Opinion
2005KN018408.
Decided August 4, 2005.
The decision and order dated August 1, 2005 is recalled and the instant corrected decision and order is substituted therefor.
The defendant is charged with Menacing in the Third Degree (PL § 120.15), Criminal Contempt in the Second Degree (PL § 215.50), and two counts of Harassment in the Second Degree (PL § 240.26 and § 240.26). The defendant moves pursuant to CPL §§ 170.35 and 100.40 to dismiss the charges as facially insufficient. The People oppose.
The accusatory instrument alleges, in pertinent part, that on or about March 24, 2005, at approximately 11:20 pm at 417 Morgan Avenue, Brooklyn:
. . . the defendant did approach the informant [Elizabeth Alvarado] and questioned her about her current relationship status and defendant followed the informant and stated that if informant called the police again, informant had better watch her back and her children's back.
The deponent [District Attorney's paralegal Alexis White] is further informed by informant that the above described actions caused informant to fear physical injury and to become alarmed and annoyed.
Deponent states that the above-described conduct by defendant was in violation of a 3/8/05 order of protection issued by Judge Toussaint in Criminal Court under docket number 2005KN006445 in effect until 4/12/05, and ordering the defendant to refrain from assaulting, harassing, menacing, intimidating or threatening the informant.
Deponent further states that deponent's basis for believing that defendant had knowledge of the above-described order of protections is as follows: that order is endorsed" Defendant present in court."
The People converted the complaint to an information by serving and filing the supporting deposition of Elizabeth Alvarado and a certified copy of the underlying order of protection. This limited order of protection directed the defendant to "refrain from assault, stalking, harassment, menacing . . . intimidation, threats or any criminal offense or interference with" the complainant. It also permitted the defendant to continue to reside at 50 Debevoise Avenue, Apt. 4C.
To constitute a facially sufficient information, the accusatory instrument must contain (1) facts of an evidentiary nature which support or tend to support the crimes charged [CPL § 100.15(3)]; People v. Dumas, 68 NY2d 729 (1986)]; (2) factual allegations in the information and supporting deposition that provide reasonable cause to believe that the defendant committed the crimes charged [CPL § 100.40 (1)(b)]; and (3) non-hearsay allegations which establish, if true, every element of the crimes charged. [CPL § 100.40(1)(c); People v. Alejandro, 70 NY2d 133 (1987)]. Mere conclusory allegations will not suffice ( People v. Dumas, supra) and a purported information which fails to satisfy these requirements is facially defective. People v. Alejandro, supra at 139.
In reviewing an accusatory instrument for facial sufficiency, "[s]o 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 . . ." the court should give it "a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000). Moreover, in deciding this motion the court must confine its analysis to the allegations contained solely in the complaint and any depositions filed in support of it. See, People v. Alejandro, supra at 138; see also, People v. Konieczny, 2 NY3d 569, 576 (2004); People v. Voelker, 172 Misc 2d 564 (Crim Ct, Kings County 1997); People v. Pelt, 157 Misc 2d 90 (Crim Ct, Kings County 1993). "[T]he court may not consider any extraneous allegations contained in a motion to dismiss or an answer to a motion to dismiss." People v. . Voelker, supra at 569.
Menacing in the Third Degree
The defendant contends that the charge of Menacing in the Third Degree must be dismissed because there are no allegations that he acted with "physical menace" given that he simply followed the complainant and had words with her. Further, the defendant asserts that the charge should likewise be dismissed because there are no allegations that the complainant had a fear of "imminent" physical injury.
In response, the People contend that this charge is sufficient because it alleges that the defendant's conduct of following the complainant placed her in fear of injury. Given that the defendant has three earlier open cases alleging similar conduct against the complainant, with orders of protection issued in each, the defendant's "physical act of following alone could certainly inspire in a reasonable person the fear of imminent injury." (People's Affirmation in Opposition, p. 5-6).
The defendant is charged with violating Penal Law § 120.15 which provides that "[a] person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury." In order to satisfy the physical menace element of this crime, it must be alleged that the defendant committed a physical act which, in and of itself, placed another person in fear of imminent injury. Compare, People v. Pizzarro, NYLJ, Sept. 16, 1999, at 35, col.6 (Crim Ct, Kings County) (defendant's act of holding weapon to complainant's head and threatening to kill her constituted a physical menace) with People v. Stephens, 100 Misc 2d 267 (Dist Ct, Suffolk County 1979) (defendant's statement that he had a gun and would blow the complainant's head off, followed by act of reaching into his pocket, did not); see also, People v. Sylla, 7 Misc 3d 8, 2005 NY Slip Op. 25031 (App. Term, 2nd 11th Jud. Dist. 2005).
