Opinion
570952/98.
Decided March 11, 2004.
PRESENT: HON. WILLIAM P. McCOOE, J.P. HON. WILLIAM J. DAVIS HON. MARTIN SCHOENFELD, Justices.
Defendant appeals from a judgment of the Criminal Court, New York County, rendered May 8, 1998 after a jury trial (Arlene D. Goldberg, J.) convicting her of aggravated harassment in the second degree (Penal Law § 240.30 [three counts]) and harassment in the second degree (Penal Law § 240.26), and imposing sentence.
Judgment of conviction rendered May 8, 1998 (Arlene D. Goldberg, J.) modified, on the law, to vacate defendant's conviction of aggravated harassment in the second degree and to dismiss the counts of the accusatory instrument relating thereto; as modified judgment affirmed.
The underlying misdemeanor complaint charging aggravated harassment in the second degree (Penal law § 240.30) alleged that defendant, with the requisite harassing intent, "communicated" with the complainant by initiating "hang-up" telephone calls to the complainant's residence on specified dates over a three-week period. Conspicuously absent from the factual portion of the complaint was any allegation that the caller spoke or made audible sounds during any of the "hang-up" telephone calls alleged. In such form, the complaint failed to allege "facts of an evidentiary character" (CPL 100.15) demonstrating "reasonable cause" (CPL 100.40[b]) to believe that defendant "communicated" with the complainant within the meaning of Penal Law § 240.30, the only subdivision of the telephone harassment statute referenced in the accusatory instrument or invoked by the prosecution in this case. That section "has as a sinc qua non a completed phone call in which 'the defendant utter[s] words or otherwise communicate[s] in a manner likely to cause annoyance or alarm.'" ( People v. Shropshire, 181 Misc 2d 77, 80, quoting People v. Rusciano, 171 Misc 2d 908, 912; see also, People v. Viau, 50 NY2d 1052 [equating the term "communication" as used in § 240.30[1] with "statements"].) Thus, insofar as concerns the aggravated harassment counts pleaded, the accusatory instrument is jurisdictionally defective and must be dismissed ( see generally, People v. Dumas, 68 NY2d 729).
Defendant's arguments relating to her conviction of second-degree harassment (Penal Law § 240.26) are either unpreserved for appellate review or lacking in merit.