Opinion
No. 2015NY021032.
09-17-2015
The PEOPLE of the State of New York v. Kenneth WINSBARROW, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney by A.D.A. Hannah Yu, for the People. The Legal Aid Society by Misa H. Le, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney by A.D.A. Hannah Yu, for the People.
The Legal Aid Society by Misa H. Le, Esq., for the Defendant.
STEVEN M. STATSINGER, J.
Defendant, charged with two counts of aggravated harassment in the second degree, Penal Law § 240.30(1)(a) and 240.30(2), and one count of stalking in the fourth degree, Penal Law § 140.25(1), moves to dismiss. He argues that:(1) his communications were not "true threats"; (2) the information fails to sufficiently allege that the communications had "no legitimate purpose," and (3); the allegation that the defendant's conduct caused the complainant to fear for her safety and that of her child is "conclusory," and hence insufficient. Alternatively, defendant argues that the statutes under which he is charged are unconstitutional "as applied," and violate the First Amendment to the United States Constitution and Article 1, § 8, of the New York State Constitution. For the reasons that follow, the motion to dismiss is DENIED.
Defendant also moves to suppress certain post-arrest statements. As to that, the Court GRANTS a Huntley/Dunaway hearing.
I. FACTUAL BACKGROUND
A. The Allegations
Defendant and the complainant have a three-year-old daughter in common. By November 13, 2014, the complainant had told the defendant to stop contacting her. Nevertheless, according to the information, on November 13, 2014, defendant sent the complainant a text message that read: "I'll bring you down soon watch."
On February 28, 2015, while the daughter was with the defendant on a scheduled visit, defendant sent the complainant the following four text messages: "You don't have to stil [sic] be cunt you could be nice"; "I'm being nice by saying hi, miserable bitch, keep this up and I'll call ACS again on you, don't fuck up with me, I'm trying to stay in control and be cool"; "Great mom you are fucking bitch"; and "I hope you die mother fucker."
A few hours later, defendant telephoned the complainant and said, "I wish you would die in pain. I'm going to bring you down. I wish you would be pushed in front of a train."
The next morning, defendant sent the complainant the following text message: "I'll be sure to be at your side when you die of cancer you soulless monster, no honor, you fucked up but I'll be sure ACS do waht [sic] they do. I can't wait until you die, I curse you, take my kid away, I'll show you, I'll rain on you."
These communications caused the complainant to fear for her own safety and that of the child.
B. Legal Proceedings
Defendant was arraigned on April 4, 2015, on a misdemeanor complainant charging him with one count of aggravated harassment in the second degree, in violation of Penal Law § 240.30(1)(a). The court released the defendant and adjourned the case for conversion.
On April 29, 2015, the People filed a superseding information charging the defendant with violating Penal Law § 240.30(1)(a) and Penal Law § 240.30(2). After the Court arraigned the defendant, it granted the People's motion to add one count of stalking in the fourth degree, under Penal Law § 120.45(1).
Defendant filed the instant motion on June 5, 2015, and the People responded on July 22. The matter has been sub judice since then.
II. THE INFORMATION
The information, sworn to by the complainant, provides that:
On or about November 13, 2014, at approximately 2:00pm, inside of [my residence, located in New York County] I received a text message from the defendant, stating in substance, "I'll bring you down soon watch."
On or about February 28, 2015, at approximately 10:00am, inside of [my residence] I received text messages from the defendant that stated in substance: "You don't have to stil [sic] be cunt you could be nice," "I'm being nice by saying hi, miserable bitch, keep this up and I'll call ACS again on you, don't fuck up with me, I'm trying to stay in control and be cool," "Great mom you are fucking bitch," "I hope you die mother fucker." These messages were sent to me while the defendant was with my 3 year-old daughter for a scheduled visit.
On or about February 28, 2015, at approximately 2:00 p.m., inside of [my residence] the defendant called me on [my] cellular phone and stated, in substance, "I wish you would die in pain. I'm going to bring you down. I wish you would be pushed in front of a train."
On or about March 1, 2015, at approximately 9:18pm, inside of [my residence] I received text message from the defendant that stated in substance: "I'll be sure to be at your side when you die of cancer you soulless monster, no honor, you fucked up but I'll be sure ACS do what [sic] they do. I can't wait until you die, I curse you, take my kid away, I'll show you, I'll rain on you."
