People v Kitsikopoulos

[*1] People v Kitsikopoulos 2015 NY Slip Op 50714(U) Decided on May 13, 2015 Criminal Court Of The City Of New York, New York County Statsinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 13, 2015
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Harilaos Kitsikopoulos, Defendant.



2014NY037848



For the People: Cyrus R. Vance, Jr., New York County District Attorney, by ADA Mike GordonFor the Defendant: George Vomvolakis, Esq.
Steven M. Statsinger, J.

Defendant, charged with menacing in the second degree, in violation of Penal Law § 120.14(2), stalking in the third degree, in violation of Penal Law § 120.50(3), endangering the welfare of a child, in violation of Penal Law § 260.10(1), two counts of stalking in the fourth degree, in violation of Penal Law §§ 120.45(1) and 120.45(2), and harassment in the first degree, in violation of Penal Law § 240.25, moves to dismiss all counts as facially insufficient. In addition, defendant argues that the child endangerment count is time-barred by the applicable statute of limitations.

For the reasons that follow, defendant's facial insufficiency motion is GRANTED as to the count charging a violation of Penal Law § 120.45(2) but DENIED as to all other counts considered; the motion to dismiss the § 260.10(1) count as time-barred is likewise GRANTED.

Defendant argues that: (1) the menacing count, all three stalking counts and the harassment count are facially insufficient, claiming that the "course of conduct" element - which is common to all of those charges - is not made out because the communications at issue were few and spread over a long period; (2) the "no legitimate purpose" element of stalking in the fourth degree is not pled at all, and; (3) the requirement of Penal Law § 120.45(2) that the defendant have "initiated" contact is not made out because there is no allegation that defendant initiated either the telephone calls or the email conversations at issue. As detailed below, the Court rejects all of these arguments save one - the Court agrees with the defendant that the information does not sufficiently allege that the defendant "telephoned" the complainant or "initiated contact or communication" with her, as required by Penal Law § 120.45(2).

In addition, the Court agrees that the count charging Penal Law § 260.10(1) is time-barred. The motion to dismiss that count is granted. In light of this, the Court does not reach whether that count is facially insufficient.

I. FACTUAL BACKGROUND

A. The Allegations

According to the information, from December of 2010 to June of 2014, the defendant repeatedly threatened, by telephone and email, the life of his former girlfriend, the children that they had together, and her new boyfriend. During one such telephone call, in December of 2010, defendant threatened to kill both the complainant and their children with a shotgun. The children, one three years old and one twenty-two months old, were present with the defendant when defendant made that threat.

B. Legal Proceedings

Defendant was arraigned on May 16, 2014, on a misdemeanor complaint charging him with menacing in the second degree and various related offenses. The court released the defendant and adjourned the case for conversion.

Off-calendar, on June 20, 2014, the People filed a certificate of readiness and a superseding information that charged the defendant with menacing in the second degree, in violation of Penal Law § 120.14(2), stalking in the third degree, in violating of Penal Law § 120.50(3), endangering the welfare of a child, in violation of Penal Law § 260.10(1), two counts of stalking in the fourth degree, in violation of Penal Law §§ 120.45(1) and 120.45(2), and harassment in the first degree, in violation of Penal Law § 240.25.

Defendant filed the instant motion to dismiss on March 30, 2015. The matter has been sub judice since then.

II. THE INFORMATION

The superseding information, sworn out by the complainant on June 18, 2014, provides that:

Beginning in December 2010 and continuing until the present day, the defendant has threatened my life and safety many times by telephone and e-mail, causing me to fear for my safety.

For example, in December 2010, the defendant stated to me, over the phone, in reference to me and our children, "I am going to shoot all of you with a shotgun." My children — [one] born April 2, 2007, and [the other] born February 12, 2009 - were both with the defendant at the time. I could hear both of their voices in the background while I was on the phone with the defendant.

On December 28, 2012, the defendant stated to me in an email, "The slightest contact between the kids and your boyfriend, between now and the court date and it will get incredibly ugly. That's a promise."

On December 31, 2012, the defendant stated in an e-mail to me, "Don't bother to bring the kids tomorrow or any other day if the same issue like Christmas arises again. You will not be safe around me."

On January 28, 2013, the defendant wrote me an e-mail in which he stated "The next time you manipulate the kids and have them wake up me at 6 a.m. I will twist your neck like a pretzel."

