People v Selinger

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[*1] People v Selinger 2015 NY Slip Op 51161(U) Decided on August 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2015
Criminal Court of the City of New York, New York County

The People of the State of New York


Hannah Selinger, Defendant.


For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Sarah BrigliaFor the Defendant: The Legal Aid Society, by Benjamin Klein, Esq.
Steven M. Statsinger, J.

Defendant, charged with stalking in the fourth degree, Penal Law § 120.45(1), and harassment in the second degree, Penal Law § 240.26(3), moves to dismiss the stalking count as facially insufficient. She moves, in the alternative, for dismissal of the entire information in furtherance of justice under CPL §§ 170.30(1)(g), 170.40 and People v. Clayton, 41 AD2d 204 (2d Dept 1973).

For the reasons that follow, the motion to dismiss the stalking count is GRANTED, with leave to supersede, while the Clayton motion is DENIED.


A. The Allegations

According to the information, between October of 2014 and February of 2015, the defendant repeatedly harassed the complainant, her half-sister, over the Internet. Defendant first posted a photograph on Instagram that contained the complainant's telephone number and text suggesting that the complainant was seeking sexual partners. The complainant received telephone solicitations for sex as a result of the posting.

Next, defendant, using the web site, RSVP'd to the complainant's wedding in her own name as well as that of her dog and her deceased father, even though defendant was not invited to the wedding.

Finally, one day later, the complainant received an email notification that, using an alias, the defendant had named a cockroach after the complainant through a wildlife conservation website.

B. Legal Proceedings

Defendant was arraigned on April 17, 2015, on an information charging her with violating [*2]Penal Law §§ 120.45(1) and 240.26(3). The Court released the defendant and set a motion schedule. Defendant filed the instant motion on June 4, 2015, the People responded on June 15, and the matter has been sub judice since then.


The information, sworn to by the complainant, provides that

On or about October 10, 2014, at approximately 2:00 PM, in New York County and elsewhere, I observed a photograph of a telephone number and a caption stating, "Found on the street. No.callme #anytakers? #foragoodtime." posted on Instagram by username "hannahleeselinger," which is a username I know to be associated with the defendant. The telephone number in the above described photograph belongs to me, and I received approximately 15 telephone calls between October 10, 2014 and October 17, 2014 from telephone numbers I did not recognize and individuals' names and voices I was not familiar with. Callers for several of these telephone calls solicited me for sex.

On or about February 11, 2015, at approximately 5:30 PM, while I had been in New York County, I received 3 online RSVP email notifications via my account, which is an account I have used to facilitate wedding invitations. As of February 11, 2015, I had not sent any invitations to any guests. On that date, at approximately 5:30 PM, I received the above described online RSVP email notifications from the following 3 names: (1) Hannah Selinger, (2) Pickle Selinger, and (3) Neil Selinger. I know the name "Pickle Selinger" to be associated with the defendant's dog and I know the name "Neil Selinger" to belong to the defendant's deceased father.

On or about February 12, 2015, at approximately 3:19 PM, while I had been in New York County, I received an email from the Wildlife Conservation Society, that stated that "Anna Kramer" at the email address named a cockroach "[the complainant's name]." The email contained a message: "A hiss just for you." The email further contained a message from "Anna Kramer" at the above described email address that stated, " I've named this roach after you. Happy V-Day! - Your Secret Admirer." I know the above described email address to be associated with the defendant.

Due to the defendant's above described conduct, I am annoyed, alarmed, and fear for my safety and the safety of my family members. I do not want to be contacted by the defendant.


A. Count One is Facially Insufficient

Defendant's challenge to the count charging her with violating Penal Law § 120.45(1) attacks the sufficiency of the pleading as to virtually every element of that offense, as well as of defendant's identity as the perpetrator. As to one element, defendant is correct. The information fails to make out [*3]a prima facie case of the specific knowledge required by § 120.45(1).

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 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." Kalin, 12 NY3d at 228-29, 906 N.E.2d at 383, 878 N.Y.S.2d at 655 (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 an information allege facts that would prove a 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. Penal Law § 120.45(1)

A person is guilty of stalking in the fourth degree under Penal Law § 120.45(1) when she

intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct ... is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted.