All of the above communications were made to be after I told the defendant to stop contacting me. The defendant's conduct made me fear for my physical safety and the safety of my 3 year-old daughter.
III. DISCUSSION
A. The Information is Facially Sufficient
Defendant raises a variety of issues in his challenge to the facial sufficiency of the information. The Court has carefully considered, and rejected, each of them. The issues are discussed below, in the order raised.
1. Facial Sufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." Kalin, 12 NY3d at 228–29, 906 N.E.2d at 383, 878 N.Y .S.2d at 655 (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N .Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as "the prima facie case requirement." Kalin, 12N.Y .3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N .Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading,"id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.
Under these standards, the information is facially sufficient.
2. At Least One Communication Contains a "True Threat "
Defendant first argues that the count charging him with violating § 240.30(1)(a) should be dismissed because his statements were "too vague" to constitute "true threats" of physical harm. Le Mem. of Law at 9–20. The People respond that this is a "gross understatement" of defendant's words. Yu Aff. at ¶ 5. While the Court cannot agree with the People's characterization—the case is much closer than that—it nevertheless finds that two of defendant's communications to the complainant constitute a "true threat." In reaching this conclusion, the Court concludes that a threat that is implicit, not explicit, can still be a "true threat," as long as is contains a sufficiently clear threat of physical harm.
a. Communications to Complainant that Are Not Threats at All.
A "threat is a communicated intent to inflict harm or loss on another or on another's property." People v. Orr, 47 Misc.3d 1213(A) (Crim Ct N.Y. County 2015). The Court first notes that several of the communications described in the information are not threats at all, just abusive and insulting rants. Specifically, the following communications are not threats:
"You don't have to stil [sic] be cunt you could be nice."
"I'm being nice by saying hi, miserable bitch, keep this up and I'll call ACS again on you, don't fuck up with me, I'm trying to stay in control and be cool."
"Great mom you are fucking bitch," and
"I hope you die mother fucker."
As in Orr, these communications, although "unwanted," insulting and degrading to the recipient, are not threats at all, let alone "true" ones. 47 Misc.3d at 1213(A) ("The phrases go kill yourself bitch' and you're not worth the air to take the jump bitch' are ... not threats, in that they do not warn the recipient of any sort of future harm.")
b. One Communication is a Threat, but Not a "True Threat "
The remainder of the communications are indeed threats, but the question remains whether they are "true threats." A "threat is a true threat when an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of" violence. Orr, 47 Misc.3d at 1213(A), citations and internal quotation marks omitted. "True threats" encompass "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 group of individuals." Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 1548 (2003).
In Orr, this Court extensively surveyed the landscape of "true threat" cases in New York. The Court determined that New York courts have consistently found that there is no "true threat" in those cases where the communication either did not contain a threat of future violence at all or the seeming threat was not sufficiently specific, and have consistently found that there is a "true threat" in cases where the communication conveyed a clear and unambiguous message that the recipient could not help but understand as a threat of future violence. Orr, 47 Misc.3d at 1213(A).
Here, there is one communication alleged in the information that is a threat, in that it warns of future harm, but that lacks the specificity to constitute a "true threat." That communication is: "I'll bring you down soon watch." "I'll bring you down" is analogous to phrases like "I'll get you," or "watch your back," which have consistently been found to be insufficiently specific to be a "true threat." See, e.g., People v. Yablov, 183 Misc.2d 880, 706 N.Y.S.2d 591 (Crim Ct N.Y. County 2000) ("I'll get you"); People v. Behlin, 21 Misc.3d 338, 863 N.Y.S.2d 362 (Crim Ct Kings County 2008) (same); People v. Khaimov, 26 Misc.3d 1202(A), 906 N.Y.S.2d 782 (Crim Ct N.Y. County 2009) (holding that "[w]atch your step or something is going to happen to you" is insufficiently specific, and noting that "watch your back" has also been found insufficiently specific).
c. Two Statements Are "True Threats," Even Though the Threat is Implicit
Finally, the Court concludes that the well-trod requirement that a must threat be specific to be "true" does not require that the threat also be completely explicit. Although the situation does not seem to arise very often, an implicit threat can still be a "true threat" as long as the threat of violence that it contains is otherwise sufficiently clear. In fact, it is not at all difficult to construct a threat that is very specific, clearly detailing the proposed method or type of violence, even while it is not entirely explicit, in that the words used to convey the threat are, to some degree, indirect. This case illustrates that proposition. Two of defendant's statements to the complainant contain a sufficiently specific communication of the defendant's intention to harm her, even though the threat is not explicitly worded.
