Defendant appeals from a judgement of conviction and sentence entered in Rochester City Court (Johnson, J.) convicting him, after jury trial, of aggravated harassment in the second degree.

The defendant initially sought appeal (AP #07/0081) from a decision and order by Judge Johnson argued on September 4, 2007, and entered on November 2, 2007 in Rochester City [*2]Court which denied the defendant's motion to dismiss the information as defective, and denied the defendant's motion to have Judge Johnson recuse herself from the case. Following those decisions the court set the matter down for trial. Prior to trial, the defendant filed an appeal as to the aforementioned rulings.

Insofar as the defendant's initial appeal was not from a final judgement or sentence, nor an appeal from an order denying a motion pursuant to Criminal Procedure Law §§ 440.10 or 440.20, the defendant had no appeal as a matter of right at the time of the initial filing. See CPL §§ 450.10 and 450.15.

Accordingly, the appeal filed under appeal number AP# 07/0081 is hereby dismissed.

However, subsequent to his conviction after trial, the defendant filed appeals AP #07/0081A and #07/0081B. In its review, this Court will consider the merits of these appeals, as well as arguments set forth in the appeal attempted within AP# 07/0081.

The defendant was convicted on November 15, 2007, after jury trial, of aggravated harassment in the second degree in violation of section 240.30, subd. 1 of the Penal Law of the State of New York. The defendant was charged by information which, in pertinent part, alleged:

That the defendant did send your complainant a letter to her private address in which he wrote that in sum and substance, your complainant better stay out of his business or he would do something that even the courts could not reverse. Your complainant took this as a threat and became alarmed, all contrary to the provisions of the statute in such case made and provided.

Prior to trial the defendant, who represented himself, submitted arguments to the court seeking, among other things, to dismiss the information as defective. The defendant maintained that nothing contained in the information rose to the level of "criminal" allegations, and that the complainant never alleged that the defendant intended to harass her. Furthermore, the defendant argued that he was the victim of selective prosecution because of the complainant's status within the court system.

Both from the bench as well as by written decision, the trial court denied the defendant's motion to dismiss the accusatory instrument, finding that "the accusatory instrument is signed by the complainant and contains sufficient factual allegations to withstand the motion to dismiss."

In his filing of March 10, 2008 ("Supplemental Notice of Appeal") the defendant appeals from the Rochester City Court conviction and sentence on the grounds that the accusatory instrument was defective and did not make out a prima facie allegation on its face; that the Rochester City Court lacked jurisdiction at the inception of the prosecution; and that the Rochester City Court "violated numerous constitutional rights." In essence, the defendant maintains that the trial court erred in its decision on the pre-trial motions, which he contends [*3]should have resulted in dismissal of the criminal charge.

The People argue that the instant appeal should be dismissed due to the defendant's failure to comply with the procedures set forth in C.P.L. § 460.70 and 22 N.Y.C.R.R. § 200.33 to perfect a criminal appeal. Specifically, according to the People, the defendant has failed to file a transcript of all the proceedings (save for the September 4, 2007 appearance), as well as file a brief of his arguments in the form required by statute.

The People are correct that the form of this appeal taken by the defendant has failed to comply in any substantial manner with the statutory requirements. Perfecting an appeal requires the settling of the transcript, compiling and filing the record on appeal, and preparation and filing of the appellant's brief. C.P.L. §460.70; See also, Preiser, Practice Commentaries, C.P.L. § 460.70 (McKinney's 2005)("[T]he record must be settled so as to provide the appellate court with an accurate version of the proceedings below"). Here, there has been no settlement of the record; only a single transcript of one court appearance has been submitted; and the defendant's "brief" lacks any of the form or substance mandated by the rules governing criminal appeals. McKinney's 2008 New York Rules of Court § 1004.4 (f) ("Briefs").

Based on the defendant's failure to comply with rules pertaining to the perfecting of appeals, this Court is fully aware that it may, upon its own motion or motion of the People, dismiss the appeal. McKinney's 2008 New York Rules of Court § 200.33 ("Perfection of Criminal Appeals").

In all candor, this Court finds the defendant's pleadings and filings (both in regards to these appeals as well as to materials submitted to the trial court) to be confusing, disjointed and, at times, incoherent. Their content oftentimes deal with matters and issues extraneous to the legal proceedings at hand.

However, this Court finds that it would not serve the ends of justice to dismiss the appeal on purely procedural grounds. The Court recognizes that a strong public policy interest exists in deciding cases on their merits. Thus, despite the deficiencies in the defendant's pleadings, the Court will address the substance of the defendant's primary arguments.

