortes, 80 NY2d at 208). The People commenced this case on June 14, 2022, and filed their statement of readiness on September 6, 2022. If that statement of readiness is valid, then 84 days elapsed during this period. The defense argues that the People’s statement of readiness was invalid because the People failed to first file a facially sufficient information. If the People do not first file a facially sufficient information, then their statement of readiness is illusory. (People v. Colon, 59 NY2d 921 [1983]; People v. Maslowski, 187 AD3d 1211 [2d Dep't 2020]; People v. Sosa, 71 Misc 3d 140[A] [App. Term, 2d Dep't 2021]). An information is facially sufficient if it meets “the requirements of sections 100.15 and 100.40″ of the criminal procedure law. (C.P.L. §§30.30[5-a], 100.40[1], 100.15). It must do so with respect to all its charges. (C.P.L. §30.30[5-a]; see, e.g., People v. Matos, 180 N.Y.S.3d 890, 893 [Crim. Ct., Kings County 2023]). The defense identifies two facial sufficiency issues that it believes each invalidate the People’s statement of readiness. First, the defense posits that the information’s top count, third-degree assault, is facially insufficient because it fails to establish physical injury. An information is facially sufficient only if it contains non-hearsay evidentiary factual allegations that, if true, establish “every element” of the charged offenses. (C.P.L. §§100.40[1][c], 100.15[3]; see also People v. Sanson, 59 Misc 3d 4, 6 [App. Term, 2d Dep't 2018]; People v. Sumter, 151 AD3d 556, 558 [1st Dep't 2017] [rejecting the dissent's argument that not "every element" must be established for an information to be facially sufficient]). Of course, the law does not require that an information contain the most precise words that most clearly express the alleged narrative. (Sanson, 59 Misc 3d at 6). So long as the factual allegations “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.” (See id. [internal quotation marks omitted]). Physical injury is a necessary element of third-degree assault, (P.L. §120.00[1]), and the penal law defines “physical injury” as “impairment of physical condition or substantial pain.” (P.L. §10.00[9]). In lieu of establishing an impaired physical condition, establishing “substantial pain” cannot be “wholly subjective.” (Matter of Philip A., 49 NY2d 198, 200 [1980]). Instead, “there is an objective level,” below which “the question is one of law” and should result in a court’s dismissal. (Id.). For instance, as a rule of law, “petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives are not within the definition” of acts that may cause substantial pain. (Id.). Because an analysis of pain cannot be wholly subjective, an information’s mere invocation of the term “substantial pain” is not itself sufficient. (E.g., People v. Lugo, 47 Misc 3d 1222[A], at *2 [Crim. Ct., Bronx County 2015] [observing that "substantial pain, standing alone, does not establish" physical injury]; People v. Perez, 40 Misc 3d 448, 450-51 [Crim. Ct., Queens County 2013] [same]; People v. Dipoumbi, 23 Misc 3d 1127[A], at *2 [Crim. Ct., NY County 2009] [same]; see also People v. A.S., 28 Misc 3d 381, 383-85 [Crim. Ct., NY County 2010] [finding facial insufficiency where the information alleged a shove and punch, resulting in substantial pain, but failed to describe any of the alleged injuries]). Instead, the information should allege additional facts that objectively support the claim of substantial pain. (See People v. Strong, 179 Misc 2d 809, 811 [App. Term, 2d Dep't 1999] [information alleging hits, kicks, "a lot of pain," and "injury to my back and side" did not establish physical injury]). At the same time, however, where there are not independent allegations of an impaired physical condition, some indication of subjective pain will be necessary. (See People v. Frederique, 31 Misc 3d 1215[A], at *2-*3 [Dist. Ct., Nassau County 2011] [finding facial insufficiency despite an alleged "severe knee sprain requiring immediate medical contention" where there was no subjective statement of pain or facts supporting an impaired physical condition]; People v. W.J., 27 Misc 3d 1212[A], at *1-*2 [Crim. Ct., NY County 2010] [finding facial insufficiency where an officer observed blood on a person's shirt and lacerations on their face, but there was no subjective statement of the degree of pain]; see generally People v. Carlson, 2002 NY Slip Op. 50173[U], at *2-*3 [City Ct., White Plains 2002] [collecting cases where an information was found facially insufficient without a subjective statement of the degree of pain]). Here, the information alleges that Ms. Harris “put her hand around [the complainant's] neck, applied pressure, and dug her nails into his neck causing him to have trouble breathing as well as a laceration and bleeding to his neck, and substantial pain.” This is facially sufficient to establish third-degree assault. It provides a subjective level of pain, “substantial,” and it also provides allegations that would objectively corroborate that level of pain — lacerations and bleeding. (See People v. Henderson, 92 NY2d 677 [1999] [finding facial sufficiency where an information alleged "substantial pain," "contusions," and "swelling" after the complainant was kicked]). Second, the defense argues that the information is facially insufficient because it contains duplicitous counts. The People may not state ready for trial on an information that contains a duplicitous count. Criminal Procedure Law §30.30[5-a] mandates that “a statement of readiness shall not be valid” unless the People certify that “all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.” (See also People v. C.H., 75 Misc 3d 636, 639-41 [Crim. Ct., Queens County 2022]). It is “well established” that C.P.L. §100.15[2], in turn, requires that an accusatory instrument not contain duplicitous counts. (Id.; see also People v. Rodriguez, 50 Misc 3d 1223[A], at *7 [Crim. Ct., Queens County 2016]; People v. Freeman, 34 Misc 3d 1217[A], at *5 [Crim. Ct., Kings County 2012]; People v. Alston, 31 Misc 3d 1201[A], at *1-*2 [Crim. Ct., Kings County 2011]; People v. Smiley, 28 Misc 3d 1229[A], at *3 [Crim. Ct., Queens County 2010]; People v. Barhan, 147 Misc 2d 253, 256 [Crim. Ct., NY County 1990]; People v. Todd, 119 Misc 2d 488, 489-90 [Crim. Ct., NY County 1983]; C.P.L. §§100.15[2], 200.30[1]). An information is duplicitous “when a single count charges more than one offense.” (People v. Alonzo, 16 NY3d 267, 269 [2011]). Duplicity creates several problems because it makes unclear what specific acts constitute the count. It undermines the defense’s “notice” as to what the specific charges are, impairing their “opportunity to defend.” (Id.). It undermines the requirement of jury unanimity because jurors may split on what acts they believe a person guilty, but all nonetheless vote guilty of the count. (Id.). And it impairs the protection against double jeopardy because it makes unclear what acts a jury convicted a person of in a prior case. (Id.). Here, the defense argues that “counts one, two, and three are duplicitous” because it is “impossible to tell with precision which of the factual allegations in the accusatory instrument are intended by the prosecution to constitute each count.” (Def. Mot. at 5). But it is difficult to see why that could be so. The information alleges only one action, and so only that action could possibly constitute each count. The defense, in fact, acknowledges this. (Id. at 6 ["[T]he accusatory instrument alleges a single action.”]). As the problem of duplicity lies where multiple actions could each possibly constitute a single count, it cannot lie where an information alleges only a single action.1 In sum, the court rejects both of the defense’s arguments and concludes that the information is facially sufficient. Therefore, the People’s statement of readiness was valid. Between arraignment and the People’s statement of readiness, 84 days accordingly elapsed on the §30.30 clock. II. Calculating the time postreadiness that is actually attributable to the People The court next adds “any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.” (Cortes, 80 NY2d at 208). In their reply, the defense argues that the People’s unexplained delay in filing their response to the instant motion qualifies. The court agrees. Under C.P.L. §30.30[4][a], a “reasonable period of delay resulting from…pre-trial motions” must be excluded from any C.P.L. §30.30 calculation. As that rule implies, however, if the People unreasonably delay proceedings on a pretrial motion, then that delay is attributable to them. “Thus, the People are chargeable with the time between [a] court-imposed deadline to respond…and the date on which the People actually filed a response.” (People ex rel. Ferro v. Brann, 197 AD3d 787, 788 [2d Dep't 2021]; see also People v. Delosanto, 307 AD2d 298, 299 [2d Dep't 2003] ["[T]he Supreme Court should have charged the People with a 13-day period [between] a court imposed deadline to respond to one of the defendant’s pretrial motions [to] the date that the People actually filed a response.”]; People v. Gonzalez, 266 AD2d 562, 563 [2d Dep't 1999] [holding that a period between which "the People were originally scheduled to respond" and "the date upon which they actually did respond" should be "charged to the People" because "it constitutes a period of unreasonably delay"]; People v. Commack, 194 AD2d 619, 620 [2d Dep't 1993] ["[T]he last 10 days…should be charged to the People because the People did not respond to the motion until 10 days after the court-ordered deadline.”]). Here, the court ordered the People to respond to the defense’s motion by November 28, 2022. They did not meet this deadline, nor did they ask for an extension. The People did not actually respond to the motion until January 10, 2023. Therefore, the amount of time between those two dates — 43 days — is an unreasonable delay that is “actually attributable” to the People. (See Cortes, 80 NY2d at 208). Adding that onto the previous calculation of 84 days results in a delay of 127 days. CONCLUSION In total, 127 days of delay are attributable to the People. That exceeds the People’s allotment of 90 days. (C.P.L. §30.30[1][b]). Therefore, the motion must be granted. The case is dismissed. The foregoing constitutes the order and decision of the court. Dated: March 9, 2023
