Opinion
2015BX030697
11-30-2015
The People — Robert T. Johnson, District Attorney, Bronx County by Alina Levi, Assistant District Attorney Defendant — The Bronx Defenders by Joshua Schwartz
The People — Robert T. Johnson, District Attorney, Bronx County by Alina Levi, Assistant District Attorney Defendant — The Bronx Defenders by Joshua Schwartz Mary V. Rosado, J.
Defendant was originally charged by felony complaint with Assault in the Second Degree (Penal Law § 120.05 [1]), Assault in the Third Degree (Penal Law § 120.00 [1]) and Harassment in the Second Degree. All charges in the felony complaint were dismissed on August 3, 2015 and therefore, this court cannot consider the facts contained therein.
Defendant is presently charged by superseding information with Aggravated Harassment in the Second Degree (Penal Law § 240.30 [1] [a]) and Harassment in the Second Degree (Penal Law § 240.26 [1]). By Notice of Motion dated September 2, 2015, Defendant moves for the dismissal of all charges for facial insufficiency and for other relief. By Affirmation in Opposition dated September 9, 2015, the People oppose dismissal arguing that the accusatory instrument is facially sufficient. In rendering a decision, this Court reviewed Defendant's Notice of Motion dated September 2, 2015, People's Affirmation in Opposition dated September 9, 2015, the court file, and relevant statutes and case law.
Defendant's motion to dismiss the charges of Aggravated Harassment in the Second Degree and Harassment in the Second Degree is granted.
Factual Allegations
The superseding information alleges, in pertinent part, that on or about June 28, 2015, at approximately 8:24 PM, inside of 4030 Bronx Boulevard, Apartment 6C, the following occurred:
Deponent states that, at the above time and place, her residence, defendant called her mobile telephone and left a voicemail stating, in sum and substance, 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.
Deponent further states that she has known defendant for approximately ten (10) years and has spoken to defendant numerous times over the telephone and recognized the voice on said voicemail message to be that of defendant.
Deponent further states that as a result of defendant's conduct, she experienced annoyance, alarm, and fear for her physical safety. Deponent further states that her seven year old son lives with her and she is in fear for his physical safety.
Facial Sufficiency
To be facially sufficient, an accusatory instrument "must designate the offense or offenses charged" (CPL § 100.15 [2]) and "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL § 100.15 [3]). More specifically, an information must provide "reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information" and must contain "non-hearsay allegations . . . [that] establish, if true, every element of the offense charged and the defendant's commission thereof" (People v Henderson, 92 NY2d 677, 679 [1999]; See CPL § 100.40 [1]).
The Court of Appeals has stated that CPL § 100.40 (1) places "the burden on the People to make out their prima facie case for the offense charged in the text of the information" (People v Jones, 9 NY3d 259, 261 [2007]). It should be noted that the prima facie case requirement is not the same as the burden required at trial of proof beyond a reasonable doubt, "nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at the trial" (People v Kalin, 12 NY3d 225, 230 [2009]). Rather, what is required is that the factual allegations in the 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" (Id. at 230 [internal citations and quotations omitted]). Ultimately, the information "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).
Aggravated Harassment in the Second Degree
Penal Law § 240.30 (1) (a) provides that:
With the intent to harass another person, the actor communicates, anonymously or otherwise, by telephone a threat to cause physical harm to, or unlawful harm to the property of, such person, a member of such person's same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, 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, or to the physical safety or property of a member of such person's same family or household .
Therefore, the elements of the offense are (1) intent to harass another, (2) causation of a communication, (3) of a threat to cause physical harm, and (4) knowing or having reason to know that the recipient of the communication will reasonably fear harm of physical safety.
Since Penal Law § 240.30 (1) (a) criminalizes certain types of speech alone, a defendant's communication may invoke free speech protection. "Unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" (People v Dietze, 75 NY2d 47, 51 [1989], citing Terminiello v Chicago, 337 US 1, 4-5 [1949]).
Only particular kinds of communication may be prohibited, such 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 [2014]).
True threats are those that "by their utterance alone, inflict injury or tend naturally to evoke immediate violence" (People v Golb, 23 NY3d 455, 467 [2014], quoting Dietze at 52). In order for a communication to qualify as a true threat, "an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury" (People v Olivio, 6 Misc 3d 1034[A], *2 [Crim Ct, New York County 2005] [internal citations omitted]). Furthermore, a true threat is one that is "clear, unambiguous, and immediate" (People v Orr, 47 Misc 3d 1213[A], *2 [Crim Ct, New York County 2015]; People v Brodeur, 40 Misc 3d 1070, 1073 [Crim Ct, Kings County 2013]; People v Yablov, 183 Misc 2d 880, 886 [Crim Ct, New York County 2000]).
In the instant matter, the accusatory instrument fails to allege that Defendant communicated a true threat of physical harm. Defendant's statement "I'm going to put you and David in jail 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" lacks the characteristics of a true threat. It is not a statement that tends naturally to evoke immediate violence because it is unclear what is actually being threatened.A true threat is "serious, should reasonably have been taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst" (Dietze, supra at 53-54).
It is unknown from the factual allegations what Defendant did to David or what he means to do to Complainant. In their response papers, the People assert that Defendant caused physical injuries to David that required surgical implantation of a metal plate in the jaw (People's Affirmation in Opposition at p. 4). Those allegations, however, do not appear in the accusatory instrument and cannot be considered for purposes of facial sufficiency (See People v Thomas, 4 NY3d 143 [2005]; People v Lloret, 48 Misc 3d 829 [Crim Ct, Bronx County 2015] [allegations contained solely in the People's motion papers are not within the four corners of the accusatory instrument]). Additionally, any alleged admission regarding an assault on David only appears in the statement notice made pursuant to CPL § 710.30. Statement notice is not within the four corners of the accusatory instrument and also cannot be relied upon (See People v Barona, 19 Misc 3d 1122 [A], *1 n 2 [Crim Ct, New York County 2008]). Therefore, Defendant's alleged threat is reduced to "You're going to see what's going to happen to you." That statement is too ambiguous and uncertain to constitute a true threat (E.g. People v Khaimov, 26 Misc 3d 1202 [A] [Crim Ct, New York County 2009] ["something serious is going to happen to you"]; cf. People v Rodriguez, 49 Misc 3d 867 [Crim Ct, Bronx County 2015] ["I'm going to beat the f*** out of you"]).
The accusatory instrument is facially insufficient as to the charge of Aggravated Harassment in the Second Degree. The information fails to provide reasonable cause to believe Defendant committed the offense charged because there are no factual allegations that Defendant communicated a true threat.
Harassment in the Second Degree
Penal Law § 240.26 (1) states that "a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same."
Defendant is not alleged to have made physical contact with Complainant. This charge hinges on the same statement that serves as the basis for the Aggravated Harassment in the Second Degree charge. As previously discussed, Defendant's alleged statement is not a true threat. Therefore, the Harassment in the Second Degree charge must also be deemed facially insufficient (See People v Tackie, 46 Misc 3d 1218[A] [Crim Ct, Bronx County 2015]). Defendant's motion to dismiss the charges of Aggravated Harassment in the Second Degree and Harassment in the Second Degree is granted. The People have thirty (30) days leave to file a superseding information.
The remaining branches of Defendant's motion are rendered moot.
This constitutes the Decision and Order of the court. Dated: November 30, 2015 Bronx, New York _______________________ Mary V. Rosado, J.C.C.