The first is this: "I wish you would die in pain. I'm going to bring you down. I wish you would be pushed in front of a train." The explicit version of this threat would be "I am going to push you in front of a train." This is highly specific—the threatened act of violence is unambiguously expressed—and would clearly qualify as a "true threat." Here, in their totality, the words that the defendant used, construed in the light most favorable to the People, People v. Thomas, 47 Misc.3d 473, 998 N.Y.S.2d 612 (Ithaca City Ct 2014), contain a sufficiently specific communication of that same intention. Even though defendant does not explicitly threaten to push the complainant in front of a train, his stated desire that this occur, coupled with his stated desire that the complainant "die in pain" and with his general (and by itself insufficient) threat to "bring [her] down," together represent a clear, albeit implicit, threat that the defendant is going to push the complainant in front of a train. Accordingly, read in its entirety, this statement represents a "true threat" of violence to the complainant.
The second implicit "true threat" is this: "I'll be sure to be at your side when you die of cancer you soulless monster, no honor, you fucked up but I'll be sure ACS do waht [sic] they do. I can't wait until you die, I curse you, take my kid away, I'll show you, I'll rain on you. " The explicit version of the underscored portion of this statement would be "If you take my kid away I will kill you," again, obviously a sufficiently specific "true threat." As actually expressed here, however, the communication is analytically similar to the other communication discussed above. Phrases like "I'll show you" or "I'll rain on you" are, by themselves, insufficient. But when coupled with defendant's stated eagerness to see the complainant "die," and his warning that there will be adverse consequences to her if she attempts to take their child away, in totality, constitute a specific, albeit implicit, threat that he will kill her if she takes their child away.
Accordingly, while the case is close, the Court nevertheless concludes that, among the communications that the defendant sent to the complainant, the two communications discussed in this section are both "true threats."
3. The Information Sufficiently Alleges the "No Legitimate Purpose" Element
Defendant next argues that the "no legitimate purpose" element, which is common to both Penal Law § 240.30(2) and Penal Law § 120.45(1), is insufficiently pled. The Court again disagrees.
a. Section 240.30(2)
With respect the § 240.30(2) count, defendant correctly observes that this section covers telephone calls only and not text messages. Le Mem. of Law at 20. He argues that the "no legitimate purpose" element is not made out because the information alleges only a single telephone call and, "without any context," Le Mem. of Law at 21, the allegation of a single threatening telephone call does not make out a prima facie case of this element. Id. The People respond that the content of the telephone call itself establishes the absence of a legitimate purpose, and point out that defendant himself characterized his conduct as illegitimate: "crude outbursts and unfortunate name calling." Yu Aff. at ¶ 9, quoting Le Mem. of Law at 17. The Court agrees with the People.
Section 240.30(2) criminalizes those telephonic communications, whether a conversation took place or not, that lack any "expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." People v. Shack, 86 N.Y.2d 529, 538, 658 N.E.2d 706, 712, 634 N.Y.S.2d 660, 666 (1995). Or, as the court put it in People v. Stuart, 100 N.Y.2d 412, 428, 797 N.E.2d 28, 41, 765 N.Y.S.2d 1, 14 (2003), "no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten."
Determining whether an information charging a violation of § 240.30(2) sufficiently pleads the "no legitimate purpose" element requires an examination of the context, timing and number of telephone calls, their content, if any, and whether those calls continued after a demand that they cease. See People v. Mitchell, 24 Misc.3d 1249(A), 899 N.Y.S.2d 62 (Crim Ct Bronx County 2009) (information facially sufficient; defendant called complainant 45 times in a single day, and left 10 threatening messages); People v. Bamba, 15 Misc.3d 1122(A), 841 N.Y.S.2d 220 (Crim Ct New York County) (2007) (three calls to complainant made early in the morning and late at night on same day that complainant told him not to call made out prima facie case that calls lacked legitimate purpose); People v. Coyle, 186 Misc.2d 772, 719 N.Y.S .2d 818 (Dist Ct Nassau County 2000) (repetition and tone of calls, and fact that they continued after complainant told defendant to stop, sufficiently pleads the "no legitimate purpose" element). Cf. People v. Thompson, 28 Misc.3d 483, 905 N.Y.S.2d 449 (Crim Ct Kings County 2010) (information that simply alleged that defendant repeatedly called complainant during a range of dates was insufficient; no allegation as to the number of calls, their frequency or timing, or that complainant told defendant to stop).
