The charges in this case arise out of an alleged abuse of the 311 Citizen Service Center. In New York City's fiscal year 2006, the 311 system received 1,034,563 New York Police Department related inquiries, 260,915 of which were noise complaints (see Fiscal 2006 Mayor's Management Report, page 116). The New York City Department of Environmental Protection, the agency charged with enforcement of the city's noise code, lists noise complaints as the number one quality of life issue for city residents and touts that the new noise code, effective July 1, 2007, "establishes a flexible, yet enforceable noise code that responds to the need for peace and quiet while maintaining New York's reputation as the City that never sleeps'." (http://www.ci.nyc.ny.us/html/dep/html/airnoise.html). The Department's website directs aggrieved residents to call 311 in order to contact the Department. (http://www.ci.nyc.ny.us/html/dep/html/contact.html).

This defendant is charged with making 268 unfounded noise complaint calls to the 311 system resulting in 268 counts of falsely reporting an incident in the third degree (PL  240.50[3][c]), as well as one count of resisting arrest (PL  205.30) and one count of aggravated harassment in the second degree (PL  240.30[1][a]). She is representing herself and by Notice of Motion dated November 16, 2006, an Amended Motion dated November 20, 2006, and Supplemental Omnibus Motion dated January 10, 2007, she has moved to dismiss the information for facial insufficiency and for various other relief.

The superceding information, dated December 19, 2006, alleges that between January 4, 2006, and September 9, 2006, the defendant made approximately 268 [*2]baseless calls complaining about noise emanating from a bar next door to her apartment. The information states that the New York City Police Department is required to dispatch police officers to respond to all noise complaints made through the 311 system. The information further alleges that a police officer visited the bar on multiple occasions during the described period and concluded that the noise level was appropriate and not excessive. On September 9, 2006, the same officer observed the defendant leaving her apartment building and when he tried to arrest her, she swung her arms, kicked the officer in the chest and ran away. At the time of her arrest the officer reports that the defendant stated in substance: "They're not false reports. The bar has an illegal permit. The bar is run by the Irish mob. The police protect it because it's a cop bar. The lieutenant is corrupt. This is the third time I've been kidnapped. I make those calls because I have a common wall with the bar and the noise is unbearable."

Also, the superceding information, dated December 19, 2006, adds the charge of aggravated harassment in the second degree and further alleges that, on November 2, 2006, the officer received an envelope at his home containing a one-page color print-out of a Department of Buildings violation notice against the bar with several sections marked by yellow highlighter. The return address on the envelope was the address of the bar. Additionally, the officer states that an identical copy of the Department of Buildings violation notice, similarly marked by yellow highlighter, was attached to the defendant's pro se motion dated November 20, 2006.

Defendant's motion is decided as follows:

Motion to Dismiss for Facial Insufficiency

An information is facially sufficient if the factual section contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense charged (CPL  100.15; CPL  100.40[1][b]). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense (CPL  100.40[1][c]; People v. Alejandro, 70 NY2d 133, 135 [1987]). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial (see People v Henderson, 92 NY2d 677, 680 [1999]). While the factual allegations of an information must give the defendant sufficient notice to prepare a defense and prevent the defendant from being twice tried for the same offense, they should be given a fair and not overly restrictive reading (see People v. Casey, 95 NY2d 354, 360 [2000]). When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People (see People v. Gonzalez, 184 Misc 2d 262, 708 N.Y.S.2d 564 [App Term, 1st Dept 2000], lv. denied 95 NY2d 835 [2000]). However, conclusory allegations are insufficient (see People v Dumas, 68 NY2d 729 [1986]) and a court need not ignore common sense or the significance of the alleged conduct in determining facial sufficiency (Gonzalez, 184 Misc 2d at 264).

Falsely Reporting an Incident in the Third Degree

Penal Law  240.50 [3][c] states: "A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he: [3] gratuitously reports to a law enforcement [*3]officer or agency [c] false information relating to an actual offense or incident to the alleged implication of some person therein." Defendant argues that the 311 Citizen Service Center is not a law enforcement agency covered by the statute. However, law enforcement officers or agencies encompassed by the statute include more than just police departments (see People v. Fuschino, 278 AD2d 657 [3rd Dept 2000] [finding false reports to an employee of public utility that was specifically designated to deal with electric and gas emergencies was covered by Penal Law  240.50[2]). As previously noted, the 311 system received over 260,000 noise related complaints in New York City's fiscal year 2006 (see Fiscal 2006 Mayor's Management Report, page 116). New York City's 311 Citizen Service Center was created to assist residents with non-emergency inquires and its stated mission is to:

1) provide the public with quick, easy access to all New York City government services and information while maintaining the highest possible level of customer service, 2) help agencies improve service delivery by allowing them to focus on their core missions and manage their workload efficiently, and 3) provide insight into ways to improve City government through accurate, consistent measurement and analysis of service delivery Citywide. (http://www.nyc.gov/html/doitt/html/about/about_311.shtml).

The website of the Public Advocate for the City of New York directs residents, when they have a complaint about noise from a bar or nightclub, to call either their local New York City Police precinct or contact the New York City Department of Environmental Protection through the 311 system (http://pubadvocate.nyc.gov/services/noise.html). Additionally, the officer alleges in the complaint that he is familiar with the procedure followed by the New York City Police Department in response to 311 calls about excessive noise and that when a noise complaint is made, the New York City Police Department is required to dispatch officers. Accordingly, this Court finds that the 311 Citizen Service Center is a law enforcement agency covered by the statute.

