Opinion
No. CR-015853-21BX
07-05-2022
The People of the State of New York v. Benavente, Defendant.
For the People: Darcel Clark, District Attorney of Bronx County (By ADA Kevin Risch) For Ms. Benavente: Julie B. Rendelman Esq.
Unpublished Opinion
For the People: Darcel Clark, District Attorney of Bronx County (By ADA Kevin Risch)
For Ms. Benavente: Julie B. Rendelman Esq.
Wanda L. Licitra, J.C.C.
The People charge Ms. Benavente-a 24-year-old woman with no criminal record-with second-degree aggravated harassment. That charge, a violation of P.L. § 240.30(1)(a), is a class A misdemeanor punishable by up to 364 days in jail. To establish this charge, the People have filed an information accusing Ms. Benavente of calling another woman on the telephone and saying, in full: "That's why you had daddy issues. That's why you got molested. I'm gonna tell everyone you got molested. Here's my address, pull up. I know where you hang out."
The defense has filed a motion to dismiss. They allege that the People's information is facially insufficient to make out the crime charged. Therefore, they reason, the People never validly stated ready within their speedy-trial timeframe under C.P.L. § 30.30(1)(b). As a result, the question before the Court is whether calling someone on the telephone and saying the alleged offensive sentences establishes the class A misdemeanor of second-degree aggravated harassment. In reviewing the parties' submissions and the relevant case law, the Court concludes it does not. Accordingly, the defense's motion is GRANTED, and the case is dismissed.
PROCEDURAL HISTORY
There is no dispute about the procedural history. On October 30, 2021, Bronx Criminal Court arraigned Ms. Benavente on an information charging her with violating P.L. § 240.30(1)(a). The factual allegations of the information allege, in full, that:
[D]efendant called informant on the telephone and threatened to disclose personal sensitive information about crimes that informant was a victim of in the past. Defendant stated to informant in sum and substance "That's why you had daddy issues. That's why you got molested. I'm gonna tell everyone you got molested. Here's my address, pull up. I know where you hang out."
Deponent is further informed by informant that informant and defendant had both been previously involved with the same man. Deponent is further informed by informant that informant has spoken to defendant approximately twenty (20) times over the past two (2) years and recognized defendant's voice when she called on September 13.
Deponent is further informed by informant that, as a result of defendant's aforementioned actions, deponent experienced annoyance and alarm.Information at 1-2. Violating P.L. § 240.30(1)(a) is a class A misdemeanor punishable by up to 364 days in jail.
In their response to the defense's motion to dismiss, the People have made additional allegations-namely, that Ms. Benavente has been making "harassing phone calls" to the complainant "for two years." Resp. at 6. This allegation is unsworn and appears only in the People's response, not in the sworn complaint or supporting deposition. In accordance with fundamental facial sufficiency principles, the Court refuses to consider this allegation. An information "must set forth the required non-hearsay evidentiary allegations within 'the four corners of the instrument itself.'" People v. Thomas, 4 N.Y.3d 143, 146 (2005) (quoting Preiser, Practice Commentaries, C.P.L. § 100.10); see also People v. Hardy, 35 N.Y.3d 466, 475 (2020) ("[I]n evaluating the sufficiency of an accusatory instrument we do not look beyond its four corners."); People v. Gibbs, 50 Misc.3d 1202 (A), at *3 (Bronx Cty. Crim. Ct. 2015) ("Those allegations, however, do not appear in the accusatory instrument and cannot be considered for purposes of facial sufficiency."); People v. Lloret, 48 Misc.3d 829 (Bronx Cty. Crim. Ct. 2015) (noting that allegations solely in the People's motion papers cannot be considered for facial sufficiency); People v. Nwogu, 22 Misc.3d 201, 205-206 (Queens Cty. Crim. Ct. 2008) ("The new facts contained in the People's opposition,... and not contained in the information, cannot be considered in deciding this motion and thus do not cure any of the information's jurisdictional defects.").
At arraignment, Ms. Benavente pled not guilty. The People were not ready for trial, and the court adjourned the case to December 14, 2021. On that day, the People were again not ready for trial, and the court adjourned the case to January 31, 2022. Off calendar, on January 26, 2022, the People filed a certificate of discovery compliance and stated ready for trial. On January 31, 2022, the Court set a motion schedule. On that schedule, the defense filed the instant motion.