Even a single call can make out a prima facie case, People v. Coyle, 186 Misc.2d 772, 719 N.Y.S.2d 818 (Dist Ct Nassau County 2000), as long as there is a sufficient showing of the requisite intent. Cf. People v. Goris, 39 Misc.3d 1217(A), 975 N.Y.S.2d 368 (Crim Ct Kings County 2013) (information alleging that defendant and the complainant had a dispute during a single telephone conversation, without more, was insufficient); People v. Cruz, 44 Misc.3d 640989 N.Y.S.2d 279 (Crim Ct Queens County 2014) (information alleging single threatening call was insufficient; instrument contained no context or timing of the conversation and did not allege that complainant had told defendant not to call).
In the telephone call here, defendant after the defendant called the complainant a "soulless monster," and told her he hoped she died of cancer, he said, "I wish you would die in pain. I'm going to bring you down. I wish you would be pushed in front of a train." Contrary to defendant's assertion, the information alleges sufficient contextual facts to make out a prima facie case of the "no legitimate purpose" element. First, the call came just hours after defendant had sent the complainant four vile, insulting and degrading text messages, and one day before the defendant sent her a fifth. Examined in the context of defendant's pattern of harassing communications, the telephone call clearly had no purpose other than to continue the harassment.
In addition, all of defendant's communications with the complainant, including the telephone call, occurred after the complainant had told the defendant to stop communicating with her. Defendant's defiance of this request further establishes that the communications lacked a legitimate purpose. Accordingly, the Court rejects defendant's argument that the information should have included more detail about anything else defendant might have said during the call.
The information makes out a prima facie case that defendant placed a call to the complainant with no legitimate purpose. The purpose of the call was to harass, degrade and frighten the complainant, a purpose that is unequivocally illegitimate. The information is therefore facially sufficient as to the § 240.30(2) count.
b. Section 120.45(1)
As to the count charging a violation of § 120.45(1), defendant argues that the "no legitimate purpose" element is not made out because the information "fails to explicitly allege that Mr. Winsbarrow[ s] conduct had no legitimate purpose." ' Le Mem. of Law at 27. In support of this argument, defendant cites People v. Singh, 1 Misc.3d 73, 770 N.Y.S.2d 560 (App Term 2d Dept 2003) and People v. Welte, 31 Misc.3d 867, 920 N.Y.S.2d 627 (Just Ct, Town of Webster, 2011).
This Court has previously rejected the reasoning of Singh and its progeny, including Welte, see People v. Williams, 45 Misc.3d 1202(A)3 N.Y.S.3d 286 (Crim Ct N.Y. County 2014) ; People v. Kitsikopoulos, 47 Misc.3d 1220(A) (Crim Ct N.Y. County 2015), and adheres to those rulings here. As the Court put it in Williams, as long as the information "pleads facts that support a finding that the defendant made a telephone call that was intended to harass, annoy, threaten or frighten the recipient, those same facts also support a finding that the call had no legitimate purpose." ' 45 Misc.3d at 1202(A), 3 N.Y.S.3d at 286.
4. The Information Sufficiently Alleges that Defendant Knew or Should have Known that his Conduct Would Cause the Complainant to Fear for Her Safety and That of Her Child.
Defendant argues that the information does not make out a prima facie case of the knowledge element of Penal Law § 240.30(1)(a) and § 120.45(1). Both of these sections require that the defendant either have actual or constructive knowledge that his conduct will cause the complainant to fear for her own safety or that of someone in her family. Defendant argues that, because all of defendant's conduct occurred remotely, via telephone or text message, with no physical proximity or contact, the complainant could not have experienced the level of fear that the statute requires. Le Mem. of Law at 24–25. The People counter that the statute does not require that the complainant actually experience fear, only that the defendant had either actual or constructive knowledge that his conduct would cause it. Yu. Aff. at ¶ 12. The People's characterization of the statute is correct.
