Summary of the Court’s Decision1) The defendant’s motion to dismiss count one of the information — Criminal Contempt in the Second Degree (P.L. §215.50(3)) — is DENIED.2) The defendant’s motion to dismiss counts 2, 3 and 4 of the information — Aggravated Harassment in the Second Degree (P.L. §240.30(1) & (2)) and Harassment in the Second Degree (P.L. §240.26(1)) — is GRANTED.3) The defendant’s motion to dismiss the two counts of Aggravated Harassment in the Second Degree (P.L. §240.30(1) & (2)) as unconstitutionally vague and overbroad is DENIED AS UNNOTICED AND MOOT.4) The defendant’s motion to dismiss the information in the interest of justice is DENIED.Decision and Order The defendant, Iosif Isakov, is charged with one count each of Criminal Contempt in the Second Degree (P.L. §215.50(3)) and Harassment in the Second Degree (P.L. §240.26(1)) and two counts of Aggravated Harassment in the Second Degree (P.L. §240.30(1) & (2)). He now moves this Court to dismiss the information on facial insufficiency grounds or, alternatively, in the interest of justice. Additionally, he moves to dismiss the two aggravated harassment counts as unconstitutional on their face. The People, by written response, oppose the defendant’s motion. After a review of the defendant’s motion, the People’s response and the court file and record, this Court makes the following findings.The Accusatory InstrumentIn analyzing the facial sufficiency of the accusatory instrument, this Court must presume true all non-hearsay, evidentiary allegations of the information and any supporting documentation. See C.P.L. §100.40(1)(c) (“[T]he non-hearsay allegations of the factual part of the information…[must] establish, if true, every element of the offense charged and the defendant’s commission thereof.”) (emphasis added); People v. Casey, 95 N.Y.2d 354, 360 (2000) (quoting P.L. §100.40(1)(c)).At about 9 a.m. of March 11, 2018, while inside of 72-64 150th Street, in Queens County, complainant Olena Tymoshenko received a telephone call from the defendant, her husband, whose voice she recognized. He told her, in sum and substance, “Drop the charges, or I will put a curse on you.” This phone call caused her to feel “annoyance, alarm and fear for her safety.”An order of protection against the defendant and in favor of the complainant was issued by this Court on February 6, 2018, and remained in effect until March 12, 2018. The order required the defendant to stay away from the complainant’s home, school and place of employment. The defendant also was required to refrain from calling, emailing or otherwise contacting, assaulting, menacing, stalking, intimidating, harassing, or committing any other criminal offense against the complainant. The defendant “was present in court, advised of the issuance and contents of said order and” signed it.Facial Sufficiency Analysis“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.” People v. Smalls, 26 N.Y.3d 1064, 1066 (2016) (quoting People v. Dreyden, 15 N.Y.3d 100, 103 (2010)); see also C.P.L. §§170.30; 170.35. Such a facially sufficient and valid misdemeanor information must contain nonhearsay, non-conclusory, factual allegations of an evidentiary character that establish every element of, and constitute reasonable cause to believe the defendant committed, the charged offenses. See C.P.L. §§70.10; 100.15(3); 100.40(1)(b) & (c); People v. Alejandro, 70 N.Y.2d 133 (1987); People v. Dumas, 68 N.Y.2d 729 (1986). Further, “[s]o 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. Ocasio, 28 N.Y.3d 178, 180 (2016) (quoting People v. Casey, 95 N.Y.2d 354, 360 (2000)).Count 1: Criminal Contempt in the Second Degree (P.L. §215.50(3))It is unlawful to “[i]ntentional[ly] disobe[y] or resist[]…the lawful…mandate of a court….” P.L. §215.50(3). In this case, it is alleged that the defendant called the complainant, his wife, despite being ordered specifically to not do so by this Court. This phone call, regardless of whether a conversation ensued, clearly violates the valid order of protection about which the defendant was aware. Accordingly, the defendant’s motion to dismiss this top count of the information as facially insufficient is DENIED.Count 2: Aggravated Harassment in the Second Degree (P.L. §240.30(1))A person commits aggravated harassment in the second degree when, “with intent to harass another person, the actor…communicates…by telephone…a threat to cause physical harm to…such person…, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety.” P.L. §240.30(1). However, “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” People v. Golb, 23 N.Y.3d 455, 467 (2014) (quoting People v. Dietze, 75 N.Y.2d 47, 52 (1989)).A threat to place a curse, hex, jinx, spell, voodoo, root, evil eye, enchantment or other such spiritual, mystical or magical attack on another neither inflicts actual injury nor naturally invokes immediate violence. Thus, despite the complainant’s subjective belief, the allegation that the defendant claimed he could and would put a curse on her was not a threat that as a matter of law, i.e., one that “an ordinary, reasonable recipient familiar with the context of the communications would interpret as a true threat of violence.” People v. Lewis, 52 Misc.3d 134(A), *2 (App. Term, 2d Dept. 2016) (citing Virginia v. Black, 538 U.S. 343, 359 (2003)). Rather, it was constitutionally protected, pure speech. As such, the “threat” element of Aggravated Harassment in the Second Degree is alleged insufficiently, and the defendant’s motion to dismiss the P.L. §240.30(1) count as facially