LEGAL ANALYSIS
I. The People may only state ready upon filing a facially sufficient information.
In a case charging only a class A misdemeanor, the People have 90 days from arraignment to file a facially sufficient information and state ready for trial. C.P.L. § 30.30(1)(b). The People must do both. A statement of readiness is invalid where the People have not yet filed a facially sufficient information. People v. Colon, 59 N.Y.2d 921, 921 (1983) (adopting the lower court's opinion that the "People cannot be ready for trial... if they have not converted the complaint[] to [a] jurisdictionally sufficient information"); People v. Herbas, 47 Misc.3d 154 (A), at *1 (1st Dep't App. Term 2015) (affirming dismissal where "the People failed to convert the accusatory instrument into a facially sufficient information within the [C.P.L. § 30.30] period").
An information is only facially sufficient if it contains non-hearsay evidentiary factual allegations that, if true, establish "every element" of the charged offenses. C.P.L. § 100.40(1)(c); People v. Sumter, 151 A.D.3d 556, 558 (1st Dep't 2017) (rejecting the dissent's argument that not "every element" must be established for an information to be facially sufficient). This standard-also called a "prima-facie case"-is "necessary because of the 'unique function that an information serves under the [C.P.L.].'" People v. Parsons, 69 Misc.3d 11, 14 (1st Dep't App. Term 2020) (quoting People v. Alejandro, 70 N.Y.2d 133, 137 (1987)). Unlike an indictment, which requires support "by legally sufficient evidence before a Grand Jury," an information is an accusatory instrument for which "the People need not, at any time prior to trial, present actual evidence demonstrating a prima facie case." Alejandro, 70 N.Y.2d at 137-38 (internal citations omitted). Under the 2020 reforms to the C.P.L., this requirement has only become more important. Criminal Procedure Law § 30.30(5-a) now explicitly requires that the People certify that "all counts" are facially sufficient before a statement of readiness may be "valid."
II. A facially sufficient information charging a violation of P.L. § 240.30(1)(a) must contain a true threat of physical harm to a person or unlawful harm to property.
This case alleges a violation of the penal law based solely on a person's speech. As applicable here, P.L. § 240.30(1)(a) criminalizes speech where someone:
[C]ommunicates... by telephone... a threat to cause physical harm to, or unlawful harm to the property of, such person... and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property.
On its face, this statute does not criminalize all threats. It only criminalizes threats "to cause physical harm" to a person and threats to cause "unlawful harm" to a person's property. Id.
In addition, however, under the U.S. Constitution, the government may not criminalize all threats of harm to people or property-it may only criminalize "true threats." Paruchuri v. Akil, 156 A.D.3d 712, 714 (2d Dep't 2017) (noting that P.L. § 240.30(1) only criminalizes "true threats of physical harm" to a "person" or "unlawful harm" to "property"). "True threats" are "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 a group of individuals." Virginia v. Black, 538 U.S. 343, 359 (2003). The government is restrained in this way because under the First Amendment, it may only enact content-based regulations on a limited set of specific types of speech. In fact, generally, the government has "no power" to restrict speech simply "because of its message, its ideas, its subject matter, or its content." People v. Marquan M., 24 N.Y.3d 1, 7 (2014). As a result, "prohibitions of pure speech must be limited to communications" that fall outside the ambit of the First Amendment entirely. See id. These are statements that qualify as "fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct." Id. Outside of these "recognized categories," speech generally "cannot be curtailed by the government" simply because of its content. Id.
In April of 2015, Judge Steven Statsinger exhaustively surveyed how New York courts have applied the "true threat" standard. He concluded that New York courts consistently find that there is no "true threat" where the alleged communication "did not contain a threat of future injury at all" or where "the seeming threat was not sufficiently specific." People v. Orr, 47 Misc.3d 1213 (A), at *4 (NY Cty. Crim. Ct. 2015); see also People v. Slawomir, 58 Misc.3d 208, 210-11 (NY Cty. Crim. Ct. 2017) (concluding the same). Judge Statsinger noted that "unwanted, even highly offensive" communications have failed to constitute true threats, where either "no potential future injury was specified" or the "injury threatened was not one covered by the statute." Orr, 47 Misc.3d 1213(A), at *4.
Some of the cases Judge Statsinger collected that found no true threat include:
• People v. Tackie, 46 Misc.3d 1218 (A) (Bronx Cty. Crim. Ct. 2015) ("Don't let me use my boxing on you.")
• People v. Thompson, 28 Misc.3d 483 (Kings Cty. Crim. Ct. 2010) ("I am on my way over there" and then appeared outside the complainant's building).
• People v. Yablov, 183 Misc.2d 880 (NY Cty. Crim. Ct. 2000) (Edmead, J.) ("I'll get you.")
