Summary
finding an information charging violation of this subsection sufficient where the communications were alleged to be insulting, degrading and, on one occasion, threatening, even if not a threat of violence
Summary of this case from Smith v. Town of LewistonOpinion
No. 2015NY032010.
09-22-2015
The PEOPLE of the State of New York v. Kevin SPRUILL, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Tanisha Palvia, for the People. The Legal Aid Society, by Sarah E. Trent, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Tanisha Palvia, for the People.
The Legal Aid Society, by Sarah E. Trent, Esq., for the Defendant.
STEVEN M. STATSINGER, J.
Defendant, charged with three counts of aggravated harassment in the second degree, Penal Law §§ 240.30(1)(a), 240.30(1)(b), and 240.30(2), moves to dismiss. He argues that there was no "true threat," as required by §§ 240.30(1)(a) and (b), and that the information fails to sufficiently allege that the communications had "no legitimate purpose," as required by § 240.30(2). For the reasons that follow, the motion to dismiss is GRANTED as to the counts charging violations of §§ 240.30(1)(a) and (1)(b), and DENIED as to that charging a violation of § 240.30(2). The Court grants the People leave to supersede, if they so choose.
I. FACTUAL BACKGROUND
A. The Allegations
Defendant stands accused of sending numerous harassing and insulting communications, by both text message and telephone, to the complainant, his ex-wife.
B. Legal Proceedings
Defendant was arraigned on May 22, 2015, on a misdemeanor complainant charging him with three counts of aggravated harassment in the second degree, under Penal Law §§ 240.30(1)(a), 240.30(1)(b), and 240.30(2). The Court set bail, and adjourned the case for conversion.
On May 27, 2015, by which time defendant had made bail, the People filed the complainant's Domestic Incident Report (the "D.I.R ."), and the Court deemed the misdemeanor complaint converted to an information.
Defendant filed the instant motion on June 26, 2015, and the People responded on July 21. The matter has been sub judice since then.
II. THE INFORMATION
The misdemeanor complaint, sworn to by Detective Salvator Tudisco on May 21, 2015, provides that
I am informed by [the complainant] that from approximately February 5, 2015 through February 9, 2015, she received numerous telephone calls and text messages from the defendant, in which the defendant stated to [her] in substance: I'm going to take your kids away. I won't send you anymore money. When I see you I'll punch you in the face. Watch your back. Bitch. Whore. Cunt.
I am further informed by [the complainant] that the defendant's above mentioned conduct caused [her] to feel annoyed, harassed, alarmed, and threatened, and to fear physical injury.
I am further informed by [the complainant] that she knew the telephone calls and text messages were from the defendant because she recognized the caller's voice to be that of the defendant, and she recognized the number from which the calls and messages came to be the defendant's phone number.
The Statement of Allegations sworn to by the complainant in the D .I.R. provides that:
My husband Kevin Spruill Sr, whom I am currently separated from since 11/20/13, has been harassing me through text messages and on going phone calls of him ranting about how much am no good, and that [I] am a bitch, and the only thing that was good for me worth having was the ass whopping that he gave me. I have told Kevin to stop calling and texting but he continues to fill my phone with all types of degrading things, name calling and he threatened to take everything away from me like our kids and house. He calls and text all hours of the night and day.
This document is dated February 9, 2015, and is subscribed to and verified by the complainant.
III. DISCUSSION
Defendant argues that, with respect Counts One and Two, which charge violations of Penal Law §§ 240.30(1)(a) and (1)(b), the information fails to allege a "true threat." He also argues that, with respect to Count Three, charging a violation of § 240.3(2), the information does not sufficiently allege the "no legitimate purpose" element, and fails to sufficiently allege that defendant's communications caused the complainant to fear for her safety. The Court agrees with the defendant's arguments regarding Counts 1 and 2, but not Count 3.
A. Facial Sufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." Kalin, 12 NY3d at 228–29, 906 N.E.2d at 383, 878 N.Y .S.2d at 655 (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N .Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as "the prima facie case requirement." Kalin, 12N.Y .3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N .Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.
Under these standards, the information is facially insufficient with respect to the counts alleging violations of Penal Law §§ 240.30(1)(a) and (1)(b).
B. The Court's Review is Limited to the Allegations Contained in the D.I.R.
There is a threshold question as to which set of facts the Court should analyze for facial sufficiency: those alleged in the misdemeanor complaint, or those described in the D.I.R. The two documents contain different facts, although the differences were not so extreme as to lead the Court to the conclusion that the D.I.R. failed to convert the complaint. See, e.g., People v. Morris, 44 Misc.3d 810, 991 N.Y.S.2d 288 (Crim Ct N.Y. County 2014) ("as long as the DIR and the misdemeanor complaint clearly refer to the same incident, and the DIR is not based on hearsay and is properly verified, it can convert a misdemeanor complaint into an information").