insufficient is GRANTED.Count 3: Aggravated Harassment in the Second Degree (P.L. §240.30(2))A person also commits aggravated harassment in the second degree when, “[w]ith intent to harass another person, he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.” P.L. §240.30(2). The Appellate Term has held repeatedly that “‘the mere recitation in the accusatory instrument that the telephone call[s] allegedly made by defendant to the complainant ‘had no legitimate purpose of communication,’ without providing a basis for such allegation, does not establish this element of’ aggravated harassment in the second degree.” People v. Lewis, 52 Misc.3d 134(A), *1 (App. Term, 2d Dept. 2016) (quoting People v. Hargrove, 47 Misc.3d 136(A), *2 (App. Term, 2d Dept. 2015). See also People v. Singh, 1 Misc.3d 73, 74 (App. Term, 2d Dept. 2003).The allegations of the instant information are even weaker than in Lewis, because the information does not contain even the rote assertion that there was no legitimate purpose of communication. Further, there is no factual support for inferring no legitimate purpose, e.g., a description of the content of the telephone call. Accordingly, the defendant’s motion to dismiss the P.L. §240.30(2) count as facially insufficient is GRANTED.Count 4: Harassment in the Second Degree (P.L. §240.26(1))It is unlawful to, “with intent to harass, annoy or alarm,” subject another person to, or threaten him or her with, “physical contact” such as “strikes, shoves[ or] kicks.” P.L. §240.26(1). The defendant is not alleged to have made physical contact with the complainant, and as explained ante, a threat to place a curse on another is not a “true threat” of unwanted physical contact. Accordingly, the “threaten” and “physical contact” elements of the harassment violation charge are alleged insufficiently, and the defendant’s motion to dismiss this count as facially insufficient is GRANTED.1Analysis of the Constitutionality of the Aggravated Harassment in the Second Degree Statute (P.L. §240.30)The defendant also asserts that subsections 2 and 3 of P.L. §240.30, under which he is charged, are unconstitutionally vague and overbroad and he moves dismiss them. However, he did not state in his Notice of Motion that he would so move this Court. Further, he has provided this Court with no evidence that he served a copy of this motion upon the State Attorney General. Notice and proper service are statutory prerequisites to this Court addressing this motion. See C.P.L. §210.45(1) (requiring that a dismissal motion be “made in writing and upon reasonable notice to the people [sic]“); C.P.L. §170.45 (applying the procedural rules of C.P.L. §210.45(1) to motions to dismiss misdemeanor informations); C.P.L.R. §1012(b)(1) (“When the constitutionality of a statute of the state…is involved in an action to which the state is not a party, the attorney-general, shall be notified and permitted to intervene in support of its constitutionality.”). Thus, the defendant’s constitutional dismissal motion is DENIED AS UNNOTICED.Moreover, as the two counts of Aggravated Harassment in the Second Degree already are dismissed as facially insufficient, see ante, the defendant’s constitutional dismissal motion is DENIED AS MOOT.Interest of Justice AnalysisDismissal of an information in the interest of justice “is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant…would constitute or result in injustice.” C.P.L. §170.40(1); People v. Clayton, 41 A.D.2d 204, 207 (2d Dept. 1973). “The trial court’s discretion to dismiss in the interest of justice, should be exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations.” People v. Insignares, 109 A.D.2d 221, 234 (1st Dept. 1985) (quotations omitted). See also People v. Dawkins, 289 A.D.2d 589, 590 (2d Dept. 2001) (quoting Insignares, 109 A.D.2d 221).Here, the defendant asserts that the complainant married him only to obtain a green card and has made false claims in order to extort $20,000 from him and his family. He also notes that he is more than sixty years old with no criminal record, and he asserts that any alleged harm in this case is at most minimal. He further states that he has changed his telephone number to avoid the possibility of further “accident[al]” contact with the complainant. Motion to Dismiss at 11.These arguments, taken in aggregate, are unavailing for dismissal in the interest of justice. These potentially evidentiary and mitigative assertions certainly may be relevant at trial. But, a dismissal at this stage would wrongly preclude the factfinder from making such determinations. See, e.g., People v. Prunty, 10 Misc.2d 163, 167 (Crim. Ct., Queens Co. 1979) (“A motion to dismiss in the interests of justice is, in no way, intended to be a substitute for a trial.”). Thus, contrary to the intent of C.P.L. §170.40(1), confidence of the public in the criminal justice system “would be undermined by the court preventing the ‘full airing of the proof available to both parties’ at trial.” People v. Peterson, 56 Misc.3d 1217(A), *2 (City Ct., Mt. Vernon 2017) (quoting People v. Figueroa, 164 Misc.2d 814, 821 (Crim. Ct., Kings Co. 1995); see also C.P.L. §170.40(1)(h).Accordingly, the defendant’s motion to dismiss the information in the interest of justice is DENIED.*******In sum, all but the top count of the information are DISMISSED as facially insufficient. The People may proceed on the remaining, sole count of Criminal Contempt in the Second Degree (P.L. §215.50(3)).This constitutes the decision and order of this Court.Dated: June 20, 2018Kew Gardens, New York
