Opinion
Docket: CR-022948-20KN, Docket: CR-023423-20KN
02-07-2022
The PEOPLE of the State of New York v. Gary GOLDSTEIN, Defendant.
For the People:Lino J. De Masi, Assistant District Attorney, Office of the Kings County District Attorney For the Defendant:Miriam Gentile, Attorney at Law, Brooklyn Defender Services
For the People:Lino J. De Masi, Assistant District Attorney, Office of the Kings County District Attorney
For the Defendant:Miriam Gentile, Attorney at Law, Brooklyn Defender Services
Joshua Glick, J.
Procedural History:
Defendant is charged under two (2) dockets by superseding informations filed with the court .
As counsel, facts, and issues are similar in both dockets, this court will address both motions in this decision and order.
Under CR-022948-20KN (hereinafter xxx948) defendant is charged with four (4) counts of Penal Law (PL) 240.30 (2), Aggravated Harassment in the Second Degree, and under one of the four counts defendant is also charged with PL 240.30 (1) (a) and 240.30 (1) (b), Aggravated Harassment in the Second Degree.
Under CR-023423-20KN (hereinafter xxx423) defendant is charged with three (3) counts of PL 240.30 (2), Aggravated Harassment in the Second Degree; and under one of the three counts defendant is also charged with PL 240.30 (1) (a) and 240.30 (1) (b), Aggravated Harassment in the Second Degree.
Defendant moves to dismiss the dockets on the ground that the accusatory instruments are defective pursuant to Criminal Procedure Law (CPL) 100.15, 100.40, and 70.10, and that therefore, the People have failed to file a sufficient accusatory instrument within speedy trial time.
Factual Allegations in the Superseding Informations:
xxx948:
Under this docket, the superseding information provides, in pertinent part, that on November 14, 2020, at 4:37 PM, the complainant, Melissa D. Derosa (Derosa) received a phone call from a blocked number on her personal cell phone, and that a male voice stated in sum and substance that he was Dan Rather.
The People charge the defendant with PL 240.30 (2) on this count.
Derosa received a second call on November 14, 2020, at 4:39 PM from a blocked number on her personal cell phone, but that she did not pick up her phone.
The People charge the defendant with PL 240.30 (2) on this count.
Derosa received a third call on November 14, 2020, at 4:45 PM from a blocked number on her personal cell phone, and that when she answered the phone, the caller repeatedly stated Derosa's first name.
The People charge the defendant with PL 240.30 on this count.
Derosa received a fourth call on November 14, 2020, at 4:50 PM from a blocked number to her personal cell phone, and that the caller stated in sum and substance, "You cunt; I am gonna slice your pussy, you murderer".
The People charge the defendant with PL 240.30 (1) (a), 240.30 (1) (b), and 240.30 (2) on this count.
xxx423:
Under this docket, the superseding information provides, in pertinent part, that on November 14, 2020, at 9:05 AM, the complainant, Lisa Raske (Raske) received a phone call from a blocked number on her personal cell phone, and that the caller stated in sum and substance "I know that this is a Raske number. That cocksucker is going to die".
The People charge the defendant with PL 240.30 (1) (a), 240.30 (1) (b), and 240.30 (2) on this count.
Raske received a second call on November 14, 2020, at 4:47 PM from a blocked number on her personal cell phone, and she alleges that she immediately hung up.
The People charge the defendant with PL 240.30 (2) on this count.
Raske received a third call on November 14, 2020, at 4:47 PM from a blocked number on her personal cell phone, and that the caller stated, in sum and substance "I'm looking for Ken Raske. Kenneth Raske. Who's this? Matthew? I don't have the wrong number. I'm going to call back all the time".
The People charge the defendant with PL 240.30 (2) on this count.
A supporting deposition from Investigator Thomas Karasinski has been filed with the court on both dockets.
Relevant Statutes:
PL 240.30 (1) (a), (b), and (2) provide in pertinent part that:
240.30:
"A person is guilty of aggravated harassment in the second degree when:
1. With intent to harass another person, the actor either
(a) communicates, anonymously or otherwise, by telephone ... a threatto cause physical harm to ... such person, or a member of such person's same family ... 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 ... to the physical safety ... of a member of such person's same family ...; or
(b) causes (such) communication to be initiated ...
2. With intent to harass or threaten another person, he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication."
Parties’ Arguments:
Defendant argues that the accusatory instruments herein do not satisfactorily make out that the telephone calls had no purpose of legitimate communication, an essential element of PL 240.30 (2). Citing, inter alia , People v. Singh , 1 Misc 3d 73 (App. Term 2nd Dept. 2003), defendant maintains that the accusatory instruments are, therefore, fatally insufficient, rendering the statement of readiness illusory, and therefore, insufficient to stop the running of the speedy trial clock.
