DECISION AND ORDER On December 4, 2019, Defendant moved to dismiss the accusatory instrument for facial insufficiency pursuant to CPL §170.30(1)(a) and CPL §170.35(2), or in the alternative, move (i.) to preclude the People from introducing testimony of the complaining witness into evidence at trial, (ii.) preclude the People from cross-examining Defendant as to certain prior criminal acts or for a Sandoval hearing, (iii.) disclose all prior criminal or bad acts that the People intend to use at trial, (iv.) direct the People to disclose Brady and Rosario material. On February 18, 2020, the People filed opposition to the motion. On July 24, 2019, Defendant was arraigned and charged with two counts of Stalking in the Fourth Degree (PL §120.45); Disorderly Conduct (PL §240.20[3]) and Harassment in the Second Degree (PL §240.26[1]). On August 19, 2019, the People filed a statement of readiness, superseding information and corroborating affidavit. The superseding information divided the charges into six separate incidents and charged Defendant with five counts of Harassment in the Second Degree (PL §240.26[3]); two counts of Aggravated Harassment in the Second Degree (PL §240.30[2]); Stalking in the Fourth Degree (PL §120.45[1]) and Stalking in the Third Degree (PL §120.50[3]). Defendant now moves to dismiss all charges as facially insufficient. I. Motion to Dismiss Facial Sufficiency The accusatory instrument under review is the superseding information filed by the People on August 19, 2019. Facial sufficiency of a misdemeanor information is determined by the factual portion of the accusatory instrument and any supporting depositions. It must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offense or offenses charged. The non-hearsay allegations must establish, if true, every element of the offense (See CPL 100.15 [3]; CPL 100.20; CPL 100.40 [1]; People v. Alejandro, 70 NY2d 133, 137 [1987]). The prima facie case requirement for the facial sufficiency of an information “is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial” (People v. Smalls, 26 NY3d 1064, 1066 [2015] [internal citations omitted]). “So 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. Casey, 95 NY2d 354, 360 (2000); People v. Kalin, 12 NY3d 225 (2009). Incident 1 The charges of Harassment in the Second Degree (PL §240.26[3]) and Aggravated Harassment in the Second Degree (PL §240.30[2]) under the first incident on May 9, 2019 are facially sufficient. Pursuant to Penal Law §240.26(3), a person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person, he or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose (See PL §240.26[3]). Pursuant to Penal Law §240.30(2), a person is guilty of Aggravated Harassment in the Second Degree when, with intent to harass or threaten another person, he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication (See PL §240.30[2]). The superseding information alleges that “between May 9, 2019 6:00pm and May 9, 2000 9:30pm…informant received phone calls from a phone number informant recognized to be that of the Defendant, in which Defendant stated, in sum and substance, I know you’re going to meet someone at the concert and I know where you are right now, and I have someone following you; the Defendant then accurately described what informant was wearing.” As an initial matter, Defendant moves to dismiss both charges of May 9, 2019 based on a typographical error. The superseding information incorrectly stated the incident occurred between May 9, 2019 at 6:00pm and 9:30pm on May 9, 2000, not 2019. Defendant further asserts that the times provided are contradictory. Defendant cites no statutory or case law to support his position that this typographical error is jurisdictionally defective warranting dismissal. In opposition, the People assert that Defendant was given sufficient notice to prepare a defense as the six incidents listed in the superseding information occurred over a six-day period in May of 2019, with the sixth incident correctly written to have occurred between May 9, 2019 and May 15, 2019. Despite the typographical error, Defendant was provided with sufficient notice to prepare his defense. “So 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. Casey, 95 NY2d 354, 360 [2000] [internal citations omitted]). The Court notes that the People must ultimately move to amend the complaint in order to remedy this defect (Id). Additionally, the times listed are not contradictory, as asserted by Defendant, given that the first incident allegedly occurred at 6:00pm and concluded at 9:30pm on the same date. In support of dismissal of both charges, Defendant contends that there was a legitimate purpose for his communication based on his relationship with the complainant and their child in common. However, their relationship, if any, does not automatically render his communications legitimate. In fact, a review of the content of Defendant’s alleged communication demonstrates that there was no legitimate purpose to Defendant’s communication on May 9, 2019. “A communication has ‘no legitimate purpose’ for purposes of the harassment statutes when it has no legitimate purpose ‘in that its purpose was to cause the harm identified in,’ or reflects the intent identified in, the statute at