By "Notice of Motion" dated February 5, 2008, defendant moves, pursuant to CPL §§ 170.30, 100.15, 100.40 and 170.35(1)(a,b), to dismiss the accusatory instrument for facial insufficiency, and pursuant to the First and Fourteenth Amendments of the United States Constitution and Article I §§ 8 and 11 of the New York State Constitution, to dismiss the instrument on the ground that defendant's speech, upon which he is criminally accused, is constitutionally protected. The People have responded in opposition by "Affirmation in Opposition to Defendant's Motion" filed on March 11, 2008. Upon consideration of the submissions and the court file, the [*2]Court denies defendant's motion to dismiss.^[FN1]

Defendant is charged with one count of aggravated harassment in the second degree (PL 240.30[1][a]). This charge stems from allegations by the deponent, Assistant District Attorney Michael Babcock, that the defendant committed the charged crime with the intent to cause annoyance or alarm in that he communicated in the following manner with the complainant, Hector Ruiz. As stated in the accusatory instrument according to information supplied by Ruiz, on or about October 8, 2007 at approximately 8:57 PM at 9108 3rd Avenue in Kings County, the defendant,

"[d]id call the informant on informant's cell phone and did state to the informant, in sum and substance, I'll tear you up and rob you, and that the defendant did send text messages to the informant's cell phone, and that said messages did state, in sum and substance, I'll tear you up and rob you.... [T]he above described actions caused informant to fear physical injury and to become alarmed and annoyed."

The Court finds (a) that the accusatory instrument and the supporting deposition allege sufficient facts to withstand defendant's motion to dismiss for facial insufficiency and (b) that defendant's speech is not protected as "free speech" by the Federal and New York State Constitutions.

Pursuant to CPL 170.30(1)(a), the defense may move to dismiss an information on the ground that it is defective, within the meaning of CPL 170.35. CPL 170.35(1)(a) provides that an information is defective when it is not sufficient on its face pursuant to the requirements of CPL 100.40. According to CPL 100.40(1), an information, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15; and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory instrument; and

(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

CPL 100.15(3) provides, in pertinent part, that: [*3]

"The factual part of the instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" and "[e]very element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions."

Under Penal Law Section 240.30(1), entitled "Aggravated harassment in the second degree", a person is guilty of that crime when, "with intent to harass, annoy, threaten or alarm another person, he or she:

(a)[c]ommunicates 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;".

For a complaint to be facially sufficient, the allegations must provide reasonable cause to believe the defendant committed the offenses charged and non-hearsay factual allegations must establish a prima facie case that the defendant is guilty (People v Allen, 92 NY2d 378 [1998]). Furthermore, the prima facie requirement is not the same as the burden of proof required at trial (People v Henderson, 92 NY2d 677 [1999]) and the factual allegations in an information should be given a fair and not overly restrictive or technical reading (People v Casey, 95 NY2d 354 [2000]).

Here, in contrast to the cases cited by the defense, the accusatory instrument clearly alleges behavior which a trier of fact could reasonably conclude to constitute aggravated harassment in the second degree. The defendant is alleged to have communicated to the complainant by telephone. The complainant allegedly recognized the defendant's voice. The threat to "tear up" the complainant literally bespeaks violent behavior. The argument that the threatened action was meant figuratively or was simply a crude outburst is without merit since it was accompanied by a clear threat to commit against the complainant what would amount to a felony, namely, a forcible taking of property. Furthermore, the threat was underscored by the sending to the complainant of several text-messages, to the same effect and at or about the same time as the oral communication by telephone. The repetition of the threats, within a short time frame, enhance their gravity and the resulting impact upon the complainant. Lastly, the Court finds without merit the defense argument that the allegations do not support the conclusion that the defendant originated the text-messages. In view of the proximity in time and the identical nature of the text-messages and the oral threat, it would be reasonable for a trier of fact to conclude, prima facie, that all the threats originated from the defendant. Given these sworn, factual allegations, and a not overly restrictive or technical reading (People v Casey, supra, 95 NY2d 354), the Court finds the allegations would establish a prima facie case that the defendant is guilty of the crime charged (People v Allen, supra, 92 NY2d 378; People v Henderson, supra, 92 NY2d 677).

The Court also finds that the defendant's alleged communications do not fall within the ambit of constitutionally protected "free speech" and that counsel's argument, that defendant's speech may not be forbidden or penalized because it did not present a clear and present danger of serious, substantial harm, is without merit.

The First Amendment of the Constitution of the United States of America, as implemented through the Fourteenth Amendment, addresses the principle of "Religious and Political Freedom". It provides that,

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Similarly, Article I Section 8 of the Constitution of the State of New York, as implemented through the "equal protection" clause of Section 11, provides as follows:

"§ 8. [Freedom of speech and press; criminal prosecutions for libel]

Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact."

Terminiello v Chicago, 337 US 1 (1949), sets forth the type of speech which is protected, namely, speech conveying ideas, beliefs and points of view. At page 4, Justice Douglas elaborated on this principle in the following language:

"The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in DeJonge v. Oregon, 299 U.S. 353, 365, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.

Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262; Craig v. Harney, 331 U.S. 367, 373. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."

It is apparent from these references that defendant's appeal for constitutional protection for his alleged threats is wholly without merit. The threat to "tear apart" the complainant and to "rob" him have absolutely nothing to do with the expression of ideas, beliefs or points of view which serve to promote our civil and political institutions. To the contrary, they are of the type which our Legislature has deemed to be worthy of constraint and censure. Defendant's focus on the danger or lack thereof posed by defendant's alleged statements is misplaced. The question of potential harm from particular speech must be weighed in balance against the political and social benefits to be derived from protecting that speech. The speech in question here has no intrinsic social or political value and its exercise advances none of the objectives of a free and vigorous society. Therefore, any arguments as to the potential for harm arising from the statements are wholly inapplicable. If true, as alleged, defendant's speech does not fall within the penumbra of constitutionally protected speech. Accordingly, dismissal on constitutional grounds must also be denied.

For the reasons noted, the Court finds the accusatory instrument is facially sufficient and defendant's right to free speech has not been violated. Defendant's motion to dismiss the accusatory instrument is therefore denied. Defendant's right to make further motions is subject to compliance with the requirements of CPL 255.20. The foregoing constitutes the Court's opinion, decision and order. The clerk shall provide a copy hereof to counsel.

ALVIN YEARWOOD

CRIMINAL COURT JUDGE