The defendant is charged with three counts of Aggravated Harassment in the Second Degree (PL § 240.30[1][a] [two counts]; PL § 240.30[2] [one count]) and two counts of Harassment in the Second Degree (PL § 240.26[1]).

Defendant, in an omnibus motion, seeks: (1) Dismissal of the Information for Facial Insufficiency, (2) an Order Precluding Statement and Identification Testimony, (3) a Sandoval Hearing, and (4) Reservation of Rights.

The defendant's omnibus motion is decided as follows:

The defendant moves to dismiss the information for facial insufficiency pursuant to Criminal Procedure Law §§ 170.30 (1)(a) and 170.35. For the reasons stated herein, the defendant's motion is denied with respect to the three counts of Aggravated Harassment in the Second Degree and is granted with respect to the two counts of Harassment in the Second Degree.

Section 100.40(1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried [*2]twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v Casey, 95 NY2d 354, 360 (2000); People v Kalin, 12 NY3d 225 (2009). While this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial," see People v Henderson, 92 NY2d 677, 680 (1999), the failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action. People v Alejandro, 70 NY2d 133, 137 (1987); Kalin, 12 NY3d 225.

When analyzing the factual allegations of an information, and whether or not those allegations provide reasonable cause to believe the defendant committed the charged offense, it is important to refer to the definition of reasonable cause that the Legislature has provided us in the Criminal Procedure Law:

Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it . . . .

When evaluating these factual allegations in light of the statutory definition of Aggravated Harassment in the Second Degree, it is important to look at the exact language of the subdivisions charged in this particular case. First, a person is guilty of Aggravated Harassment in the Second Degree pursuant to PL § 240.30(1)(a) when, "with intent to harass, annoy, threaten or alarm another person he or she . . . communicates with a person, anonymously or otherwise, by telephone . . . or [*3]by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm." Second, a person can also be found guilty of this offense pursuant to PL§ 240.30(2) when, "with intent to harass, annoy, threaten or alarm another person he or she . . . makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication." Thus, while both of these subdivisions encompass both texts and telephone calls as types of communication that may be unlawful, it becomes apparent that the theories under which a text or phone call would fit into either of these subdivisions are numerous because the defendant could be alleged to have either an intent to harass, an intent to annoy, an intent to threaten or an intent to alarm at the time that he is alleged to have delivered the communication in question. Furthermore, such communications may be delivered in a manner likely to cause annoyance, in a manner likely to cause alarm, or with no legitimate purpose. The potential for so many possible factual variations of both the mens rea of the defendant and the manner in which the communication was delivered creates an area of the law in which it is difficult to develop bright line rules of pleading that would apply to all possible allegation scenarios.

Additionally, it is important to keep in mind the general premise underlying the Aggravated Harassment in the Second Degree statute. While it is frequently mis-characterized in motion papers as curtailing a defendant's right to free speech, the Court of Appeals has informed us that "permitting communications to be foisted upon an unwilling recipient in a private place would be tantamount to licensing a form of trespass, and thus a mailer's right to communicate must stop at the mailbox of an unreceptive addressee' (Rowan v Post Off Dept, 397 US at 736-737, 90 S Ct at 1490 ) . . . . [A]n individual has a substantial privacy interest in his or her telephone: in the context of a telephone harassment statute, the device is easily conceptualized as the functional equivalent of the mailbox. Thus, to the extent (the Aggravated Harassment in the Second Degree statute) limits a caller's right to free speech, it permissibly subordinates that right to the recipient's right to be free of unwanted telephone calls." People v Shack, 86 NY2d 529, 536 (1995).

With regard to the three counts of Aggravated Harassment in the Second Degree in this case, the defendant claims that the allegations contained in the accusatory instrument are insufficient because they (a) do not establish that the defendant, in placing the telephone call or sending the text message, either intended to harass, annoy, threaten or alarm complainant when those communications were sent, (b) do not establish that either communication was sent in a manner likely to cause annoyance or alarm, and (c) do not establish that the telephone call to the complainant lacked a legitimate purpose. This Court disagrees.

First, it is clear based upon these allegations that, if true, the defendant sent these communications with the requisite intent to either harass, annoy, threaten or alarm. It is true, as the defendant argues, that there is no interpretation of these allegations that would support that the defendant acted with an intent to threaten the complainant. Similarly, it does not appear that these facts would support a theory that the defendant acted with an intent to alarm. However, these communications do set forth sufficient facts that the defendant was operating with either an intent to harass or an intent to annoy. In discussing this issue, it is important to keep in mind the plain meaning of the words "harass" and "annoy." According to the Random House Collegiate Dictionary, Revised Edition (1988), to "harass" means "to disturb persistently; torment; pester; persecute," and to "annoy" means "to disturb (a person) in a way that displeases, troubles, or slightly irritates." Also, when analyzing allegations of a defendant's intent, it is important to keep in mind that "intent can [*4] . . . be inferred from the defendant's conduct and the surrounding circumstances.'" People v Bracey, 41 NY2d 296, 301 (1977). When a defendant is alleged to have sent a text message that includes "you are such a dirty cunt", it is a reasonable inference at the pleading stage that such a message was sent with either an intent to harass or an intent to annoy and that it was sent in a manner likely to cause annoyance. Similarly, when a defendant is alleged to have left a telephone message that includes "he can have my sloppies, fucking cunt whore", it is also reasonable to infer at the pleading stage that such a message was sent with either an intent to harass or an intent to annoy and that it was sent in a manner likely to cause annoyance.

Second, the factual allegations also tend to support the charge that the telephone message was sent "with no purpose of legitimate communication." The Court of Appeals had held that "Penal Law § 240.30(2) imposes criminal liability for making a single telephone call, if placed with the requisite intent and lack of legitimate purpose." People v Shack, 86 NY2d 529, 541 (1995); see also People v Liberato 180 Misc 2d 199 (Crim Ct, New York County 1999). No legitimate purpose' has been deemed to mean "the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten." People v Stuart 100 NY2d 412 (2003). Again, considering the specific content of the phone message allegedly left by the defendant (i.e. "he can have my sloppies, fucking cunt whore"), this Court finds it reasonable to infer, for pleading purposes, that the defendant's communication with the complainant in this case lacked a legitimate purpose.

Since this court finds that the allegations are sufficient to support each element of Aggravated Harassment in the Second Degree and to provide reasonable cause to believe that the defendant had committed that offense, the defendant's motion to dismiss the three counts of Aggravated Harassment in the Second Degree for facial insufficiency is denied. See People v Jones, 10 Misc 3d 134(A), 2005 NY Slip Op 52096(U), *1-*2 (App Term, 2d & 11th Jud Dists 2005).

Harassment in the Second Degree [PL § 240.26(1)]

However, this court does agree with the defendant that the factual allegations listed in the accusatory instrument would not permit a reasonable trier of fact to convict the defendant of Harassment in the Second Degree. Although the defendant's statements may be offensive and alarming to the complainant, there are no allegations that he had threatened the complainant with physical contact, which is a necessary element of Harassment in the Second Degree. Accordingly, the branch of the defendant's motion that is to dismiss the two counts of Harassment in the Second Degree for facial insufficiency is granted and those counts are dismissed.

The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3).

The foregoing constitutes the opinion, decision and order of the Court.

Dated:January 20, 2010

New York, New York

ENTER:

______________________________Michael J. Yavinsky, J.C.C.