Defendant moves this Court for various discovery relief. Defendant also moves this Court to inspect the Grand Jury minutes regarding this matter and to dismiss the Prosecutor's Information after said review. Finally, Defendant moves this Court to dismiss the information against him pursuant to C.P.L.§100.15 and 100.40 based on the assertion that the information is facially insufficient. The People join in the Defendant's motion to dismiss the complaint.

The Defendant is charged by Prosecutor's Information with violating Penal Law §240.25, Harassment in the first degree as a Class B Misdemeanor. The allegations involve the Defendant allegedly threatening his wife on May 3, 2005, by saying "I'm going to slit your fucking throat," and allegedly threatening his wife on May 5, 2005, by saying "You ever talk about my mother, I'll put a bullet in your fuckin head." In her Supporting Deposition the Complainant also alleges that the Defendant threatened her by stating "I'm going to chop you up and spread you on the highway." The Complainant alleges four other instances of threats of physical violence including allegations that the Defendant has thrown chairs at her. In the Domestic Incident report the Complainant alleges being in fear of physical injury from her husband.

Defendant's motion is decided as follows:

DISCOVERY MOTION:

Defendant's request for a Bill of Particulars and various other discovery is moot in as much as the People have provided Voluntary Discovery, and have provided answers to Defendant's various [*2]requests. If the Defendant believes that he is entitled to discovery of items not contained therein, said items shall be discussed at a Bench conference after the People and the Defendant have attempted to resolve said discovery issue(s). Defendant's motion to require the People to fulfill their continuing obligation under Brady v. Maryland, is granted.

SUPPRESSION HEARING:

Defendant's motion for a Huntley hearing is granted.

SANDOVAL HEARING:

Defendant's motion for a pretrial "Molineaux/Ventimiglia/Sandoval" hearing is granted. Said hearing(s), if appropriate, shall be conducted immediately prior to trial. Defendant's motion for an audibility hearing is granted. Said hearing shall also take place immediately prior to trial.

MOTION TO INSPECT THE GRAND JURY MINUTES

AND DISMISS BASED ON THE GRAND JURY MINUTES:

Defendant moves this Court to inspect the Grand Jury minutes regarding this matter and to dismiss the Prosecutor's Information after a review of the Grand Jury minutes. The People join in the Defendant's application. In support of the Defendant's application, the People cite Criminal Procedure Law Section §210.30. The Defendant has not cited any authority for his application. C.P.L. §210.30(2) permits a Defendant to make a motion for the Court to inspect Grand Jury minutes. C.P.L. §210.20 permits a Defendant to make a motion for the Court to dismiss or reduce indictments after the Court reviews the Grand Jury minutes. C.P.L. §210.45 outlines the procedure to be follow regarding a motion pursuant to C.P.L. §210.20.

C.P.L. §210.30(2) provides that a Defendant may make a motion for the Court to inspect the minutes of "a grand jury proceeding resulting in an indictment ..." (emphasis added). Firstly, the Grand Jury did not return an indictment in this case. Therefore, there are no Grand Jury minutes "resulting in an indictment" for this Court to review. This Court only has before it a Prosecutor's Information charging the Defendant with one (1) count of violating Penal Law §240.25, Harassment in the first degree as a Class B Misdemeanor. Secondly, a motion to dismiss under C.P.L. §210.20 after the inspection of the Grand Jury minutes, would have to be made to "a superior court" after the Defendant is "arraigned on an indictment". Since District Court is not a "superior court" and because the Defendant has not been arraigned on an indictment, the Defendant's motion, joined into by the People, for this Court to inspect the Grand Jury minutes and dismiss the Prosecutor's Information is denied as improper, inapplicable and without statutory authority.

MOTION TO DISMISS-FACIAL INSUFFICIENCY:

Defendant moves this Court to dismiss the Prosecutor's Information pursuant to C.P.L.§100.15 and 100.40, based on facial insufficiency. The People join in the Defendant's application.

Penal Law §240.25, Harassment in the first degree, provides in relevant part as follows:

"A person is guilty of harassment in the first degree when he or she intentionally and repeatedly [*3]harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury."

