The attorney representing Utica City Councilman Delvin Moody will file a motion to dismiss his client's assault charge, which stemmed from an alleged domestic violence incident last month.

Frank Policelli made a verbal argument for dismissal of the third degree assault charge - a Class A misdemeanor - during a virtual city court hearing on Wednesday. However, he'll need to put his arguments on paper in order to file his motion for dismissal with the court.

''It's jurisdictionally defective." Policelli told WIBX 950. "Criminal law 101 - you have to allege all the elements of the crime." He continued, "When you allege the crime of assault in the third degree, you have to show substantial pain or physical impairment - like a broken bone."

"In the police report, it says no one needed medical attention, it mentions substantial swelling and blurred vision. She never says in her statement that she suffered substantial pain," Policelli says. "And, the report says victim declined to prosecute, but they still charged him with assault in the third degree anyway."

The charge followed a call to police in the early morning hours of February 6, 2022. Moody, the city's 5th Ward representative, was accused of punching his partner in the face and throwing a speaker at her, according to police.

In the days following the incident, Moody shared this in a text exchange with WIBX:

"I will say that the accusations are false and where [sic] said as retaliation and out of angering from a very personal matter. She is still by my side and hopes that this matter will be dropped as she did not expect it to turn into this."

Moody announced in mid-February the he would be stepping down from the Common Council in the coming weeks, but as of this posting remains one of the Utica's nine elected councilmembers.

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