This determination does not defeat defendant's motion to dismiss the 268 counts of false reporting. In order to be sufficient, the information must allege facts of an evidentiary nature demonstrating reasonable cause to believe that the defendant knowingly made false complaints of unreasonable noise. Noise is highly regulated in New York City. The current New York City Administrative Code § 24-202 states: It is hereby declared to be the public policy of the city to reduce the ambient sound level in the city, so as to preserve, protect and promote the public health, safety and welfare, and the peace and quiet of the inhabitants of the city, prevent injury to human, plant and animal life and property, foster the convenience and comfort of its inhabitants, and facilitate the enjoyment of the natural attractions of the city. It is the public policy of the city that every person is entitled to ambient sound levels that are not detrimental to life, health and enjoyment of his or her property. It is hereby declared that the making, creation or maintenance of excessive and unreasonable noises within the city affects and is a menace to public health, comfort, convenience, safety, welfare and the prosperity of the people of the city. For the purpose of controlling and reducing such noises, it is hereby declared to be the policy of the city to set the unreasonable and prohibited noise standards and decibel levels contained herein and to consolidate [*4]certain of its noise control legislation into this code. The necessity for legislation by enactment of the provisions of this chapter is hereby declared as matter of legislative determination.

Title 24, Chapter 2, of the Administrative Code of the City of New York specifies permitted sound levels from such varied sources as construction, to utilities, to music, to animals, restricts unreasonable noise at specific places and during specific hours, and details the decibel levels above ambient levels that are prohibited as unreasonable noise (see e.g., New York City Administrative Code  24-218). Unreasonable noise is defined as "any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivities." (New York City Administrative Code § 24-203[62]).

In this case, it appears that the defendant made many complaints concerning invasive noise, that she believed to be unreasonable, emanating from the bar next to her apartment. While the information also alleges that an officer visited the bar on numerous occasions and concluded that the noise was appropriate and not excessive within the bar, there is no allegation that the officer was present at the same time as one or more of the defendant's complaints, or under circumstances similar to the conditions present at the time of one or more of defendant's complaints. Significantly, the officer's subjective opinion of a reasonable noise level within the bar cannot support any conclusion concerning the noise level within defendant's apartment at the time of her complaints. Nor does the information allege that anyone ever informed the defendant that the noise level inside her apartment was reasonable, i.e. would not disturb a person of normal sensitivity, and that her continued pressing of complaints through the 311 system could be prosecuted as false reports under Penal Law  240.50. Accordingly, the Court finds that the information lacks allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant knowingly committed falsely reporting an incident in the third degree. Defendant's motion to dismiss the 268 counts of falsely reporting an incident in the third degree is granted.

Resisting Arrest

Penal Law § 205.30 states: "[a] person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person." The statute requires that the arrest be authorized (People v Alejandro, 70 NY2d 133, 135 [1987]; People v Peacock, 68 NY2d 675, 676 [1986]). Here, the allegations do not give reasonable cause to believe that defendant's arrest was authorized. Since the allegations in the information do not support the falsely reporting an incident in the third degree charges, defendant's arrest was not authorized and the resisting arrest charge must be dismissed.

Aggravated Harassment in the Second Degree

"A person is guilty of aggravated harassment in the second degree when, with the intent to harass, threaten, annoy or alarm, he or she . . . communicates with a person . . . by mail or any other form of written communication in a manner likely to cause annoyance or alarm (Penal Law  240.30[1][a]). In order for a defendant's [*5]communication to be of the type intended to be criminalized by the legislature in enacting Penal Law § 240.30 [1] the communication must, be obscene, a specific and unequivocal threat, or by its very utterance tend to incite an immediate breach of peace. (see People v. Smith, 89 Misc 2d 789 [App Term 2d Dept. 1977]; People v T.V., 2003 NY Slip Op 51050U [Crim Ct, New York County June 24, 2003]). Furthermore, Penal Law § 240.30 [1] criminalizes communications directed at an unwilling recipient under circumstances wherein " substantial privacy interests were violated in an essentially intolerable manner.'" (see People v. Smith, supra, at 791, quoting Cohen v. California, 403 U.S. 15, 21 [1971]). However, without threats of violence or harm, even "rude or angry words are not enough to constitute aggravated harassment." (see People v. Webers, 2005 NY Slip Op 51673(U) App Term 1st Dept. [2005]; quoting People v. Livio, 187 Misc 2d 302, 307 [2000]). The allegation of the single incident of mailing a Department of Buildings violation notice to the police officer does not demonstrate reasonable cause to believe that the defendant committed aggravated harassment in the second degree (see People v. Silverberg, 1 Misc 3d 62, 771 N.Y.S.2d 274 [1st Dept 2003] [evidence was insufficient to support defendant's conviction of aggravated harassment in the second-degree in violation of Penal Law § 240.30[1] when based on a single telephone call]). Defendant's motion to dismiss the count of aggravated harassment in the second degree is granted.

Because the information is dismissed in its entirety, the remainder of the defendant's motions need not be decided.

The People have leave to refile a timely, facially sufficient information (see People v. Nuccio, 78 NY2d 102 [1991]).

This case is next on the calendar in Part A on February 1, 2007.

This opinion constitutes the decision and order of the Court.

Dated:New York, New York

January 31, 2007

________________________

ANTHONY J. FERRARA

Judge of the Criminal Court