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Appellate Term, First Department: April 27, 2021

Appellate Term, First Department: April 27, 2021

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By: McShan, J.P., Brigantti, Hagler, JJ.

16-556. THE PEOPLE OF THE STATE OF NEW YORK, res v. COLETON STIRMAN, def-app — Judgment of conviction (Denise M. Dominguez, J. at plea; Heidi C. Cesare, J. at sentencing), rendered February 3, 2016, reversed, on the law, and the accusatory instrument dismissed. We agree with defendant that the accusatory instrument charging stalking in the fourth degree (see Penal Law §120.45[2]) was jurisdictionally defective. The instrument failed to contain allegations to support an essential element of the offense, namely, that defendant followed, telephoned or initiated contact with the victim after he “was previously clearly informed to cease that conduct” (Penal Law §120.45[2]; see People v. Stuart, 100 NY2d 412, 427 [2003]). While the instrument alleges that defendant sent “approximately 100 emails” to complainant for no legitimate purpose, the email response sent to defendant, stating, in pertinent part, that “this account functions exclusively for work-related bookings,” was insufficient to show that defendant was “clearly” informed to cease that conduct. Nor, in any event, is there any allegation that defendant continued the offending conduct after the email response was sent. All concur. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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