On May 2, 2014, the defendant stated to me, over the phone, "Listen closely. [*2]The next time the kids come into contact with this guy, I am going to hurt you. If you are sleeping in the next room and they are there, I don't care if you have an order of protection, I am going to hurt you. Your face is going to be unrecognizable."

The "boyfriend" and "guy" referred to in the above emails is my [new] boyfriend ... .

I received all of the above communications from the defendant while I was at my home, which is located [in] ... New York, NY.

I asked the defendant to stop threatening me on multiple occasions since December 2010. These actions by the defendant have caused me to fear being hurt by him.

In a handwritten notation, the complainant added that "the threat in December 2010 occurred on December 11, 2010."

III. DISCUSSION

A. Facial Sufficiency

With respect to the menacing count, all three stalking counts and the first-degree harassment count, counsel makes the same primary argument. Each of the statutes at issue has, as an element, that the defendant engaged in a course of conduct. Defendant argues that conduct of which he is accused, which was "spread out over a five [sic] year period,[FN1] " Defense Counsel Aff. at ¶ 17, does not make out the "course of conduct" element. The Court, however disagrees.

Defendant makes additional arguments directed specifically at the stalking in the fourth degree counts. While the Court rejects defendant's argument as to the count charging a violation of § 120.45(1), it agrees that the count charging Penal Law § 120.45(2) is facially insufficient.

1. Facial Insufficiency 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, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014); People v Alejandro, 70 NY2d 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." People v. Kalin, 12 NY3d 225, 228-29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v Henderson, 92 NY2d 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, 12 N.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 the information allege [*3]facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 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 NY2d 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 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

2. The Information is Facially Sufficient as to the "Course of Conduct" Element

The defense is correct that the "course of conduct" element is common to menacing in the second degree (Penal Law § 120.14(2)), stalking in the third degree (Penal Law § 120.50(3)), stalking in the fourth degree (Penal Law §§ 120.45(1) and 120.45(2)), and harassment in the first degree (Penal Law § 240.25). But the facts alleged here make out a prima facie case as to this element.

A course of conduct is "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." People v. Kelly, 44 Misc 3d 1203(A), 997 N.Y.S.2d 100 (Crim Ct NY County 2014) (Statsinger, J.), citation and internal quotation marks omitted. Ordinarily defendants complain - generally without success - that the period of time during which the charged conduct occurred was too short to constitute a "course of conduct." E.g., People v. Nasca, 40 Misc 3d 142(A), 977 N.Y.S.2d 669 (App. Term 9th and 10th Dists. 2013) (events on a single day); People v. Sweeney, 27 Misc 3d 134(A), 910 N.Y.S.2d 765 App. Term 9th and 10th Dists. 2010) (two days). See also People v. Barboni, 1 NY3d 393, 994 N.E.2d 820, 971 N.Y.S.2d 729 (2013) (rejecting claim that a period of hours was not a course of conduct).

Defendant here, somewhat novelly, argues precisely the opposite: that the period of time was too long and the conduct too infrequent to constitute a course of conduct. He relies on People v. Venson, ___ Misc 3d ___, 2015 WL 753338 (App. Term 1st Dept. 2015), also a stalking case. There, the defendant gave the complainant, who was his neighbor, two gifts of common household items, which were not unwelcome. The first was one month after they met and the second was some three months after the first. Id. Eighteen months later, the defendant followed the defendant into her laundry room and asked her to remove her television from her window because it was keeping him awake, at which point the complainant told the defendant to leave her alone. Id. That same month, the complainant learned of the existence of nude pictures that the defendant had taken of her; defendant told the police that he was planning to show them to the complainant's co-op board as proof she was "enticing" him. Id. The Appellate Term dismissed, concluding that [*4]"the infrequent and temporally diffuse contact with the complainant that defendant allegedly initiated, spread out over a period spanning nearly two years, did not make out a course of conduct' as that term is used in the statute, viz., a series of acts evidencing a continuity of purpose.'" Id.

But Venson ultimately turned, not on the number of acts or the length of time over which they occurred, but on the lack of a common purpose among the acts alleged. The appellate court could see no clear connection between the defendant's "ambiguous" and "unexcepted to" gift-giving and his much later effort to let the complainant know that her television was making too much noise. Id. Similarly, defendant's taking nude pictures of the complainant at some unknown time and distributing them to a third party, "while reprehensible" bore no apparent relationship to the other acts and, by itself, did not constitute stalking. Id.

