Opinion
No. 2015BX037431.
10-07-2016
The PEOPLE of the State of New York, v. Llewelyn POWELL, Defendant.
Earl Williams, Esq., Attorney for Defendant. Darcel D. Clark, District Attorney, Bronx County by Marron C. Doherty, Assistant District Attorney, for the People.
Earl Williams, Esq., Attorney for Defendant.
Darcel D. Clark, District Attorney, Bronx County by Marron C. Doherty, Assistant District Attorney, for the People.
MARY V. ROSADO, J.
Defendant is charged with two counts of Aggravated Harassment in the Second Degree (Penal Law §§ 240.30[1][b] and [2 ] ). By Notice of Motion and Memorandum of Law, the defendant moves for: (1) Dismissal of the Charges for Facial Insufficiency, (2) an Order Precluding the District Attorney from Amending and Refiling the Case in the Interest of Justice, and (3) Dismissal of the Charges in the Interest of Justice. By Affidavit in Opposition, the People oppose dismissal, arguing that the accusatory instrument is facially sufficient. The People further argue that the defendant has failed to demonstrate a compelling factor, consideration or circumstance to support dismissal in the interest of justice. The defendant filed a rebuttal to the People's Affidavit in Opposition. In rendering a decision, this Court reviewed Defendant's Notice of Motion and Memorandum of Law filed May 23, 2016, the People's Affidavit in Opposition dated June 19, 2016, the Defendant's Rebuttal to the People's Opposition filed July 25, 2016, the court file, relevant statutes and case law.
Defendant's Notice of Motion and Memorandum of Law filed May 23, 2016 was not signed by defense counsel. Pursuant to Court Order dated July 18, 2016, Defense counsel refiled his Notice of Motion and Memorandum of law signed as required on July 25, 2016.
Factual Allegations
The information alleges, in pertinent part, that on or about February 10, 2015, at approximately 10:00 p.m., inside of 3007 Bronxwood Avenue, in Bronx County, the following occurred:
Deponent states that, at the above time and place, her residence, defendant called her numerous times on her cellular phone and stated in sum and substance WHY DON'T YOU GIVE ME A CHANCE, YOU KNOW I LIKE YOU, YOUR FRIEND TELLS YOU A LOT ABOUT ME, DO YOU THINK YOU ARE BETTER THAN ME. Deponent further states that she asked defendant to stop calling her and hung up [the] phone. Deponent further states that defendant called her cellular telephone again numerous times and stated in sum and substance 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 [T]O PASS AROUND WHERE I SEE YOU.
Deponent further states that she has known the defendant for approximately seven (7) months and has spoken to defendant in person on numerous occasions and further states that she recognized the voice over the phone to be that of the defendant.
Deponent further states that as a result of the defendant's aforementioned actions she experienced annoyance, alarm and felt threatened.
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 N.Y.2d 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 N.Y.2d 354, 360 [2000] ).
Aggravated Harassment in the Second Degree under Penal Law § 240 .30(1)(b)
Penal Law § 240.30(1)(b) provides that:
With intent to harass another person the actor causes a communication to be initiated anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, 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)(b) 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 N.Y.2d 47, 51 [1989], citing Terminiello v. Chicago, 337 U.S. 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, 75 N.Y.2d 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] [Crim Ct, N.Y. 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] [Crim Ct, N.Y. County 2015] ; People v. Brodeur, 40 Misc.3d 1070, 1073 [Crim Ct, Kings County 2013] ).
Here, in assessing whether there is reasonable cause to believe that there are non-hearsay allegations that tend to support every element of the offense charged, this court finds that the information does not sufficiently allege that the defendant communicated a true threat of physical harm sufficient to support the charge of Aggravated Harassment in the Second Degree under Penal Law § 240.30(1)(b). The defendant's statement, in sum and substance, "don't let me get you" is not an unequivocal threat to physically harm another and does not possess the inevitability of harm required (see People v. Rodriguez, 49 Misc.3d 867, 871 [Crim Ct, Bronx County 2015], citing People v. Tackle, 46 Misc.3d 1218[A] [Crim Ct, Bronx County 2015] ["don't let me us my boxing on you"] ). Accordingly, the information is facially insufficient as to the count of Aggravated Harassment in the Second Degree under Penal Law § 240.30(1)(b). The factual allegations do not provide reasonable cause to believe that defendant committed the offense charged by establishing every required element. As such, defendant's motion to dismiss the charge of Aggravated Harassment in the Second Degree pursuant to Penal Law § 240.30(1)(b) is granted.