The statute requires that the defendant have either actual or constructive knowledge that her behavior will cause the victim to fear "material harm" to one of the specified interests. In this case, defendant's Internet pranks, while clearly calculated to annoy her sister and cause her mental distress, do not reflect the knowledge require by this section. Obnoxious but non-threatening behavior is not, by itself, enough. People v. Lewis, 29 Misc 3d 978, 909 N.Y.S.2d 321 (Crim Ct NY County 2010).

3. The Knowledge Element is Not Made Out by the Facts Here

Without a doubt, the conduct attributed to the defendant was idiotic and infantile, and was vexing and annoying to the complainant to a degree far beyond that which any person should ever have to be subjected. But this Court simply cannot locate any reported [*4]decision sustaining the knowledge element of § 120.45(1) on facial sufficiency review with conduct that is annoying, even seriously annoying, that does not contain either an actual or implied threat of danger, or that is not preceded by background facts that would make the obnoxious behavior itself constitute an implicit threat.

The Court begins with Lewis, a case where the court concluded that this element was not made out. Lewis involved a dispute between roommates, where the defendant, over a period of three weeks, repeatedly blocked the door to the complainant's bedroom by shutting the door in her face, grabbed her hand when she tried to move the defendant's belongings, and told the complainant that she should be nicer. 29 Misc 3d at 981, 909 N.Y.S.2d at 324. "G]iven the relatively mild though hostile conduct depicted in the accusatory instrument, it would be unreasonable to conclude that the defendant was, or should have been, aware that her actions would [cause the complainant to fear for the safety of her person or possessions]. This is because such fears would not be reasonable under the circumstances alleged." Id. The court so concluded even though the complainant actually experienced such fear.

This Court sees the conduct here in much the same way. Defendant's behavior was the Internet equivalent of having pizza delivered to an enemy, albeit over and over and over again. The Court does not doubt that the complainant experienced fear for her personal safety. But, as nettlesome the defendant's behavior was, it would not be reasonable, absent other facts not pled, to conclude that defendant knew, either actually or constructively, that the complainant would perceive the complainant's behavior as threatening.

Generally, for an information charging a violation of § 120.45(1) to sufficiently allege the knowledge element, the conduct must contain at least an implied threat of danger. For example, in People v. Paes, 17 Misc 3d 1120(A), 851 N.Y.S.2d 65 (Crim Ct NY County 2007), the defendant mailed letters to the complainant that included bizarre religious rants and references to "Satan," "Madonna, "Jesus" and "Hitler." One letter contained a nude picture of the defendant, and warned "Joe's next," where the complainant was named Joseph. The court noted: "While the communication may not represent an overt and clearly stated threat, it is clear to this court that the inference is sufficient to convey the threat."

An implied threat can derive from a variety of factors; among them are physical proximity or trespass. In People v. Walcott, 47 Misc 3d 1217(A) (Crim Ct NY County 2015), for example, this Court found the knowledge element satisfied in a case where the complainant observed the defendant sitting on her fire escape staring in at her through the window: "Any reasonable person would understand that repeatedly mounting someone else's fire escape and staring at that person through the window would be likely to cause reasonable fear of material harm to the physical health, safety or property of such person.'"

Similarly, in People v. E.P., 20 Misc 3d 1119(A), 867 N.Y.S.2d 19 (Crim Ct NY County [*5]2008), the defendant bombarded a celebrity with unsolicited communications and in-person visits. The court noted that "defendant should have reasonably known that his actions were likely to cause [reasonable fear]. The defendant is neither acquaintance nor colleague to the complainant; and the objectives allegedly stated in defendant's communications would tend to indicate an interest in the complainant that was well on its way to becoming the kind of obsession that can only lead to more problems and possible danger."