The instant case is clearly distinguishable. Unlike in Venson, all of the conduct alleged in the information demonstrates that the defendant zealously dedicated himself to a single purpose throughout the all of the communications alleged: he sought to terrorize the complainant by threatening her or her children and by interfering with her relationship with her new boyfriend. The consistency with which those threats, whether by telephone or email, sought to further this goal is truly remarkable. Indeed, in every one of the communications the defendant, whatever else he said, also threatened to harm the complainant:

— December 11, 2010: "I am going to shoot all of you with a shotgun"

— December 28, 2012: "it will get incredibly ugly. That's a promise"

— December 31, 2012: "You will not be safe around me."

— January 28, 2013: "I will twist your neck like a pretzel."

— May 2, 2014: "I don't care if you have an order of protection, I am going to hurt you. Your face is going to be unrecognizable."

It makes no difference that the particular impetus for each threat might not always have been identical. To the extent that can be discerned by the accusatory instrument, it appears that most of them were prompted by defendant's displeasure that the complainant permitted her new boyfriend to have contact with the children, although it seems that one threat came after the defendant thought that the complainant had somehow "manipulate[d]" the children into waking him up. But it is immaterial that this particular comment does not mention the new boyfriend, since the ultimate purpose of that conversation was the same as all the others - to terrorize the complainant. Thus, even though the information alleges only five such communications in about three and one half years, the remarkable consistency of purpose that they demonstrate makes out a prima facie case of the "course of conduct" element.

The motion to dismiss for facial insufficiency on this ground is denied.

3. The Counts Charging Stalking in the Fourth Degree Are Facially Sufficient [*5]as to the "No Legitimate Purpose" Element

Alternatively, defendant moves to dismiss both counts of stalking in the fourth degree, charged under Penal Law §§ 120.45(1) and (2). Each of those sections requires that the course of conduct have "no legitimate purpose" and result in a particular type of harm. Citing People v. Welte, 31 Misc 3d 867, 920 N.Y.S.2d 627 (Town Ct Monroe County 2011), and People v. Singh, 1 Misc 3d 73, 770 N.Y.S.2d 560 (App Term 2d Dept 2003), defendant argues that "more than proof of a threat is necessary," Defense Counsel Aff. at ¶ 33, to establish the "no legitimate purpose" element.

This Court rejected a similar argument in connection with Penal Law § 240.30(2), aggravated harassment in the second degree, a closely related statute. That statute has two similarly linked clauses; there must be an act of communication that both demonstrates the "intent to harass or threaten another person" and has "no purpose of legitimate conversation." In People v. Williams, 45 Misc 3d 1202(A), 3 N.Y.S.3d 286 at *2-3 (Crim Ct NY County 2014) (Statsinger, J.), this Court held that as long as the communication alleged had "no legitimate purpose" other than to harass or annoy the complainant, both clauses were satisfied. The Court specifically identified some of the cases that had held otherwise, including Singh and People v. Cruz, 44 Misc 3d 640, 989 N.Y.S.2d 279 (Crim Ct Queens County 2014), and noted that it "respectfully disagree[d] with those cases' analysis of the statute's requirements."[FN2]

As in Williams, this Court holds that, with respect to Penal Law §§ 120.45(1) and (2), the requirements that the course of conduct have "no legitimate purpose" and that it have a particular effect are not two distinct intent elements that must each be separately pled. Rather, the two clauses are best understood as together describing a single element that has two dimensions: the course of conduct must have had have "no legitimate purpose" in that its purpose was to cause the particular harm identified in each subsection: specifically, that it was "likely to cause reasonable fear of material harm to the physical health, safety or property of" the victim or her family, § 120.45(1), or that it"causes material harm to the mental or emotional health" of the victim, § 120.45(2). See also People v. Stuart, 100 NY2d 412, 428, 797 N.E.2d 28, 41, 765 N.Y.S.2d 1, 14 (2003) (defining a communication with "no legitimate purpose" as, unsurprisingly, a communication that has no purpose other than an illegitimate one).

Any other reading of the statute would be absurd, as it would be predicated on the possibility that a person might engage in a course of conduct that was likely to cause the victim to fear for her safety, or that caused material harm to her mental health, but that at [*6]the same time also had a legitimate purpose. There simply is no such thing; it is the illegitimacy of the effect of the course of conduct that makes that conduct a criminal offense in the first place. The Court therefore concludes that, as long as the information pleads facts that support a finding that the defendant engaged in a course of conduct that resulted in the harm or effect described in § 120.45(1) or § 120.45(2) - and defendant does not dispute that the information sufficiently alleges that his conduct had those effects - those same facts also support a finding that the course of conduct had "no legitimate purpose."

