Opinion
Decided August 5, 2009.
Darcy Rydlun, Assistant District Attorney, for plaintiff.
Jeffrey P. Chartier, Esq. for defendant.
The defendant is charged with Aggravated Harassment in the Second Degree, Penal Law 240.30 (1) in that, on November 7, 2008, at about 9:54 PM at 335 Columbus Avenue in Tuckahoe,
"[w]ith intent to harass, annoy alarm or threaten another person, he or she (A) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm, or (B) causes a communication to be initiated by mechanical or electronic means or otherwise, with a person anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm, to wit; On the above date and time the defendant did call Mrs. Laura Salas, on her cell phone and left her a voice mail message."
The message, according to the information, contained vulgar statements about Mrs. Salas and her husband and warned that "[w]hen I catch you, I'm gonna gut you like a pig"
The information is signed by a police detective with Mrs. Salas's supporting deposition attached.
She states in her supporting deposition that she did not "know immediately who the caller was because the call came up as private and listed no phone number." She said that she was later informed by the detective that the "number listed on the cell phone record indeed belongs to Dave Buchy "(her former landlord). She was not surprised. She added that she was in fear of the defendant, wanted to file charges of aggravated harassment against him and requested an order of protection to protect her and her children from any further contact with him.
The defendant moves to dismiss the information because, among other reasons, Mrs. Salas did not know that the caller was the defendant until she was told by the detective who signed the information that the message originated from a cell phone belonging to the defendant, a hearsay statement.
An information must contain
"[n]on-hearsay allegations of the factual part of the information, and/or of any supporting depositions [to] establish, if true, every element of the offense charged and the defendant's commission thereof." CPL 100.40 (1) (c).
The identity of the caller was a fundamental element of the charge. Because Mrs. Salas's statement concerning the identity of the caller was based on hearsay, the detective's quoted statement in the supporting deposition, the information does not comply with CPL 100.40 (1) (c). The People's contention that the detective's knowledge came from phone business records which are admissible as business records at trial, does not overcome the fact that the imparting by him of that knowledge to Mrs. Salas constituted hearsay.
For the foregoing reasons, the defendant's motion to dismiss the information is granted.