issue. Here, both statutes at issue contain this requirement. Section 240.30(2) requires that a telephone communication have no legitimate purpose in that it reflects the ‘intent to harass or threaten another person,’ while section 240.26(3) requires that a course of conduct have no legitimate purpose in that it ‘alarms or seriously annoys another person’” (People v. Harrison, 20 N.Y.S.3d 293 [NY County 2015]). The allegation that Defendant told Complainant that he knew where she was, had her followed and accurately described what she was wearing, certainly reflects his intent to, at a minimum, harass and alarm the complaining witness. Defendant challenges the allegations as to Defendant’s identity as the perpetrator of the alleged crimes because the phone number was not provided nor was it explained how the complaining witness knew the call was made by Defendant. The Court notes that the factual allegations state that the complaining witness recognized the phone number to be that of Defendants and further indicates that they have engaged in other prior communication, so it can be inferred that she would recognize Defendant’s voice. Defendant asserts dismissal is warranted because the factual allegations do not quantify how many telephone calls the complaining witness received from Defendant. While it would be more precise to quantify the number of communications received from Defendant, the pluralization of “telephone calls,” rather than singular usage, indicates that more than one call was received. Two telephone calls sufficiently establishes repeated acts or a course of conduct. “The term ‘course of conduct’ may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose” (People v. Payton, 161 Misc. 2d 170, 174 [Kings County 1994]). In People v. Harrison, the Court found the charge of Harassment in the Second Degree pursuant to Penal Law §240.26(3) facially sufficient when the allegation was two phone calls made to the Complainant (See People v. Harrison, 20 N.Y.S.3d 293 [NY County 2015]). Defendant’s other arguments in support of dismissal are issues for a trier of fact and do not render the accusatory instrument facially insufficient. Incident 2 Under the second incident, it is alleged that on May 10, 2019, “informant received emails and text messages from an email address and phone number informant recognized to be that of the defendant, in which defendant stated in sum and substance, I went through your computer and I saw pictures of you and your ex-boyfriend.” Defendant was charged with Harassment in the Second Degree (PL §240.26[3]). For the reasons set forth above, Defendant’s motion to dismiss for facial insufficiency as to the charge of Harassment in the Second Degree is denied. The superseding instrument alleges that Complainant received “emails and text messages” from Defendant. The pluralization of these words indicate that at least two emails and at least two text messages were received, which sufficiently pleads a “course of conduct” (See People v. Payton, 161 Misc. 2d 170, 174 [Kings County 1994]). The content of the emails and text messages, which state that Defendant went through Complainant’s computer and saw pictures of her and her ex-boyfriend establish that the communication had no legitimate purpose, as per the charge of Harassment in the Second Degree (PL §240.26[3]). Incidents 3 and 4 The branch of Defendant’s motion to dismiss the charges under the third and fourth incidents is granted. As to the third incident, the superseding information alleges that on May 13, 2019 between 12:50 pm and 7:02 pm, “informant received emails, call and text messages, including phone calls to informant’s place of business from Defendant” and charges Defendant with Harassment in the Second Degree (PL §240.26[3]) and Aggravated Harassment in the Second Degree (PL §240.30[2]). Defendant asserts that without allegations as to the content of the emails, telephone calls and text messages, it cannot be demonstrated that Defendant’s words had no legitimate purpose or annoyed/harassed the complaining witness. This Court agrees that the factual allegations do not establish the charges of Harassment in the Second Degree (PL §240.26[3]) or Aggravated Harassment in the Second Degree (PL §240.30[2]) as there is absolutely no description of the contents of Defendant’s emails, calls and text messages. Conclusory allegations are facially insufficient and render the accusatory instrument defective (See People v. Dumas, 68 NY2d 729 [1986]). As to the fourth incident, this Court agrees with Defendant that the charge of Harassment in the Second Degree is facially insufficient because one single text message does not constitute a course of conduct or repeated acts as required by Penal Law §240.26(3). The accusatory instrument alleges that on May 14, 2019, at 7:12pm “informant received a text message from a phone number informant recognized to be that of the Defendant, stating in sum and substance, you didn’t love me, you’re sleeping with other people, you broke my body.” In their opposition papers, the People do not acknowledge that the charge of Harassment in the Second Degree on May 14, 2019 pertains to only one text message. Course of conduct has been interpreted to mean a series of acts over a period of time (People v. Payton, 161 Misc. 2d 170, 174 [Kings County 1994]). In the fourth instance, there is no series of acts being alleged. The allegation is a single text message from Defendant, which alone does not constitute “repeated acts” or “course of conduct.” While there are allegations of other telephone calls, text messages and emails from Defendant to the complaining witness on other dates, those allegations are written under separate incidents in the accusatory instrument for which Defendant is being charged separately. Incident 5 However, the charge of Harassment in the Second Degree (PL §240.26[3]) under the fifth incident is facially sufficient. It is alleged that on May 15, 2019, at 1:33am, “informant received an email from an email address informant recognized to be that of the defendant, stating in sum and substance, I apologize for repeatedly calling your work.” The allegation of one email on May 15, 2019, in this instance, constitutes “a course of conduct or repeatedly commits acts” as Defendant affirmatively acknowledges, as required by Penal Law §240.26(3). Incident 6 Under the sixth incident, Defendant is charged with Stalking in the Fourth Degree (PL §120.45[1]) and Stalking in the Third Degree (PL §120.50[3]). The accusatory instrument alleges that between May 9, 2019 at 6:00 pm and May 15, 2019 at 1:33am, “all of the above actions caused informant to fear material harm and to become alarmed and annoyed.” A person is guilty of Stalking in the Fourth Degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted (See PL §120.45[1]). The Court of Appeals held that for Stalking the Fourth Degree, the “course of conduct must be intentional; it must be aimed at a specific person; and the offender must know (or have reason to know) that his conduct will (or likely will) instill reasonable fear of material harm in the victim” (People v. Stuart, 100 N.Y.2d 412 [2003]). Defendant incorrectly contends that the first five incidents should be dismissed; therefore, disregarded. Defendant further contends that his statements are innocuous, non-threatening statements, which could not support a finding of Stalking in the Third or Fourth Degree. In opposition, the People assert that Defendant’s repeated, unsolicited attempts to contact Complainant, including a telephone call that he knew where she was, was having her followed and an accurate description of what she was wearing, would cause reasonable fear for her own safety. In the light most favorable to the People, the superseding instrument establishes Stalking in the Fourth Degree. Defendant’s telephone calls, emails and text messages between May 9, 2019 and May 15, 2019 to the complaining witness sufficiently pleads a course of conduct. As discussed above, the allegations establish that there was “no legitimate purpose” for Defendant’s communications. Defendant’s threat to have her followed, in addition to his accurate description of her outfit at the time, which demonstrated that he was in fact having her followed, constitutes cause of objectively reasonable fear of physical injury. “Where ‘reasonable fear’ is an element of a crime, the fear must be objectively reasonable (People v. Demisse, 24 A.D.3d 118, 119 [1st Dep't 2015]). In Demisse, the Court held that Defendant’s actions did not support a finding of “reasonable fear” when Defendant repeatedly declared his love to the complainant. The Court held that Defendant’s communications were not abusive or hostile in tone or content, and did not convey any implied threat of harm (See Id). Unlike Demisse, in this instance, Defendant’ conduct was hostile and implied a threat of harm. A person is guilty of Stalking in the Third Degree when he or she with intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person’s immediate family (See PL §120.50[3]). To establish Stalking in the Third Degree, the threat must cause “reasonably fear of physical injury,” at minimum. There is no statutory requirement that the course of conduct be of a particular type or duration. The statute is “not to be strictly construed but rather must be construed according to the fair import of their terms in order to promote justice and effect the objects of the law” (People v. Perez, 189 Misc. 2d 516 [Nassau County 2001]). In this instance, Defendant’s alleged conduct of repeated telephone calls, text message and emails over six days, including his threat to have her followed and indications that he was having her followed, is sufficient to support Stalking in the Third Degree. II. Additional Relief Defendant’s remaining contentions within the instant motion are reserved for trial. III. Conclusion Defendant’s motion to dismiss the charges under incidents 1, 2, 5 and 6 is denied. The branch of Defendant’s motion that seeks to dismiss the charges under incidents 3 and 4 is granted. Accordingly, the charges of Harassment in the Second Degree (PL §240.26[3]) and Aggravated Harassment in the Second Degree (PL §240.30[2]) for the incident on May 13, 2019 are dismissed. The charge of Harassment in the Second Degree (PL §240.26[3]) for the incident on May 14, 2019 is dismissed. Defendant’s remaining contentions for relief are reserved for the trial judge. The foregoing constitutes the Decision and Order of the court. Dated: March 3, 2020