The Court recognizes that there is language in People v. Shack, 86 NY2d 529, 541, 658 N.E.2d 706, 714, 634 N.Y.S.2d 660, 668 (1995), that might be construed to mean that "no legitimate purpose" and the intent or result to which it is tied are to be treated as separate elements. That decision at one point notes that § 240.30(2) "imposes criminal liability for making a single telephone call, if placed with the requisite intent and lack of legitimate purpose."Id., emphasis added. But the quoted language is contained within a discussion of the defendant's claim that the accusatory instrument lacked specificity because it did not identify the particular dates on which he was alleged to have made the charged calls, and specifically in the court's conclusion that § 240.30(2) makes out a continuing offense. Id. The court was not identifying the elements of the offense, and thus the quoted language is dicta as to that issue. See, e.g., People v. Suber, 19 NY3d 247, 969 N.E.2d 770, 946 N.Y.S.2d 552 (2012) (language "not essential to [the] holding[]" is dicta).

Accordingly, for this additional reason, the motion to dismiss the counts charging Penal Law §§ 120.45(1) and (2) is denied.

4. The Count Charging Penal Law § 120.45(2) Does Not Sufficiently Allege Initiation

Penal Law § 120.45(2) requires a course of conduct directed at a specific person that causes "material harm" to the person's mental or emotional health, but only where the conduct consisted of "following, telephoning or initiating communication or contact with" the victim. Defendant argues that the count charging Penal Law § 120.45(2) should be dismissed because "there is nothing in the information to support the allegation that the defendant initiated the alleged contact with the complainant." Defense Counsel Aff. at ¶ 34 .The Court agrees that counsel has identified a pleading defect in the allegations underlying this count.

First, with respect defendant's threatening telephone calls, the only fair reading of the word "telephoning" in the statute is that it is intended to cover placing a telephone call, and not participating in a telephone call. Here, the information does not contain language that would support a finding that the defendant initiated the phone calls described in the information - e.g. "I received a telephone call from the defendant in which he said .... ." The information merely describes the content of the two telephone calls, and it cannot be reasonably inferred from this that the defendant placed those calls. Defendant and the complainant have children together and it is just as likely that the complainant placed a call [*7]to the defendant, perhaps to discuss an issue relating to the care or custody of their children. See People v. David, 44 Misc 3d 1212(A), 997 N.Y.S.2d 669 at *2 (Crim Ct 2014) (Statsinger, J) (where facts alleged in support of an element are in equipoise - that is, they support equally the inference of guilt or of innocence - that element is not sufficiently pled).

The same is true with respect to the threatening emails. This particular subsection is clearly intended to cover only contact that is uninvited and unwanted, whether electronic, in person, or by mail. As drafted, the phrase "initiating communication or contact" clearly encompasses only communications or contact emanating from the defendant that are not invited by or in response to communications from the victim. It is this feature - the element of surprise, as it were - that itself causes the harm to the victim's mental or emotional health that the statute is attending to address. When a defendant merely replies to an email sent by the complainant, even if - as here - the reply is threatening, that element of surprise is lacking, and the concomitant harm is reduced.[FN3]

It is important to note that this particular subsection is not directed at the content of any communication at all, only at the effect on the recipient of unwanted contact. It covers any course of conduct that might include any sort of communication, however seemingly benign, that was uninvited. In doing so, the statute recognizes the enormous difference between, say, closing one's response to every email from a friend with "I love you," and repeatedly sending unsolicited emails to a friend that say "I love you." The first of these examples would not violate § 120.45(2), but the second quite easily could.

Thus, since the information does not allege that the defendant either "telephoned" the complainant or that he initiated communication or contact with her when he sent her the threatening emails, the information does not make out a prima facie case of a violation of Penal Law § 120.45(2).

5. Conclusion

For the foregoing reasons, defendant's motion to dismiss the count alleging a violation of Penal Law § 120.45(2) is granted. The motion to dismiss the menacing, harassment and remaining stalking counts is denied.