The issue is squarely presented because both parties have assumed that the Court would be reviewing the facts alleged in the misdemeanor complaint. Trent Aff. at ¶ 9, Palvia Aff. at ¶ 17. However, the Court concludes that the facial sufficiency of the information should be assessed based on the factual allegations in the D.I.R., since that document contains the only sworn, first-party account of what the defendant is alleged to have done.
The Court reached a related conclusion in People v. Walcott, 47 Misc.3d 1217(A) (Crim Ct N.Y. County 2015), where the supporting deposition contained a handwritten emendation that added facts. In reviewing the information for facial sufficiency, the Court examined both the facts alleged in the misdemeanor complaint and those alleged in the handwritten emendations. Id. The Court did so again in People v. Burke, 48 Misc.3d 1208(A) (Crim Ct N.Y. County 2015). There, the supporting deposition contained handwritten emendations that negated some of the facts contained in the misdemeanor complaint and contained both additional and different facts. When reviewing the information for facial sufficiency, the Court again "read together" the misdemeanor complaint and the supporting deposition. Id. See CPL § 100.40(1)(b)
The instant case is different in one material respect, however. In both Walcott and Burke, the document under review was a standard "short form" supporting deposition in which the complainant swore that she had read the misdemeanor complaint and that the facts in it attributed to her were true, apart from those that differed from those in the handwritten emendations. Id. Here, however, there is no short form supporting deposition. There is only the Statement of Allegations contained in the D.I.R, which does not reference the misdemeanor complaint. Indeed, it could not have since it was prepared months before the misdemeanor complaint was sworn to. So this is not a case where the Court can read the two documents together in considering the facial sufficiency of the information, as was true in Walcott and Burke. Rather, the Court's facial review is limited to the allegations contained in the D.I.R.
C. The Information is Facially Insufficient With Respect to Counts 1 and 2.
The Court finds that the two counts charging defendant with violating Penal Law §§ 240.30(1)(a) and (1)(b) are insufficient, in that none of the communications described in the information constitutes a "true threat."
A "threat" is a "communicated intent to inflict harm or loss on another or on another's property." People v. Williams, 46 Misc.3d 1208(A) (Crim Ct N.Y. County 2015), citations and internal quotation marks omitted. However, not every threat can be prosecuted as a crime. In order to comport with the First Amendment, "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." People v. Marquan M., 24 NY3d 1, 7, 19 N.E.3d 480, 485, 994 N.Y.S.2d 554, 559 (2014). "True threats" encompass "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 1548 (2003). Where the language at issue "is incapable of constituting a true threat, as a matter of law, the complaint should be dismissed." People v. Bonito, 4 Misc.3d 386, 777 N.Y.S.2d 900 (Crim Ct N.Y. County 2004).
In People v. Orr, 47 Misc.3d at 1213(A) (Crim Ct N.Y. County 2015), this Court extensively surveyed the landscape of "true threat" cases in New York. The Court determined that New York courts have consistently found that there is no "true threat" in those cases where the communication either did not contain a threat of future violence at all or the seeming threat was not sufficiently specific, and have consistently found that there is a "true threat" in cases where the communication conveyed a clear and unambiguous message that the recipient could not help but understand as a threat of future violence.
1. All but One of the Communications Are Not Threats at All.
Here, the vast majority of the communications described in the D.I.R. are not threats at all, although they are certainly abusive, insulting rants. Specifically, the following communications are not threats: Defendant's "ranting about how much am no good, and that am a bitch, and the only thing that was good for me worth having was the ass whopping that he gave me," and his "fill[ing the complainant's] phone with all types of degrading things, name calling."
As in Orr, these communications, although "unwanted," are not threats at all, let alone "true" ones, since they do not warn of future peril. See Orr, 47 Misc.3d at 1213(A) ("The phrases go kill yourself bitch' and you're not worth the air to take the jump bitch' are ... not threats, in that they do not warn the recipient of any sort of future harm.")
2. One Statement Is a Threat, but Not a "True Threat "
There is a single communication alleged in the D.I.R. that is a threat, in that it warns of future harm: "he threatened to take everything away from me like our kids and house." But this communication does not contain a "true threat" of an "act of unlawful violence." Black, 538 U.S. at 359, 123 S.Ct. at 1548.Additionally, the statement does not conform to somewhat narrower requirements of sections 240.30(1)(a) and (1)(b), in that it does not contain "a threat to cause physical harm to, or unlawful harm to the property of [the complainant] or a member of [her] same family or household." Penal Law §§ 240.30(1)(a), (1)(b).
3. Conclusion
The counts of the information charging defendant with violating Penal Law §§ 240.30(1)(a) and (1)(b) are facially insufficient.