As previously detailed, the misdemeanor information alleges that the defendant sent a letter to the private residence of the complainant ^[FN1], which contained the verbiage that the complainant "better stay out of his business or he would do something that even the courts could not reverse." The information further stated that the complainant took these statements to be a threat, causing her alarm. The defendant's pleadings, arguments, and submissions on this appeal [*4]have consistently addressed his belief that the information filed in Rochester City Court, charging him with aggravated harassment in the second degree in violation of Penal Law §240.30 (1)(a), is defective on its face by not setting forth sufficient factual allegations to make out prima facie proof of aggravated harassment. The defendant contends that the content of the letter was non-threatening, not intended to harass, threaten or annoy, and, alternatively, constitutionally protected speech.

The Court must first determine whether the information alleges conduct which falls within a category of behavior a state may constitutionally criminalize or whether, on the face of the pleading, the actions attributed to the defendant constitute protected free speech, and whether the complaint sets forth allegations that establish, if true, every element of the offense charged and the defendant's commission offense. People v. Bonitto, 4 Misc 3d 386, 388 (NY City Crim. Ct., 2004).

Penal Law § 240.30(1)(a) provides: "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she . . . [e]ither . . . 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."

An information is sufficient on its face if it contains non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe the defendant committed every element of the offense charged. People v. Yablov, 183 Misc 2d 880, 882 (NY City Crim. Ct., 2000). It has been held that if an accusatory instrument alleges that a defendant acted with the requisite intent to harass, annoy or alarm, that allegation is sufficient for pleading purposes. People v. Tiffany, 186 Misc 2d 917, 921 (NY City Crim. Ct., 2001), citing People v Sassower, N.Y.L.J., Nov. 6, 1998, at 23, col 4 (App Term, 2d Dept.). Intent to harass, annoy or alarm may be inferred from the surrounding circumstances. People v. Bracey, 41 NY2d 296, 301 (1977).

Contrary to the defendant's position the content of the communication as contained in the information does not constitute protected speech. Speech is not protected where the offending conduct involves the invasion of privacy of an individual, including public employees. Moreover, Penal Law sec. 240.30 penalizes conduct, and not speech or expression. See generally, People v. Goldstein, 196 Misc 2d 741, 746-747 (Sup. Ct. App. Term, 2003). The aggravated harassment statute is designed to protect the privacy of individuals, and deter those that would invade that privacy. See generally, People v. Price, 178 Misc 2d 778 (NY City Crim. Ct., 1998); and People v. Miguez, 147 Misc 2d 482 (N.Y.City Crim. Ct., 1990).

Here, upon review of the information, it can be concluded that by causing this letter to be sent to the complainant's private address, and containing the implied threat, this defendant engaged in conduct which resulted in the complainant's "substantial privacy interests . . . being [*5]invaded in an essentially intolerable manner." People v. Dupont, 107 AD2d 247, 252 (First Dept., 1985), quoting Cohen v. California, 403 U.S. 15, 21 (1971).

Turning then to the contents of the communication as contained in the information, this Court finds that the facial sufficiency of the information for aggravated harassment was clearly established by the circumstances of the communication (a letter delivered to the personal residence of the court employee) and the contents of the letter (telling the complainant to "stay out of his business or he would do something that even the courts could not reverse.") Under the circumstances, an ordinary reasonable recipient of that communication, in that context, would interpret the language to be a true threat. People v. Hernandez, 7 Misc 3d 857, 861 (NY City Crim Ct., 2005). The question whether the defendant's alleged statement was reasonably perceived by this complainant to be a true threat of harm is a question of fact to be decided by the jury. Hernandez, supra at 861.

Moreover, our courts have consistently held that a charge of aggravated harassment can stand even if grounded in a single communication, which apparently occurred in this case. People v. Wood, 260 AD2d 102 110 (Fourth Dept., 1999).

Therefore, for the reasons set forth above, it cannot be said that the trial court erred in denying the defendant's motion to dismiss the aggravated harassment information.

In similar fashion, this Court has reviewed the other arguments set forth relative to the trial court's denial of his motion for recusal by the judge, and finds them to be without merit.

Insofar as the defendant has failed to perfect his appeal in the manner discussed above, it is the decision and order of this Court that any present or future arguments pertaining to the conduct of the jury trial or the sufficiency of evidence for his conviction on the count of aggravated harassment in the second degree is hereby deemed waived and not appealable.

Accordingly, relative to appeal numbers AP 07/0081A and 07/0081B, the judgement of conviction for aggravated harassment is affirmed.

As noted above, appeal number AP 07/0081 is dismissed.

This constitutes the Decision and Order of this Court

Dated:May 29, 2008 [*6]

Rochester, New York

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HON. ALEX R. RENZI

Monroe County Court Judge