B. The Count Charging Endangering the Welfare of a Child Is Time-Barred

Here, the only act alleged to have violated Penal Law § 260.10(1) occurred on December 11, 2010. The accusatory instrument was not filed until May 16, 2014, more than two years later. Thus, since no tolling or extension provision applies and the offense, as charged, is a not continuing offense, that count must be dismissed as time-barred.

Endangering the welfare of a child under Penal Law § 260.10(1) is a Class A misdemeanor. According to CPL § 30.10(2)(c) a "prosecution for a misdemeanor must be commenced within two years after the commission thereof." The limitations period can be either tolled or extended under certain defined circumstances, but absent that, the limitations period begins with the commission of the crime and ends with the commencement of the action, which occurs when the accusatory instrument is filed in a criminal court. CPL § 1.20(16)(a).

For most offenses, identifying the date of commission is straightforward - the offense is committed on the date of occurrence. Not every offense occurs on a single occasion, however; some are continuing offenses for purposes of the statute of limitations. For a continuing offense, the limitations period commences on the date offense is completed, not the date the offense began. See, generally, People v. Minott, 41 Misc 3d 1002, 972 N.Y.S.2d 499 (Crim Ct NY County 2013) (Statsinger, J); People v. Eastern Ambulance Service, Inc., 106 AD2d 867, 868, 483 N.Y.S.2d 508 (4th Dept.1984).

Here, the instrument was filed more than two years after the date of the offense, and none of the tolling or extension provisions set out in CPL § 30.10(3) and (4) apply. The offense charged is not larceny by a fiduciary, § 30.10(3)(a), misconduct by a public servant, § 30.10(3)(b), an environmental or tax crime, §§ 30.10(3)(c), (d), or a sex offense, §§ 30.3010(3)(e), (f). Similarly, defendant was not a fugitive, § 30.10(4)(a), and there is no issue regarding "relation back" to an otherwise timely prior accusatory instrument, § 30.10(4)(b).In addition, while endangering the welfare of a child can constitute a continuing offense for purposes of the statute of limitations, see, e.g., People v. Bernardo, 84 AD3d 1717, 923 N.Y.S.2d 812 (4th Dept. 2011); People v. Scanlon, 52 AD3d 1035, 861 N.Y.S.2d 426 (3d Dept. 2008), it is not always a continuing offense. The offense can also be committed by a "single act." People v. Keindl, 68 NY2d 410, 502 N.E.2d 577, 509 N.Y.S.2d 79 (1986) ("[e]ndangering the welfare ... is a crime that by its nature may be committed either by one act or by multiple acts"). Here, the defendant is charged only with a single act - threatening to shoot the children and their mother in the children's presence on December 11, 2010. There are no facts pled that allege that defendant committed any child endangering conduct after May 16, 2012, which would be necessary for this count to be within the two -year limitations period.

Finally, the Court notes that this count is not saved by the fact that it is included in an accusatory instrument in which all of the other offenses charged are continuing offenses and are not time-barred.[FN4] Each count must be examined separately when considering the statute of limitations. See, e.g., People v. Kirk, 96 AD3d 1354, 945 N.Y.S.2d 818 (4th Dept [*8]2012) (dismissing as time-barred seven counts of a multi-count indictment); People v. Ligon, 188 Misc 2d 477, 729 N.Y.S.2d 849 (Dist Ct Nassau County 2001) (dismissing one count as time-barred, while a second count in the information was not).

For these reasons, the count charging defendant with violating Penal Law § 260.10(1) is dismissed as time-barred. In light of this, the Court does not reach defendant's alternative argument that this count is facially insufficient.

IV. CONCLUSION

For the foregoing reasons, the count charging the defendant with stalking in the fourth degree under Penal Law § 120.45(2) is dismissed as facially insufficient, and the count charging the defendant with endangering the welfare of a child under Penal Law § 260.10(1) is dismissed as time-barred. Defendant's motion to dismiss for facial insufficiency is denied as to all remaining counts.

Dated: May 13, 2015_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court Footnotes

Footnote 1:The actual period is more like 42 months.

Footnote 2:While the Court did not specifically address Welte in Williams, Welte followed Singh. And as discussed above, this Court has previously declined, and continues to decline, to follow Singh.

Footnote 3:There are other statutes that cover threatening communications that do not require that the defendant initiated the communication. E.g., Penal Law §§ 240.30(1)(a), 240.26(1).

Footnote 4:As detailed above, all of the other offenses charged in the information have "course of conduct" as an element.