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People v. Scalera

Instrument Charging Harassment Denied Dismissal With Leave to Renew Upon Developed Record

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*1  this criminal matter was commenced by the filing with this Court of an accusatory instrument alleging that on June 17, 2017 the defendant committed a violation of NYS Penal Law §240.26(1), Harassment in the Second-Degree. Specifically, the defendant is accused of making a telephone call to the complainant’s cell phone and allegedly saying, “I’m going to fuck you up.” At arraignment, the defendant pled not guilty to the charge.Defendant has now moved by notice of motion dated August 14, 2017 seeking dismissal of the charge, or in the alternative that the prosecution provide the defendant Brady material. Defendant also moved for “reservation of rights and other motions.”The People filed an affirmation dated August 28, 2017 in opposition to defendant’s motion.In support of the motion to dismiss the action, defendant alleges that the accusatory instrument is insufficient on its face because the charge is not supported by non-hearsay factual allegations and therefore must be dismissed in accordance with CPL §170.35(1)(a) and People v. Alejandro 70 NY2d 133, 517 NYS2d 927 (1987). The defendant also asserts that the accusatory instrument is deficient pursuant to CPL §100.40 in that the facts alleged do not constitute all of the elements of the crime of Harassment in the Second Degree.NYS Penal Law §240.26(1), Harassment in the Second-Degree states: A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same. Defense argues that “while the hearer may have reasonably assumed ‘fuck you up’ to be a threat of physical contact, the words themselves do not state any such meaning.”

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