Defendant's reliance on People v. Golb, 23 NY3d 455 (2014) is misplaced because the defendant was charged under the amended statute, and not the former Penal Law § 240.30(1)(b), which was held unconstitutional for vagueness and being overly broad. Defendant is however correct that the People, in their Affidavit in Opposition, incorrectly reference the older statute.
Aggravated Harassment in the Second Degree under Penal Law § 240.30(2)
A person can also be found guilty of Aggravated Harassment in the Second Degree pursuant to Penal Law § 240.30(2) when, "[w]ith 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." " ‘[N]o legitimate purpose’ means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten" (People v. Stuart, 100 N.Y.2d 412, 428 [2003] ; see also People v. Spruill, 49 Misc.3d 1202[A] [Crim Ct, N.Y. County 2015] ).
"Determining whether an information charging a violation of 240.30(2) sufficiently pleads the ‘no legitimate purpose’ element requires an examination of the timing and number of telephone calls, their context, if any, and whether those calls continued after a demand that they cease" (Spruill, supra at 11 ). The instant accusatory instrument alleges that the defendant made numerous calls to the complainant during which he insulted and threatened her, after the complainant requested that the defendant stop calling.
The information is facially sufficient as to the count of Aggravated Harassment in the Second Degree pursuant to PL 240.30(2). The factual allegations provide reasonable cause to believe that defendant made these communications with intent to either harass or threaten the complainant, and with no legitimate purpose. Accordingly, defendant's motion to dismiss the charge of Aggravated Harassment in the Second Degree pursuant to Penal Law § 240.30(2) is denied.
Dismissal and Preclusion in the Interest of Justice
In seeking dismissal of the information, and an order precluding the People from amending or otherwise refiling the complaint in this matter in furtherance of justice, the defendant, through counsel, cites cumulative errors of the District Attorney and the Police in investigating and otherwise handling this matter, the defendant's clean record and the defendant's cooperation with authorities in support of the motion.
However, the defendant's reliance on People v. Traber (35 Misc.3d 149[A][App Term, 2d, 11th & 13th Jud Dists 2012] ) is misplaced, given that People v. Traber involved a defendant who was charged with assault due to her actions while being arrested, whereas the defendant's arrest here, was based on the allegations from the complainant.
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Dismissal in the interest of justice is not intended to be a substitute for trial (see People v. Prunty, 101 Misc.2d 163, 167 [Crim Ct, Queens County 1979] ). CPL 170.40 permits the dismissal of an information in the interest of justice provided there is "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant ... would constitute or result in injustice" (CPL 170.40 ). In reviewing a motion to dismiss in the interest of justice, a court must examine and consider the following factors: the seriousness and circumstances of the offense; the extent of harm caused by the offense; the evidence of guilt, whether admissible or inadmissible at trial; the history, character and condition of the defendant; any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; the purpose and effect of imposing upon the defendant a sentence authorized for the offense; the impact of a dismissal on the safety or welfare of the community; the impact of a dismissal upon the confidence of the public in the criminal justice system; where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and another other relevant fact indicating that a judgment of conviction would serve no useful purpose (CPL 170.40[1] ; see also People v. Clayton, 41 A.D.2d 204, 206–208 [2d Dept 1973] ).
The Court's discretion, however, is not absolute and should be used "sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations" (People v. Harmon, 181 A.D.2d 34, 36 [1st Dept 1992] [citations and internal quotation marks omitted]; see also People v. Wingard, 33 N.Y.2d 192, 196 [1973] ).
After examination of the arguments submitted by the defendant and measuring them against the criteria set forth in CPL 170.40, this court concludes that the defendant has not demonstrated that a dismissal is warranted in the furtherance of justice. Further, because the defendant has failed to demonstrate that his case is so "rare and unusual" that it "cries out for fundamental justice beyond the confines of conventional considerations," his motion to dismiss in the interest of justice is denied.
The defendant further requests that this Court enter an order precluding the People from amending and refiling the accusatory instrument. However, the defendant called for the consideration of the factors listed in CPL 170.40, which permits the dismissal of an information in the interest of justice. As discussed above, defendant failed to demonstrate that a dismissal is warranted in the furtherance of justice. Further, CPL 100.45(3) specifically allows the amendment of the information when appropriate. As such, the defendant's motion to preclude the District Attorney from amending and refiling the case in the interest of justice is denied.
Preclusion of Further Motions under CPL 255.20(3)
The People's motion for the Court to summarily deny any further motions filed by the defendant absent a showing of good cause pursuant to CPL 255.20(3) is denied as premature.
This constitutes the Decision and Order of the Court.