People v Velez

[*1] People v Velez 2018 NY Slip Op 50102(U) Decided on January 24, 2018 Criminal Court Of The City Of New York, Bronx County Rosenblueth, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2018
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Marie Velez, Defendant.



2017BX033767



For the Motion:

Michael P. Kushner, Esq.

Kushner Law Group

16 Court Street, 36th floor

Brooklyn, New York 11241

Opposed:

ADA Adam G. Kane

Bronx District Attorney's Office

198 East 161st Street

Bronx, New York 10451
Jeffrey Rosenblueth, J.

The defendant's omnibus motion is decided as follows:

MOTION TO DISMISS - FACIAL INSUFFICIENCY:

Defendant is charged in the misdemeanor information with Aggravated Harassment, [PL § 240.30(2)], under count one, Harassment in the First degree, [PL § 240.25], under count two, and Harassment in the Second Degree, [PL § 240.26(3)], under count three. The misdemeanor information reads, in pertinent part, that between May 20, 2017 at approximately 2:13 p.m. and June 22, 2017 at approximately 5:15 p.m. inside of 6 West Farms Square Plaza, AptNo.22G in the county of the Bronx, deponent Evelyn Rodriguez alleges:

"Defendant did call deponent a total of seven times on the telephone and each time leaving a voicemail message. Deponent further states that in each message defendant stated in sum and substance: REMEMBER THE TIME THAT YOU CAME TO A MARRIED MANS [sic] HOUSE. YOU WILL SEE WHAT IM [sic] GOING TO DO TO YOU. YOU WILL PAY BECAUSE YOURE [sic] A WHORE YOU SON OF A BITCH. YOU FUCKED MY MAN IN MY HOUSE. YOU WILL PAY. THATS [sic] WHY YOU [*2]DON'T HAVE FRIENDS. WAIT UNTIL I GET YOU SON OF A BITCH YOURE [sic] A WHORE. YOU TOLD WILMER THAT HES [sic] NOT THE FATHER OF MY CHILDREN, YOU SON OF A BITCH. I KNOW WHERE YOU MOVED, IM [sic] THE EVIL NOW AND I WILL FIND YOU. YOU PIECE OF GARBAGE. Deponent states that, as a result of the aforementioned actions, deponent experienced annoyance and alarm."

Defendant moves to dismiss the accusatory instrument pursuant to CPL § 170.35, CPL § 100.25 and CPL § 100.40 claiming that it fails to contain factual allegations sufficient to provide reasonable cause that defendant committed the offenses charged. Specifically, defendant contends that the information fails to establish that defendant "communicated" with the complainant under PL § 240.30(2), and that her actions constituted pure speech protected by the First Amendment of the United States Constitution rather than "true threats" which fall outside of First Amendment protection.

The People, in opposition to defendant's motion, contend that the information is facially sufficient in that it provides adequately detailed facts to support the charges and suitable notice for the defendant to prepare a defense to the charges alleged in the information. The People further submit that the allegations in the information demonstrate that defendant communicated with the complainant as defined under the statute, and that her constitutional claim is not applicable to the instant charges.

Defendant's motion to dismiss the accusatory instrument for facial insufficiency is decided as follows:

In order for a misdemeanor information to be sufficient on its face it must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged (CPL §100.15(3); CPL§ 100.40(1)[b]; CPL §70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses charged (see CPL §100.40(1)(c); People v. Henderson, 92 NY2d 677). Reasonable cause exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" [CPL § 70.10 (2)]. An information which fails to satisfy these requirements is jurisdictionally defective (see CPL §170.35); People v. Alejandro, 70 NY2d 133; People v. Dumas, 68 NY2d 729).

The People bear the burden of satisfying the facial sufficiency requirements by doing so within the "four corners" of the accusatory instrument [see People v. Jones, 9 NY3d 259; People v. Thomas, 4 NY3d 143; People v. Liranzo, 46 Misc 3d 140(A)]. In evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the People and consider all favorable inferences drawn therein [see People v Williams, 84 NY2d 925; People v Contes, 60 NY2d 620; People v Barona, 19 Misc 3d 1122[A]; People v. Mellish, 4 Misc 3d 1013(A)].

Although, mere conclusory allegations are insufficient (see CPL § 70.10(2); People v. Dumas, supra) an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v. Mills, 1 NY3d 268; People v. Bello, 92 NY2d 523; People v. Mayo, 36 NY2d 1002). So long as the factual allegations of an information give an [*3]accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see People v. Kasse, 22 NY3d 1142; People v Kalin, 12 NY3d 225; People v. Casey, 95 NY2d 354). Further, the facts alleged need only establish the existence of a prima facie case, even if it those facts would be insufficient to establish guilt beyond a reasonable doubt (see People v. Jennings, 69 NY2d 103). Moreover, in assessing the facial sufficiency of an information, the court " 'is not required to ignore common sense or the significance of the conduct alleged' ", People v. Gonzalez, 184 Misc 2d 262, 264 quoting People v. Abdul, 157 Misc 2d 511.

Penal Law § 240.30(2), Aggravated Harassment, sets forth that "[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy or alarm another person, he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication."Penal Law § 240.25, Harassment in the First Degree, sets forth, in pertinent part, that "[a] person is guilty of harassment in the first degree, when he or she intentionally and repeatedly harasses another person... by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury."Penal Law § 240.26(3), Harassment in the Second Degree, sets forth that "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person, and which serve no legitimate purpose."

Here, the accusatory instrument is facially insufficient inasmuch as it fails to set forth any facts of an evidentiary nature within its "four corners" to establish reasonable cause that defendant was the caller who left the alleged voicemail messages (see CPL § 70.10(2); CPL § 100.15(3); People v, Dumas, supra). Significantly, there are no allegations that the voicemails derived from a telephone number that the complainant recognized as defendant's or that she had prior familiarity with defendant's voice such that she would be able to recognize it on the voicemails (see People v. Ford, 53 Misc 3d 318; People v. Gaddy, 51 Misc 3d 1205(A), 2016 NY Slip Op 50426(U); People v. Spruill, 49 Misc 3d 1202(A), 2015 NY Slip Op 51354(U); People v. Rodriguez, 49 Misc 3d 867, 869; People v. Garcia, 48 Misc 3d 1204(A), 2015 NY Slip Op 50955(U); People Thompson, 28 Misc 3d 483, 487).

Accordingly, the defendant's motion to dismiss the accusatory instrument for facial insufficiency is granted.

Based on the foregoing, the remaining branches of defendant's motion are rendered moot.

The People are granted leave pursuant to CPL § 170.30 to move to amend, supercede or otherwise cure the defects in the accusatory instrument.

Dated: January 24, 2018

JEFFREY ROSENBLUETH, J.C.C.