• People v. Bonitto, 4 Misc.3d 386 (NY Cty. Crim. Ct. 2007) ("I'm going to have to call you.")
• People v. Khaimov, 26 Misc.3d 1202 (A) (NY Cty. Crim. Ct. 2009) ("Watch your step or something is going to happen to you. Stop calling him about child support. Your daughter is a prostitute.")
• People v. Pierre-Louis, 34 Misc.3d 703 (Nassau Cty. Dist. Ct. 2011) ("I'm coming at you with fury," "bitch, you will lose your fucking job," "I got all the juice enough to make sure that you're holding a can in the fucking street," "I will rain hell on your office and make sure heads roll," amongst other statements).
Orr itself, where Judge Statsinger found no true threat, involved the statements, "I can have you handled," "go kill yourself bitch," and "you're not worth the air to take the jump bitch." Orr, 47 Misc.3d 1213(A), at *4.
In reviewing the cases decided since Judge Statsinger's analysis, this Court finds his thesis to remain true. Since 2015, New York courts have continued to only find "true threats" where the alleged communication contained a specific threat of future injury. Where either element was missing, courts found that there was no true threat. For instance, no true threat was found in these cases:
• People v. Spruill, 49 Misc.3d 1202 (A) (NY Cty. Crim. Ct. 2015) ("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.")
• People v. Gibbs, 50 Misc.3d 1202 (A) (Bronx Cty. Crim. Ct. 2015) ("David tried to touch me. David is a rapist. I'll have to defend myself if he tries to touch me again. I'm going to put you and David in jail. David owes me money. Watch when I see you. I don't know why you have to involve the police. This has nothing to do with you. If you think it's bad what I did to David, you're going to see what's going to happen to you.").
• People v. Powell, 53 Misc.3d 1213 (A) (Bronx Cty. Crim. Ct. 2016) ("You fucking bitch now you got the cops involved. Don't let me get you. Why are you lying. I don't know who you think you are. Remember you have to pass around where I see you.")
• People v. DePasquale, 55 Misc.3d 1215 (A) (Kings Cty. Crim. Ct. 2017) ("You ain't low and watch when I found you, come outside, leave the kid.")
• People v. Grammatico, 54 Misc.3d 1203 (A) (Monroe Cty. Just. Ct. 2017) ("I am going to hurt you and make you pay for what you did to me, gold digging bitch.")
III. The information here does not allege a true threat of physical harm to a person or unlawful harm to property, and therefore it is facially insufficient.
In this case, the information does not allege a true threat of physical harm to a person or unlawful harm to property. Indeed, like in Orr, many of the statements here are "not threats at all," let alone true ones. See 47 Misc.3d at 1213(A), at *5. Statements like "that's why you had daddy issues" and "that's why you got molested," Information at 1, are "clearly efforts to insult and degrade the complainant," see Orr, 47 Misc.3d at 1213(A), at *5. "But they are not threats." See id. The statement "I'm gonna tell everyone you got molested" is arguably a threat, but it does not threaten physical harm to a person or unlawful harm to property, which are the only types of threats that P.L. § 240.30(1) criminalizes. The remaining statements "here's my address, pull up" and "I know where you hang out" are too vague to constitute "true threats." They are analogous to other statements that New York courts have found too vague to constitute true threats, as noted above, like "I am on my way over there," "something is going to happen to you," "I'll get you," "watch your step," or "come outside, leave the kid."
To be clear, the facial defect here is not, as the People construe it, that "innocent inferences could also be drawn from the facts alleged." Resp. at 4. The defect is that no criminal inferences could be drawn from the facts alleged, and certainly none that would establish a true threat of physical harm to a person or unlawful harm to property. As a result, the information is facially insufficient to make out the charged offense.
CONCLUSION
The Court concludes that the information does not allege a true threat of physical harm to a person or unlawful harm to property. Therefore, it is facially insufficient to establish a violation of P.L. § 240.30(1)(a). Because the People failed to file a facially sufficient information before stating ready for trial, their statement of readiness was invalid. As a result, the People accrued speedy-trial time from arraignment to the date the Court set a motion schedule. That was from October 30, 2021, to January 31, 2022, a period of 93 days. Because the People failed to validly state ready within their allotted 90 days from arraignment, the Court must GRANT the defense's motion. C.P.L. § 30.30(1)(b). The case is dismissed.
In light of this decision, the defense's remaining motions are moot.
The foregoing constitutes the Decision and Order of the Court.