An implicit threat - and hence the requisite knowledge - can also be reasonably inferred from facts suggesting that the defendant has threatened the complainant in the past. There is therefore a reasonable inference of the requisite knowledge where the defendant's stalking violates an order of protection. For example, in People v. Kelly, 44 Misc 3d 1203(A), 997 N.Y.S.2d 100 (Crim Ct NY County 2014), the knowledge element was sufficiently pled because the defendant repeatedly followed the complainant in public, in violation of an order of protection. "Since the defendant knew that the complainant had been sufficiently concerned about her behavior to appear in Family Court and obtain an Order of Protection against her, there is a reasonable inference ... that she knew that her actions would cause the complainant to fear that he would be harmed." See also See also People v. Tyrrell, 44 Misc 3d 1211(A), 997 N.Y.S.2d 669 (Poughkeepsie City Court 2014) (knowledge element made out where defendant placed a GPS device on complainant's car, in violation of an order of protection, which enabled him to track her movements and take pictures of her and her children.)

This case is categorically different. The conduct does not involved either physical proximity or trespass, as the only acts alleged are harassment over the Internet. The conduct itself contains neither an implicit nor an explicit threat of physical harm to the complainant, and there are no background facts pled that might place the defendant's behavior in a different context.

Accordingly, the Court concludes that the People have failed to plead sufficiently the knowledge element of Penal Law § 120.45(1).

4. The Remaining Elements Are Sufficiently Pled

The Court, however, rejects defendant's arguments as to the remaining elements. First, the information makes out a prima facie case as to defendant's identity as the perpetrator. Some of the conduct - the Instagram posting and the RSVP's on - used the defendant's actual name. And the activity involving the Wildlife Conservation Society originated from an email address that the complainant recognized as one that this defendant had used. Even if these facts do not entirely eliminate the possibility that the conduct was undertaken by someone posing as the defendant, they do so sufficiently for the purposes of a pleading.

In addition, the information sufficiently alleges a "course of conduct" - actions separated by time but united by a common purpose, see, e.g., Kelly, 44 Misc 3d at 1203(A), 997 N.Y.S.2d at 100 - directed at this particular complainant. Finally, it is reasonable to draw the inference that the defendant's conduct had "no legitimate purpose" other than to cause the complainant emotional [*6]distress. See 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).

5. Conclusion

The count of the information charging defendant with violating Penal Law § 120.45(1) is dismissed, with leave to supersede.

B. The Clayton Motion is Denied

In seeking dismissal of the information in furtherance of justice, defendant, through counsel, characterizes the offense as a "spat between two sisters in the advance of a wedding," Klein Aff. at ¶ 26, that is so de minimis in its seriousness that it should not be resolved in Criminal Court, "but rather in consultation with other family members." Id. Counsel also cites defendant's clean record and professional accomplishments in support of the motion. Kelin Aff. at ¶ 27.

Pursuant to CPL § 170.30(1)(g), a court has the power to dismiss an accusatory instrument "in furtherance of justice"after considering the factors set out in CPL § 170.40(1). See also, People v. Clayton, 41 AD2d 204, 206-208 (2dDept. 1973). The power to dismiss an accusatory instrument in furtherance of justice 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 AD2d 34, 36 (1st Dept. 1992) (citations and internal quotation marks omitted). A Clayton motion should be granted only where the defendant has demonstrated by a preponderance of the credible evidence that a compelling reason exists to warrant dismissal in the interest of justice; if the defendant fails to meet this burden, the court may summarily deny the motion. People v. Schlessel, 104 AD2d 501, 502 (2d Dept. 1984). The Court, to the extent applicable, must consider the factors enumerated in CPL § 170.40(1)(a) through (j), and weigh the respective interests of the defendant, the complainant and the community at large. People v. Rickert, 58 NY2d 122, 127 1983]; People v. Belkota, 50 AD2d 118, 120 [4th Dept 1975).

The Court has considered all of the factors contained in § 170.40(1) and has concluded that defendant has failed to meet the very high standard required for dismissal in furtherance of justice. Contrary to defendant's characterization of this offense as a non-criminal family matter, this Court views defendant's conduct as extremely serious. It clearly caused a great deal of emotional distress to the complainant. And defendant's personal accomplishments and lack of a criminal record do not outweigh the seriousness of her conduct. Accordingly, her motion to dismiss in furtherance of justice is denied.


For the foregoing reasons, defendant's motion to dismiss the count charging her with stalking in the fourth degree, Penal Law § 120.45(1) is granted, with leave to supersede. The motion to dismiss in furtherance of justice is denied. This constitutes the Decision and Order of the Court.

Dated: August 11, 2015_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court

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