People v Turpin (Louis)

[*1] People v Turpin (Louis) 2005 NYSlipOp 50970(U) Decided on June 24, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: June 24, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-1724 S CR

The People of the State of New York, Appellant,

against

Louis Turpin, Respondent.

Appeal by the People from an order of the Justice Court, Village of Westhampton Beach, Suffolk County (G. Betts, J.), entered September 12, 2004, granting defendant's motion to dismiss the accusatory instrument, charging harassment in the second degree (Penal Law § 240.26 [1]), as jurisdictionally defective.

Order unanimously reversed on the law, defendant's motion to dismiss the
accusatory instrument denied, information reinstated and matter remanded to the court below for all further proceedings.

At the outset, it should be noted that the information was properly verified. The requisite form notice regarding false statements being punishable as a class A misdemeanor pursuant to Penal Law § 210.45, together with complainant's signature thereunder, satisfied the verification requirements of the Criminal Procedure Law (see CPL 100.30 [1] [d]).

Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms to the requirements of CPL 100.15 and the factual allegations (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part and the non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof. The law does not require that the most precise words or phrases be used. Rather, the facts must be alleged with sufficient detail to permit a defendant to prepare himself for trial and to prevent a defendant from being tried twice for the same offense (People v Konieczny, 2 NY3d 569, 575 [2004]; People v Zambounis, 251 NY 94 [1929]). The foregoing is a non-waivable jurisdictional requirement (People v Alejandro, 70 NY2d 133 [1987]) with the [*2]exception of the hearsay requirement, which is deemed waived absent a pre-trial motion (see People v Casey, 95 NY2d 354 [2000]) or upon a plea of guilty (People v Pittman, 100 NY2d 114, 122 [2003]).

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26 [1]). The information herein alleged that defendant, during the evening hours on April 21, 2002, threatened the complainant several times. An isolated threat to "beat the crap out of [complainant] some day or night in the street", absent some indication that the threat was to be taken seriously, is not sufficient to support a conviction of harassment in the second degree under section 240.26 [1] of the Penal Law (see People v Dietze, 75 NY2d 47, 53 [1989]; see also People v Todaro, 26 NY2d 325, 330 [1970]). However, this is not the situation in the case at bar. Here, the information in addition to reciting the threat, alleged that it was repeated several times during the evening in issue. Since, said allegations, if found by the trier of fact to be true, would be sufficient to establish defendant's guilt beyond a reasonable doubt, the information is legally sufficient.
Decision Date: June 24, 2005