The only pertinent allegations (i.e., those contained within the four corners of the accusatory instrument and the supporting deposition) are that the defendant approached the complainant, questioned her about her current relationship status, followed her and told her that if she called the police again she had better watch her back and her children's back. The People's reliance upon facts derived from any other sources is impermissible. That the defendant may indeed have three open cases with the same complainant does not provide a context for evaluating whether the defendant's act of following the complainant in the instant case inspired the requisite fear of imminent physical injury, as such facts are not alleged in the accusatory instrument. Compare, People v. Payton, 161 Misc 2d 170 (Crim Ct, Kings County 1994) (information contained allegations detailing an ongoing course of assaultive conduct that could be considered in conjunction with the act of following complainant)."Oral statements made by the defendant, alone, are generally insufficient to support the charge of menacing. Words must be accompanied by physical action." People v. Dooley, NYLJ, April 21, 2000, at 29, col 4 (Crim Ct, Kings County 2000), citing People v. Ramon M., 109 AD2d 882 (2nd Dept. 1985); People v. Sylla, supra. The defendant correctly notes that the only physical act alleged in the accusatory instrument is that the defendant followed the complainant. Such conduct is clearly not sufficient, in and of itself, to inspire fear of imminent physical injury. The defendant's act of following the complainant, even when coupled with his alleged threat of future harm if the complainant called the police again, is still insufficient to make out the element of fear of imminent physical injury. People v. Diaz, 146 Misc 2d 260 (Crim Ct, Bronx County 1990) (defendant's threat to cut off the complainant's head and shoot him if he cooperated with the police was insufficient to constitute a threat of imminent physical injury under former PL § 120.15 statute); People v. Vazquez, 136 Misc 2d 1057 (Crim Ct, NY County 1987) (defendant's threat to use gun on complainant "next time" was insufficient to constitute a threat of imminent physical injury under former PL § 120.15 statute).
The current menacing statute PL § 120.15 statute and the former PL § 120.15 statute both require that the defendant place or attempt to place another person in fear of "imminent . . . injury." Thus, these cases remain instructive.
Accordingly, that portion of the defendant's motion is granted.
Harassment in the Second Degree — PL § 240.26(1)
The defendant contends that the charge of Harassment in the Second Degree in violation of PL § 240.26(1) is facially insufficient because there is no allegation that he subjected the complainant to physical contact or attempted or threatened to do so. He argues further that, had he expressly threatened physical contact (though he denies doing so), under People v. Dietze, 75 NY2d 47 (1989) his statement to the complainant could be considered nothing more than a crude outburst which should be accorded constitutional protection, given that the alleged threat was equivocal and without specificity as to the time, place and manner of the threatened harm.
The People argue that the defendant's intent to harass, annoy or alarm the complainant can be implied from the alleged acts themselves. Moreover, the People contend that the defendant's threat that the complainant "had better watch her back and her children's back" sufficiently makes out the element that the defendant threatened to strike, shove, kick or otherwise subject the complainant to physical contact. The People assert that Dietze is inapplicable to facial sufficiency cases because that case involved a review of the facts only after a full contextual analysis at trial. Finally, the People note that "because of the prior complaints [against the defendant] and because a limited order of protection had been issued against the defendant [the complainant] had more reason to fear that the defendant would injure her." (People's Affirmation in Opposition, p. 7).
The defendant is charged with violating Penal Law § 240.26(1) which provides that: "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: (1) He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same."
The accusatory instrument lacks any allegation that the defendant subjected or attempted to subject the complainant to physical contact. The only question that remains is whether the defendant's warning to the complainant, that if she called the police again she had better watch her back and her children's back, in and of itself, constitutes a threat of physical contact to the complainant. Contrary to the People's contention, the court cannot evaluate this accusatory instrument by incorporating knowledge that the defendant has a number of other criminal cases pending which may involve physical contact with the complainant. Thus, in the absence of any context for the relationship between the complainant and the defendant spelled out in the accusatory instrument the court cannot conclude that the threat made by the defendant is clearly one of physical contact ( see, People v. Payton, supra). As such, this charge is facially insufficient.
Accordingly, that portion of the defendant's motion is granted.
Given today's ruling, this court need not address defendant's argument under People v. Dietze.
Harassment in the Second Degree — PL § 240.26(2)
The defendant contends that this charge is facially insufficient because the allegation in the accusatory instrument that he "followed" the complainant is conclusory. Moreover, the defendant argues that the mere recitation of the statutory language, i.e. following, is insufficient. Given that the underlying limited order of protection permits him to reside in the building next to the address at which this incident is alleged to have occurred, the defendant asserts, the complainant's basis for concluding that he was following her is unclear.
The People maintain that this allegation is not conclusory.
The defendant is charged with violating Penal Law § 240.26(2) which provides that: "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: (2) He or she follows a person in or about a public place or places."