This Court recently examined this element in a case involving Penal Law § 120.45(1), one of the statutes at issue here. In People v. Selinger, 48 Misc.3d 1218(A) (Crim Ct N.Y. County 2015), the Court held that "[o]bnoxious but non-threatening behavior [does] not, by itself," ordinarily suggest that the defendant had the requisite knowledge. In such cases, to sufficiently plead this knowledge element, the information should describe "either an actual or implied threat of danger, or [allege] background facts that would make the obnoxious behavior itself constitute an implicit threat." Id., citing People v. Lewis, 29 Misc.3d 978909 N.Y.S.2d 321 (Crim Ct N.Y. Count 2010).
Here, both of these alternatives are satisfied. As explained above, defendant's communications with the complainant contained at least one "actual or implied threat of danger," in that two of his communications contained "true threats." In addition, the information contains "background facts" that further suggest that defendant actually understood, or ought to have understood, that his communications would frighten the complainant. Specifically, it alleges that all of the communications occurred after the complainant had told the defendant to stop contacting her. There is a reasonable inference that the complaint made this request because defendant's communications up to that time had frightened her. To be sure, that is not the only inference that might be drawn from this fact, but it is nevertheless a reasonable one. See also People v. Kelly, 44 Misc.3d 1203(A)997 N.Y.S.2d 100 (Crim Ct N.Y. Count 2014) (although conduct was not threatening, knowledge element satisfied where defendant knew that complainant had previously been concerned enough about defendant's behavior to obtain an order of protection).
Finally, the Court notes that, while actual fear of harm is not an element of any of the charged offenses, defendant's argument that the allegation that the complainant in fact experienced such fear is improperly "conclusory" is incorrect. A conclusory allegation is one that derives "solely from another fact or facts that have not been alleged." People v. Diaz, 48 Misc.3d 1208(A) (Crim Ct N.Y. Count 2015). Accordingly, where the fact at issue is a person's description of her own subjective experience, it will not be conclusory—even if that description merely tracks the statutory language—as long as the experience itself is also described in the information. People v. Morris, 44 Misc.3d 810991 N.Y.S.2d 288 (Crim Ct N.Y. County 2014) (where information describes an act of violence, "there is a reasonable inference' that if a person reports having experienced substantial pain,' she did, in fact, experience substantial pain.")
Here, the information describes obnoxious and threatening communications from the defendant, and the complainant alleges that these communications caused her to fear for her safety and that of her daughter. This is not a "conclusory allegation."
B. The Statutes Under Which Defendant is Charged Are Not Unconstitutional "As Applied. "
Defendant argues, in the alternative, that the information should be dismissed because his conduct constitutes "protected speech," and thus that the three statutes under which he is charged are unconstitutional "as applied." Le Mem. of Law at 5–6. The Court disagrees.
The Court first notes that both § 240.30(2) and § 120.45(1) criminalize conduct, not speech, so that defendant's "as applied" challenge does not reach the counts charging those sections.
Section 240.30(2) makes it a crime to place a telephone call, and it is that specific conduct, not the content of the call itself, that the statute is intended to address. See People v. Dixon, 44 Misc.3d 1216(A)997 N.Y.S.2d 100 (Crim Ct N.Y. County 2014). And, as this Court has noted, "[e]xamining the content, if any, of the telephone call in order to determine the defendant's intent at the time he placed the call has no First Amendment implications, as it does not punish the defendant for pure speech. It is no different than examining the content of a robbery note to determine whether the taking of property was forcible." People v. Williams, 45 Misc.3d 1202(A)3 N.Y.S.3d 286 (Crim Ct. N.Y. County 2014).
Section 120.45(1) also criminalizes conduct—for this section, a course of conduct—and not speech, and accordingly the same analysis applies.
Section 240.30(1)(a), however, does criminalize pure speech. Nevertheless, since the Court has already concluded there is at least one "true threat" among the communications described in the information, the Court rejects defendant's "as applied" challenge to that count. See, e.g., People v. Prisinzano, 170 Misc.2d 525, 648 N.Y.S.2d 267 (Crim Ct N.Y. County 1996) ; cf. People v. Pierre–Louis, 34 Misc.3d 703, 927 N.Y.S.2d 592 (Dist Ct Nassau County 2011) (§ 240.30(1)(a) was unconstitutional as applied, since defendant's words did not make out a "true threat").
C. Conclusion
Defendant's motion to dismiss is denied in its entirety.
V. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss denied; a Huntley/Dunaway hearing is ordered.
This constitutes the Decision and Order of the Court.