In the Reply , defendant again argues that PL 240.30 (2) has not been made out as the People have not alleged that the calls had no legitimate purpose.
The Court notes that the Defendant's Reply is unsigned (under both dockets). Further, the Reply (again under both dockets) refers to a charge, PL 240.26, not charged under either docket. As the Affirmation does not contain any statements that must be sworn to, and in essence, is a Memorandum of Law, it was read and considered by the Court.
Defendant argues further that PL 240.30 (1) (a) and (b) have also not been sufficiently alleged and elaborates that the "threats allegedly made, do not contain the specificity, unambiguity, or immediacy necessary" (Defendant's Reply, xxx 948 at II. b.; xxx423 at II. b.) In sum, defendant asserts that the threats under both dockets do not rise to the level of a true threat of immediate harm.
The People concede that they are charged with 65 days in docket xxx948, and with 61 days in docket xxx423. As the highest count in each of these dockets is an A misdemeanor where the penalty is one year, the People have 90 days within which to be ready for trial ( Criminal Procedure Law [CPL] 30.30 [1] [b] ). As such, they assert that they have not exceeded their speedy trial period.
The People, relying on People v. Lewis , 52 Misc 3d 134(A) (App. Term 2nd Dept. 2016), lv denied , 28 NY3d 1029 [2016] aver that by alleging the details of the defendant's statements made to the complainants, as well as the circumstances surrounding the calls, the superseding informations established, prima facie , the "no purpose of legitimate communication" element of Aggravated Harassment in the Second Degree pursuant to PL 240.30 (2).
While the People point out that defendant's motion does not challenge the sufficiency of PL 240.30 (1) (a), or (b), they nonetheless argue that in each accusatory instrument, the defendant communicated to the complainant a threat likely to cause annoyance or alarm.
The court notes with dismay that the People quote language of PL 240.30 (1) (a) and (b) that has since been revised. The language they cite, namely that "Penal Law defines Aggravated Harassment in the Second Degree (240.30 [1] [a]; 240.30 [1] [b]) when, with intent to harass, annoy, threaten or alarm another person, he or she: 1 .... (a) communicates with a person ... in a manner likely to cause annoyance or alarm" (see , People's Response, B) has been found "unconstitutionally vague and overbroad" in People v. Golb , 23 NY3d 455, 466-467 (2014).
Court's Reasoning:
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the offenses charged ( CPL 100.15 [3] ; 100.40 [1] [b]; and 70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense ( CPL 100.40 [1] [c] ). An information which fails to satisfy these requirements is jurisdictionally defective ( CPL 170.30 and 170.35 ; People v. Alejandro , 70 NY2d 133, 136-37 [1987] ; People v. Dumas, 68 NY2d 729, 730 [1986] ).
Further, it has been often quoted that ‘[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 factual allegations should be "given a fair and not overly technical reading" ( People v. Casey , 95 NY2d 354, 360 [2000] ).
"The prima facie requirement [applicable to an information] is not the same as the burden of proof beyond a reasonable doubt required at trial" ( People v. Henderson , 92 NY2d 677, 680 [1999] ).
The Court is mindful that in deciding these motions, the Court must limit its review to the allegations contained in the accusatory instrument including the depositions filed in support ( People v. Limage , 19 Misc 3d 395 [Crim. Ct., Kings County 2008] ).
Regarding a defendant's intent to harass or annoy, the Court notes that it is well settled that a defendant's intent may be inferred from the act itself, taking into account the defendant's pattern of conduct and the circumstances surrounding the complained of behavior ( People v. Thomson , 28 Misc 3d 483 [Crim. Ct., Kings County 2010] ; People v. Turner , 141 AD2d 878 [2nd Dept. 1988], lv denied , 72 NY2d 962 [1988] ).
xxx948:
PL 240.30 (1) (a) and (b):
Under this docket, the defendant called the complainant four (4) times over the course of approximately 15 minutes. The calls to this complainant appear to have increased in the level of threat they presented; from the first call where the caller stated he was a famous journalist, Dan Rather; to the third where he repeated the complainant's name several times; to the last where he called the complainant a "cunt" and a "murderer" and stated "I'm gonna slice your pussy".
As PL 240.30 (1) (a) and (b) criminalize speech alone, a defendant's communication may invoke free speech protection unless the speech presents a clear threat of danger of some immediacy ( People v. Golb , 23 NY3d 455 [2014], rearg. denied , 24 NY3d 932 [2014], cert. denied , 574 U.S. 1079 [2015] ; People v. Dietze , 75 NY2d 47, 51 [1989] ; People v. Powell , 53 Misc 3d 1213[A], [Crim. Ct., Bronx County 2016] ).