Some words have a plain, ordinary and common meaning while others are given a more technical meaning by statutory definition and caselaw. In the wake of People v. Dumas, supra, a number of phrases used in accusatory instruments were attacked as "conclusory" because they were included in the statutes being charged. Among these were "solicit," "agreed," "offer for sale," "alter," "offer and agree" and "in possession." See, People v. Allen, 92 NY2d 378 (1998); People v. Versuggi, 83 NY2d 123 (1994); People v. Miles, 64 NY2d 731 (1984); People v. Hilo, 2004 NY Slip Op. 50713(U) (App. Term, 2nd 11th Jud. Dist. 2004); People v. Ortiz, 146 Misc 2d 594 (App. Term, 2nd Dept. 1990). In each of these cases, the word or phrases used in the factual portion of the accusatory instrument were found to be sufficiently evidentiary in character to satisfy the Criminal Procedure Law despite the fact that they mirrored the language in the statute.
"Follow" is defined in Black's Law Dictionary (5th ed 1995) as "to go, proceed or come after." Giving "follow" its plain, ordinary and common meaning, its use in the accusatory instrument is, by itself, sufficiently evidentiary and descriptive so as to inform the defendant of the conduct that he is alleged to have violated, enabling him to prepare his defense. Nothing more is required at the pleading stage. The specific manner in which the defendant may have followed the complainant is a matter for trial. See, People v. Richardson, 2002 NY Slip Op. 40150(U) (Crim Ct, Kings County 2002); People v. Polianskaia, 189 Misc 2d 237 (Crim Ct, NY County 2001).
The defendant's argument regarding the proximity of the building where he lives and the address in front of which the conduct alleged in the accusatory instrument took place is one the court cannot reach, given that the argument is based on facts outside the four corners of the accusatory instrument. It is also an evidentiary matter best considered at trial.
Further, from the defendant's conduct of walking up to the complainant at 11:20 pm to ask about her current relationship, following her and then warning her that if she called the police that she should watch her back and her children's backs, it can be inferred that the defendant acted with the intent to harass, annoy or alarm the complainant. See, People v. Strong, 179 Misc 2d 809 (App. Term, 2nd Dept. 1999) (court may infer intent from crime itself).
Accordingly, that portion of the defendant's motion is denied.
Criminal Contempt in the Second Degree — PL § 215.50(3)
The defendant contends that the charge of Criminal Contempt in the Second Degree is facially insufficient given that the other charges in the accusatory instrument are facially insufficient and the People have not alleged any independently unlawful act in violation of the order of protection. The People oppose.
The defendant is charged with violating Penal Law § 215.50(3) which provides that: "[a] person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: (3) Intentional disobedience or resistance to the lawful process or other mandate of the court. . . ."
To make out the charge of criminal contempt, the accusatory instrument must allege that a lawful order of the court clearly expressing an unequivocal mandate was in effect, that the defendant had knowledge of its provisions, and that the defendant intentionally disobeyed it. See, People v. Inserra, 4 NY3d 30 (2004); Matter of McCormick v. Axelrod, 59 NY2d 574 (1983); People v. Nawaz, 183 Misc 2d 195 (Crim Ct, Kings County 1999).
In reviewing the facial sufficiency of a criminal contempt charge, the court may consider the information contained in the underlying certified order of protection to corroborate and amplify the allegations contained in the accusatory instrument ". . . concerning the existence and terms of the judicial mandate defendant was alleged to have violated." See, People v. Konieczny, supra at 576. Under those circumstances, it is the functional equivalent of a supporting deposition. Id.
The instant accusatory instrument, as supported by the March 8, 2005 certified order of protection, alleges in non-hearsay fashion that the defendant intentionally engaged in conduct, inter alia, harassment in the second degree (PL § 240.26), in violation of the limited order of protection issued by Judge Toussaint under Docket Number 2005KN006445 in effect until 4/12/05, ordering the defendant to refrain from assaulting, harassing, menacing, intimidating or threatening the informant. The accusatory instrument further alleges that the deponent's basis for believing that the defendant had knowledge of the order of protection is that the order itself was endorsed: "Defendant present in court." This supports the element of knowledge required to make out the offense.
Since the court has held, infra, that the charge of PL § 240.26(2) is facially sufficient, the defendant's claim that the accusatory instrument does not allege an independently unlawful act in violation of the order of protection is also without merit.
Accordingly, that portion of the defendant's motion is denied.
The charges of Menacing in the Third Degree (PL § 120.15) and Harassment in the Second Degree (PL § 240.26) are dismissed and the charges of Criminal Contempt in the Second Degree (PL § 215.50) and Harassment in the Second Degree (PL § 240.26) are retained for trial.
This opinion constitutes the decision and order of the Court.