As set forth above, the Prosecutor's Information outlines various alleged threats which the Defendant made to the Complainant, i.e., "You ever talk about my mother, I'll put a bullet in your fuckin head." On a separate occasion, and while allegedly making a sweeping motion across his neck, the Defendant allegedly stated to the Complainant, "I'm going to slit your fucking throat." Defendant argues that these statements and actions do not constitute a course of conduct and are not repeated acts which would place a person in reasonable fear of physical injury. This Court disagrees. This Court holds that repeated alleged threats to harm or kill another person constitute a course of conduct and in addition are repeated acts which can place a person in reasonable fear of physical injury.

The People separately argue that the Prosecutor's Information should be dismissed because the People cannot establish the requisite intent for the Harassment charge, and because there was a delay in the Complainant reporting the incident to the Police.

Failure to Establish Intent:

The People have presented to the Court a transcript of a tape recording of one of the alleged conversations between the Defendant and the Complainant wherein the Defendant allegedly states to the Complainant "You ever talk about my mother, I'll put a bullet in your fuckin head." The People submit that even though the Defendant stated those words, they cannot establish that the Defendant intentionally harassed the Complainant. The People argue that the conversation was between four (4) people, namely: the Defendant, the Complainant, their son, and their son's girlfriend. The People characterize the conversation as "provocative" and seem troubled by the fact that the Complainant secretly recorded the conversation. This, notwithstanding the fact that under New York law it is permissible for one party to a conversation to record same. The People urge that the statement allegedly made by the Defendant could "only be viewed as a defensive outburst, rather than a threat against the complainant." The People's argument is belied by the explicit statement of the Complainant that the Defendant's alleged threats put her in fear of physical injury. The People's position is further weakened by the fact that the Complainant has repeatedly expressed a willingness to proceed with the prosecution of this case and testify at trial.

This Court rules that the issue of whether the words allegedly uttered by the Defendant could reasonably put one in fear of physical injury is one of fact for a Jury to determine.

Failure to Immediately Report:

In further support of dismissal, the People argue that the Complainant failed to report the incident to the Police for two (2) months. The incident allegedly occurred on May 5, 2005, and the Complainant reported it to the Police on July 12, 2005. The People assert that the two (2) month delay severely undermines the credibility of the Complainant and consequently their ability to establish that the Complainant was in reasonable fear of physical injury. [*4]

This Court rejects the general argument that a delay in reporting a Domestic Violence incident prevents the People from establishing that the Complainant was in reasonable fear of physical injury. This Court notes that a delay in reporting, and in many instances a complete failure to report at all, is a hallmark of many Domestic Violence incidents. In fact, there are a legion of plausible reasons that a complainant in a Domestic Violence case would fail to immediately report an incident. If a delay in reporting an incident is now being used by the People as a benchmark as to whether they will move forward with a Domestic Violence case, many Complainants would be prohibited from their day in court and the People would have to dismiss many of the cases which they are currently prosecuting. This Court refuses to adopt that position or accept said reasoning.

In their motion papers filed with this Court, the People point out that the Complainant previously called the Police on five (5) other occasions to report domestic incidents against her husband, the Defendant. This fact, combined with the serious nature of the allegations before this Court and the Complainant's statements that the Defendant's actions instilled fear in her, establishes ample reason for the instant case not to be dismissed.

This Court holds that the question of whether the Complainant's delay in reporting the incident in this case indicates that the Complainant was not in reasonable fear of physical injury, is a question of fact and as such, a question for a Jury to resolve and determine. Neither the Defendant nor the People have established any credible reason why this case should not proceed to trial. In fact, the arguments of both the Defendant and the People compel this matter to proceed to trial. The People's perceived lack of strength of their case, whether real or imagined, should not prohibit this case from being adjudicated by a Jury.

Both the Defendant's and the People's motion to dismiss the above entitled action is denied. This matter will appear on the Trial calendar on May 1, 2006.

Dated:April 20, 2006ENTER:

____________________________________

Norman St. George, District Court Judge

APPEARANCES: