The defendant is charged with two counts of Aggravated Harassment in the Second Degree under Penal Law § 240.30 (1) (a). The defendant has moved to dismiss the proceeding pursuant to Criminal Procedure Law (CPL) §170.30 (1) (a); §170.35 (1) (a), (c); and §100.40 (1) on facial insufficiency and constitutional grounds, in addition to other relief. A response was filed by the People. For the foregoing reasons, the defendant's motion to dismiss is granted.

To be sufficient on its face, an information, together with any supporting depositions, must contain evidence of an evidentiary character which provides reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged (People v. McNamara, 78 NY2d 626, 629 [1991], citing CPL §100.40 (1) (b), (c); People v. Alejandro, 70 NY2d 133, 136-137 [1987];People v. Casey, 95 NY2d 354, 360 [2000]). The allegations must give the defendant sufficient notice to prepare [*2]a defense and prevent him from being tried twice for the same offense (People v Casey, supra at 360). Further, conclusory allegations alone are insufficient (People v. Dumas, 68 NY2d 729 [1986]). The proceeding is fatally defective if the accusatory instrument fails to meet these requirements (People v. Casey, supra ).

New York Penal Law § 240.30 (1) (a) provides that a person is guilty of Aggravated Harassment in the Second Degree when, with the intent to harass, threaten, annoy or alarm, he or she either communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.

The pertinent part of the accusatory instrument upon which the defendant is arraigned

reads:

Deponent states that deponent is informed by Ranody Cruz, of an address known to the District Attorney's Office, that on May 20th, 2007, at approximately 1:59pm (i) the defendant called the informant on the informant's cellular phone and (ii) the defendant did moan and groan in a manner simulating noises consistent with a sexual act.

Deponent is further informed by informant that on May 21st, 2007, at approximately 12:39am (i) the defendant called the informant on the informant's cellular phone and (ii) the defendant did moan and groan in a manner simulating noises consistent with a sexual act.

Deponent is further informed by informant that informant examined her cellular telephone bill for the dates and times listed above and recognized the incoming phone number to be that of the defendant.

A corroborating deposition from the complainant is included in the official court file.

The defense argues in its motion that dismissal is warranted because the allegations do not establish that the defendant communicated with the complainant and the requisite intent for the charge and asserts that the right to "free speech" is being violated. The defendant's motion also asserts that dismissal is required because the allegations do not state that the complainant answered the telephone, heard the noises, and was annoyed or alarmed. In response, the People assert that the complaint is sufficient because prohibited communication is not limited to threats and cite cases in support.

The allegations must establish that the defendant communicated with the complainant

(Penal Law § 240.30 (1) (a)). The allegations concerning this element are that the defendant called the complainant on her cellular phone on two occasions, that in each instance he moaned and groaned in a manner simulating a sexual act, and that the complainant recognized his number on her telephone bill for the specified times. These allegations do not sufficiently establish that it was the defendant who made the calls. The allegations do not establish that the defendant made the calls since there are no allegations that the complainant recognized the defendant's voice or that the defendant identified himself in any way (see e.g, People v. Califano, 2006 NY Slip Op. 51504U [Crim. Ct., NY Co. 2006] where calls were traced to defendant's home telephone and the complainant identified his voice as she listened on a second phone when [*3]the police called his number). The allegations state that the complainant recognized the number to be that of the defendant's. However, this allegation does not sufficiently establish that the defendant was responsible for the use of the phone, that it was his account or a home phone to establish circumstantially that the defendant made the calls (see People v. Santos, 38 NY2d 173 [1975], conviction for aggravated harassment reversed in part because no claim was made that the place where the calls were made from was not open to the public, only one call was traced to the defendant's place of employment, and although the calls opened with several meows they were not substantiated as obscene).

More importantly, the allegation that the complainant recognized the defendant's phone number, without specificity, fails to provide the defendant with reasonable notice of that which he must defend against (see People v. Casey, supra , holding in part that the factual allegations must give an accused notice sufficient to prepare a defense and must be adequately detailed to prevent the defendant from being tried twice for the same offense). The allegations do not give the defendant notice of which phone line is at issue. The vagueness of the allegations does not permit the defendant to prepare a defense since he is not advised of the phone line he allegedly made the call from. Without such perfunctory allegations the defendant cannot begin to collect records or other evidence to be able to contradict the allegations. The particular phone line is not identified either as it is ordinarily as home or cell, or by the number itself. In this case, the defendant does not adequately know what he is defending against. This is a circumstantial case that does not provide adequate notice because of a lack of specificity. Without the required specificity and notice the tenuous character of this case makes it less likely than not that the crime was committed.

Additional facts are required in this case to reasonably conclude that the defendant made the communication. The allegations do not provide a reason to conclude that it was the defendant who communicated with the complainant and not someone else. The only supporting document included is a deposition from the complainant. That supporting deposition does not provide any additional evidence. All that is alleged is that the complainant "recognized" the defendant's number on her phone bill for the times she remembers to have received the calls. However, this "recognition" is not sufficient where it must be shown that the defendant communicated with the complainant.

Further, a conclusory allegation that the defendant called the complainant is not sufficient on its face. Conclusory allegations without more are not enough (People v. Dumas, supra ). The allegations must be supported by facts of an evidentiary nature to satisfy every element of the charge (see, CPL § 100.40 (c); see also, People v. Alejandro, supra ). There is no allegation that the calls were traced to the defendant's home phone or that the defendant was contacted by the police at the number allegedly "recognized" by the complainant to establish notice. There appears to have been no modicum of investigation made in this case to establish this necessary element. A factual basis to conclude that the defendant communicated with the complainant is not provided. Therefore, this element of the charge is not sufficiently alleged.

The defense raises other arguments in support of dismissal. However, these additional arguments are without merit. Specifically, the statute is constitutional as applied given that the defendant's speech does not fall under a protected category (see People v. Shack, 86 NY2d 529 [1995]; see also, People v. Smith, 89 Misc 2d 789 [1977], cert den 434 U.S. 920 [1977] holding [*4]that the statute is constitutional). The content of the communication is sufficient in this case. The moans and groans are described as simulating a sexual act and appear sufficiently obscene and offensive for a prima facie showing of the charge (see also, People v. Califano, 2006 NY Slip Op. 51504U [Crim. Ct., NY Co. 2006], where the defendant called the complainant's workplace seven times and used "strong sexual language"). Concomitantly, this would establish an intent to harass, alarm or annoy. A call is also alleged to have been received at 12:39 a.m. providing a basis to conclude that substantial privacy interests are at issue (People v. Smith, supra , at 971 [App. Tm., 2nd Dept. 1977], cert. denied, 434 U.S. 920 [1977]; People v. Hernandez, 7 Misc 3d 857 [Crim. Ct., NY Co. 2005], all holding in part that Penal Law �240.30 (1) addresses the invasion of substantial privacy interest; but see, People v. Portnoy, 158 Misc 2d 60 [Crim. Ct., NY Co. 2007]). Therefore, the remaining issues raised by the defense are not persuasive to this court and do not form the basis of this dismissal.

In this case, the allegations do not sufficiently establish that it was the defendant who communicated with the complainant. The absence of one element necessitates dismissal of the proceeding (CPL � 100.40 (c); see also, People v. Alejandro, supra ). Given the absence of one element, it cannot be said that the defendant committed a criminal act. The allegations also do not give the accused notice sufficient to prepare a defense and are not adequately detailed to prevent the defendant from being tried twice for the same offense (see People v. Casey, supra ). Consequently, the accusatory instrument is insufficient on its face and must be dismissed.

Accordingly, the defendant's motion to dismiss the charge of Aggravated Harassment on facial insufficiency grounds is granted.

The People are granted leave to file a facially sufficient instrument with additional facts to cure the defect identified in this case (People v. Nuccio, 78 NY2d 102 [1991]).

The Court directs that sealing is stayed for thirty (30) days from the date of this decision.

This constitutes the decision, opinion and order of the Court.

Dated:New York, New YorkJanuary 23, 2008

______________________________

The Honorable ShawnDya L. SimpsonJudge of the Criminal Court