Even a single call may violate this statute where the content presents such clear and immediate threat ( People v. Shack , 86 NY2d 529, 541 [1995] ; People v. Williams , 45 Misc 3d 1202[A], [Crim. Ct., New York County 2014] ; People v. Olivio , 6 Misc 3d 1034[A], [Crim. Ct. New York County 2005] ).
The facts herein allege that the defendant threatened to assault the complainant in a violent manner, and he provided a reason he would carry out that threat, calling complainant a "murderer". This threat came only minutes after the prior call where defendant repeated complainant's name several times, and several minutes after two prior calls. In this context, the final call presented as more fraught with immediate danger.
The Court, therefore, finds PL 240.30 (1) (a) is made out in xxx948.
PL 240.30 (2):
The elements in 240.30 (2) are both easier as well as more challenging to make out. Under PL 240.30 (2), the actor, with intent to harass or threaten, merely must make a telephone call with no purpose of legitimate communication. The manner in which the latter element must be made out has been the subject of much legal debate.
Defendant argues that the factual allegations do not recite and sufficiently show that the caller had no legitimate purpose.
Bearing in mind the constitutional bar to limitations on free speech, a bulwark of our free nation, the Court must, nonetheless, balance the actor's right to free speech with a victim's right to feel secure and to be free of violent verbal assaults that would make an average listener feel fear and feel threatened by violence (People v. Shack , supra).
This Court is not alone in its finding that even absent a specific recitation in the factual portion of the accusatory instrument, that the allegations taken as a whole, together with the context such as the number of calls, the frequency, the increasing nature of the threats, can make out the element of showing that the caller had no legitimate purpose of communication (People v. Shack, supra , finding PL 240.30 (2) constitutional and not overbroad: "we are satisfied that the phrase [‘no purpose of legitimate communication’], notwithstanding its subjective quality, would be understood to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances" at 538; People v. Mitchell , 24 Misc 3d 1249[A], Sup. Ct., Bronx County 2009]; People v. Bamba , 15 Misc 3d 1122[A], Crim. Ct., New York County 2007]; People v. Williams , 45 Misc 3d 1202[A], [Crim. Ct, New York County 2014], finding it "absurd ... that a person might make a telephone call that was intended to harass, annoy, threaten or alarm, but that at the same time had a legitimate purpose" at *3; People v. Winsbarrow , 48 Misc 3d 1231[A], Crim. Ct., New York County 2015]; "by alleging the details of these messages, the second superseding information established, prima facie , the ‘no purpose of legitimate communication’ element of aggravated harassment in the second degree" People v. Lewis , 52 Misc 3d at *2).
The allegations herein, together with the context — four (4) telephone calls in 15 minutes, and the threat and increasing threatening nature of the calls make out the sufficiency of this charge.
xxx243:
The allegations in this docket, in contrast with the factual allegations in the prior docket, do not make out the elements of either 240.30 (1) (a) and (b) or 240.30 (2).
While the language of the first telephone call is undeniably violent: "that cocksucker is going to die", it was not a specific threat of violence but a statement of a future inevitability, directed not to the complainant, but to her father-in-law. That telephone call was followed by a call of a much less violent nature, where the caller asked for "Ken Raske", and then stated that the caller would "call back all the time".
The Court finds that the same line of cases cited above, mandate a finding that the allegations asserted here do not constitute an immediate threat. It could further be argued that these telephone calls had some nature of a legitimate purpose where the caller was seeking to speak to "Ken Raske" and to track him down.
Based on the foregoing, the superseding information served and filed on this docket is insufficient, and the Certificate of Compliance served and filed on January 21, 2021, is illusory.
The People concede 61 days as of January 21, 2021.
The defendant served and filed the instant motion on September 29, 2021, which motion stopped the speedy trial clock ( CPL 30.30 [4] [a] ; People v Bruno , 300 AD2d 93 (1st Dept. 2002), lv denied , 100 NY2d 641 [2003] ).
As the People have not served a facially sufficient accusatory instrument within the statutory 90 days, this docket is dismissed.
Conclusion :
Defendant's motion to dismiss Docket CR-022948-20KN is denied.
The charges herein are facially sufficient, and the People's Certificate of Compliance is not illusory.
The People are charged with only 65 days of speedy trial time.
Defendant's motion to dismiss Docket CR-023423-20KN is granted .
The People have failed to serve and file a facially sufficient accusatory instrument within the statutory speedy trial time.
This constitutes the decision and order of this court.