DECISION AND ORDER Defendant is charged by information with two counts of aggravated harassment in the second degree (Penal Law §240.30[1][a], [b]) and one count of harassment in the second degree (Penal Law §240.26[1]). Defendant moves to dismiss all counts as facially insufficient on the ground that there was no “true threat” as required by these offenses. Defendant also seeks other forms of relief. The People contend that defendant’s omnibus motion should be procedurally barred as untimely pursuant to Criminal Procedure Law §255.20 as it was filed seventy-seven days after arraignment.For the reasons set forth below, defendant’s motion to dismiss is granted. The Court also grants the People leave to supersede, if they so choose.Criminal Procedure Law §255.20[1] provides, in relevant part, that all pretrial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment. The challenge to a jurisdictionally defective information, however, may be raised at any time because the facial sufficiency of a misdemeanor complaint is a non-waivable jurisdictional defect. See People v. Hall, 48 NY2d 927 [1979]; People v. Alejandro, 70 NY2d 133, 139 [1987]; People v. Smith, 48 Misc3d 1201[A][Crim Ct, Bronx County 2015]. For this reason, the Court has decided the facial sufficiency motion at this time.The misdemeanor information alleges that:I [Detective Anthony Cozzi] am informed by Lana Colden, of an address known to the District Attorney’s Office, that on or about August 28, 2017, at about 8:00 a.m., inside 139 Fulton Street, in New York County, NY, she received an email from the defendant, in which the defendant stated in substance to Ms. Colden on August 8, 2017: “you will get yours.”I am further informed by Ms. Colden that she knew the email [was] from the defendant because she recognized the email as the defendant’s email.I am further informed by Ms. Colden that the defendant’s abovementioned conduct caused her to feel annoyed harassed, alarmed, and threatened, and in fear for her physical safety.A person is guilty of aggravated harassment in the second degree when, “with intent to harass another person, the actor either: (a) communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person’s same family or household…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 or property, or to the physical safety or property of a member of such person’s same family or household; or (b) causes a communication to be initiated anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, a member of such person’s same family or household…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 or property, or to the physical safety or property of a member of such person’s same family or household” (Penal Law §240.30[1][a],[b].A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person, he strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.Defendant argues that the complaint is facially insufficient because the language used does not constitute a “true threat” to cause specific physical harm to the complainant. The People respond to this argument with only one sentence that “[h]ere the complainant understood the defendant’s actions to be threatening and that is sufficient on it’s face to meet the legal standard.” [People's response p 3]“A ‘threat’ is a ‘communicated intent to inflict harm or loss on another or on another’s property, and that a threat is a ‘true threat when an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury.’” People v. Williams, 46 Misc3d 1208[A](Crim Ct, NY County 2015). “More generally, to constitute a ‘true threat,’ a remark must contain a threat that is ‘clear, unambiguous, and immediate’,,,[and] [w]here the language at issue ‘is incapable of constituting a true threat, as a matter of law, the complaint should be dismissed’ (internal citations omitted).” People v. Orr, 47 Misc3d 1213[A] [Crim Ct, NY County 2015]; People v. Spruill, 49 Misc3d 1202[A][Crim Ct, NY County 2015]. “[I]t is well established that prohibitions of pure speech must be limited to communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct (internal citations omitted)” People v. Marquan M., 24 NY3d 1,7 [2014]. In making such a determination “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 NY3d 455, 467 (2014).The Court finds, applying these standards, that defendant’s alleged email does not constitute a “true threat.” It is clear that defendant’s communication with the complainant was unwanted-she did, after all, report it to the police-and alarming to her. See, People v. Orr, supra. It is not, however, a true threat. The contents of the text of the email “you will get yours”, is subject to a variety of interpretations, is maybe offensive and insulting but it is not a “true threat” of an “act of unlawful violence.” See People v. Spruill, supra; People v. Orr, supra. It is close to the phrase “watch your step or something is going to happen to you” which was found not to be a true threat. People v. Khaimov, 26 Misc3d 1202[A][Crim Ct, NY County 2009].In light of the Court’s finding with respect to the specified email, defendant’s motion to dismiss all counts for facial insufficiency is granted. The Court also grants the People leave to supersede.The foregoing constitutes the opinion, decision and order of the Court.DATED: August 27, 2018New York, New York