D. Count 3 Is Facially Sufficient
The Court reaches a different conclusion with respect to the count charging defendant with violating Penal Law § 240.30(2). The information makes out a prima facie case as to this offense. Section 240.30(2) prohibits "mak[ing] a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication," with the intent to "harass or threaten." Here the information establishes that defendant's telephone calls lacked any "purpose of legitimate communication" other than to harass or threaten.
Section 240.30(2) criminalizes those telephonic communications, whether a conversation took place or not, that lack any "expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." People v. Shack, 86 N.Y.2d 529, 538, 658 N.E.2d 706, 712, 634 N.Y.S.2d 660, 666 (1995). Or, as the Court of Appeals put it in People v. Stuart, 100 N.Y.2d 412, 428, 797 N.E.2d 28, 41, 765 N.Y.S.2d 1, 14 (2003), "no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten."
Determining whether an information charging a violation of § 240.30(2) sufficiently pleads the "no legitimate purpose" element requires an examination of the context, timing and number of telephone calls, their content, if any, and whether those calls continued after a demand that they cease. See People v. Mitchell, 24 Misc.3d 1249(A), 899 N.Y.S.2d 62 (Crim Ct Bronx County 2009) (information facially sufficient; defendant called complainant 45 times in a single day, and left 10 threatening messages); People v. Bamba, 15 Misc.3d 1122(A), 841 N.Y.S.2d 220 (Crim Ct New York County) (2007) (three calls to complainant made early in the morning and late at night on same day that complainant told him not to call made out prima facie case that calls lacked legitimate purpose).
The Court begins by noting that, while the information describes both telephone calls and text messages, section 240.30(2), by its very terms, covers only "telephone calls." Sending one or more text messages with no legitimate purpose other than the intent to harass or threaten does not violate § 240.30(2). Bamba, 15 Misc.3d at1122(A), 841 N.Y.S.2d at 220. But see People v. Torres, 26 Misc.3d 1216 (A), 907 N.Y.S.2d 102 (Crim Ct N.Y. County 2010) (holding that this section "encompass[es] both texts and telephone calls as types of communication that may be unlawful"). In a case involving both telephone calls and text messages, however, the content of the text messages can be consulted to the extent it bears on the question of the defendant's intent.
Here, in the D.I.R., the complainant describes being bombarded by both unwanted texts and telephone calls from the defendant, without expressly identifying which specific communications were telephone calls. Even so, there is still a prima facie case that the defendant placed telephone calls to the defendant with no legitimate purpose other than to harass or threaten her. Since the statute covers only the placing of the calls, and not their content, the information need not describe the content of the calls with a high degree of specificity.
Here, the information provides some sense of the content of the calls, and the Court considers this first. Although the precise wording of each call is not separately laid out, in totality, the information describes communications that are insulting, degrading and, on one occasion, threatening, even if not a "true threat." This is not a case where the information alleges merely a "dispute" over the telephone, an allegation that might lack the specificity necessary to make out a prima facie case under § 240 .30(2). People v. Goris, 39 Misc.3d 1217(A), 975 N.Y.S.2d 368 (Crim Ct Kings County 2013). The description of the content of the telephone calls, as amplified by the content of the text messages that defendant was sending at the same time, shows that the communications lacked a legitimate purpose.
The number of communications and their timing bolsters this conclusion. While the precise number of calls is not alleged, the information nevertheless clearly describes a pattern comprising numerous calls, not just a single one. Moreover, the complainant has alleged that the calls occurred "all hours of the night and day." These facts together further lead to the inference that the calls lacked a legitimate purpose. Cf. People v. Thompson, 28 Misc.3d 483, 905 N.Y.S.2d 449 (Crim Ct Kings County 2010) (information that simply alleged that defendant repeatedly called complainant during a range of dates was insufficient; no allegation as to the number of calls, their frequency or timing).
Finally, the Court notes that the calls continued after the complainant told the defendant to stop, a fact that is also probative of the "no legitimate purpose" element. See People v. Coyle, 186 Misc.2d 772, 719 N.Y.S.2d 818 (Dist Ct Nassau County 2000) (repetition and tone of calls, and fact that they continued after complainant told defendant to stop, sufficiently pleads the "no legitimate purpose" element).
In their totality, the facts alleged in the information plead a prima facie case of Penal Law § 240.30(2). The information accordingly is facially sufficient as to Count Three,
E. Conclusion
Considering the allegations contained in the D.I.R., Counts One and Two are facially insufficient. Count Three is not.
IV. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss granted as to Counts One and Two, which charge violations of Penal Law § 240 .30(1)(a) and (1)(b), and denied as to Count Three, which charges a violation of Penal Law § 240.30(2).
This constitutes the Decision and Order of the Court.