People v Buchy
Annotate this CaseDecided on August 5, 2009
Just Ct of Vil of Tuckahoe, Westchester County
The People of the State of New York, Plaintiff,
against
David Buchy, Defendant.
xxxx
Darcy Rydlun, Assistant District Attorney, for plaintiff.
Jeffrey P. Chartier, Esq. for defendant
David Otis Fuller, J.
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
[*2]
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.
[*3]
For the foregoing reasons, the defendant's motion to
dismiss the information
is granted.
_________________________
DAVID OTIS FULLER, JR.
VILLAGE JUSTICE
Dated: August 5, 2009
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