[*1]
People v Digianni
2010 NY Slip Op 50683(U) [27 Misc 3d 1211(A)]
Decided on March 11, 2010
Just Ct Of Town Of New Castle, Westchester County
Zuckerman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 11, 2010
Just Ct of Town of New Castle, Westchester County


People of the State of New York, Plaintiff,

against

Vito A. Digianni, Defendant.




09080001



The People were represented by District Attorney Janet M. DiFiore

(Assistant District Attorney Michael Ashraf)

The Defendant was represented by Fabriani & Novenstern (Keith M. Brown,

Esq.)

David S. Zuckerman, J.



Defendant is charged with one count of Aggravated Harassment in the Second Degree under Penal Law (hereinafter "PL") §240.30(1). He now moves for an Order granting the following relief:

1."Summary Judgment and dismissing the Misdemeanor Complaint filed against Defendant in this matter"[FN1] and

2."Vacating the Temporary Order of Protection in favor of [Complainant] and against Defendant."

SUMMARY JUDGMENT


Pursuant to Section 3212 of the Civil Practice Law and Rules (hereinafter "CPLR"), either party to a civil action may move for Summary Judgment. See generally, Siegel, New York Practice, §278 at 407 (West Pub., 2nd Ed.). To prevail, the moving party must establish that there is no substantial issue of fact. Id.; Zuckerman v. City of New York, 49 NY2d 577 (1980).

Generally speaking, pre-trial motions to dismiss in a criminal action are governed by Articles 170 and 210 (for felonies) of the Criminal Procedure Law (hereinafter "CPL"). They provide for

dismissal of a criminal action on various grounds, none of which include summary judgment. In [*2]fact, the CPL is silent regarding Summary Judgment relief in a criminal action.

Notwithstanding the absence of authority for the relief sought within the Criminal Procedure Law, some courts have suggested that the provisions of the CPLR are applicable to criminal cases. Others have held that they are not.

The Appellate Division, First Department, has expressly ruled that "the CPLR has no application to criminal actions and proceedings." People v. Silva, 122 AD2d 750 (1st Dept. 1986). Thirteen years later, the court cited Silva in holding that "the time set forth in CPLR §2214(b) for answering a motion was not applicable" in criminal cases. People v. Holden, 260 AD2d 233, 234 (1st Dept. 1999), lv. den. 93 NY2d 1003 (1999). One year later, the First Department reasserted its earlier holdings by stating "we find Defendant's arguments to be unavailing with regard to the applicability of CPLR provisions to this criminal proceeding." People v. Crisp, 268 AD2d 247 (1st Dept. 2000).

Often, courts rejecting application of the CPLR in criminal cases cite to the broad language of two statutory provisions. In People v. Kyriazas, 2002 WL 30972172 (West. Sup. Ct. 2002), the court opined that"[i]t is equally self-evident that the CPLR governs in civil proceedings (see CPLR §101) and that the CPL governs in criminal actions (see CPL §1.10)". Similar reasoning was applied in People v. Fevziekinici, 191 Misc 2d 510 (Kgs. Cty. Sup. Ct. 2002). There, the court stated that "CPLR §101 makes the CPLR applicable to civil' cases. Thus, by statute, it is inapplicable to criminal cases." Id., at 513, FN4.

In two seemingly fact specific decisions, the Court of Appeals has agreed. In People v. Coaye, 68 NY2d 857 (1986), the Court refused to apply the specific interpretive language found in the CPLR to a criminal appeal. Similarly in People v. Knobel, 94 NY2d 226 (1999), the Court did not adopt the interpretive language of CPLR §207 in an appeal centered on CPL §30.10(4)(a)(i). The Court did not, however, issue a blanket ruling, similar to the language employed by the First Department, precluding application of all CPLR provisions in criminal cases. But see People ex rel. Hirschberg v. Orange County Court, 271 NY 151(1936)(holding the Code of Criminal Procedure, predecessor to the CPL and PL, to be the only source of guidance for criminal actions); People v. Hovey, 92 NY 554 (1883).

On the other hand, there are a number of trial court decisions which have applied provisions of the CPLR to criminal actions. For example, in People v. Duquette, 152 Misc 2d 239 (Lawrence Co. Ct. 1991), the court applied CPLR §2103 to determine the effective time for service of an order. That court reasoned that "[w]hen the Criminal Procedure Law does not provide a standard by which to measure compliance with a rule, it is reasonable to refer to the CPLR." Id., at 240. Applying similar reasoning, in People v. Fulton, 162 Misc 2d 360 (Monroe Co. Ct. 1994), the court rejected the defendant's CPL §190.50 notice because it did not comport with the specifically enumerated service provisions of CPLR §2103. The court held that "[e]ven in cases where the CPL does not expressly incorporate the civil rules, criminal courts have not been reluctant to turn to the CPLR for guidance where, as here, the CPL is silent on this issue." Id., at 363, FN3. [*3]

Applying the CPLR in a different context, in People v. Davis, 169 Misc 2d 977 (West. Co. Ct. 1996), the court permitted the Defendant discovery measures well beyond those provided by the CPL. In explaining its reasoning, the court wrote:
"There are no provisions in the Criminal Procedure Law concerning the discovery - as opposed to the subpoena of a witness or the production for use at trial of evidence in the possession of a subpoenaed person - of items or information from a person who, or an entity which, is not a party to the action. Thus, those provisions of the Civil Practice Law and Rules which are concerned with such process may be applied in a criminal action."


Id., at 982, FN 4.

Likewise, in People v. Radtke, 153 Misc 2d 554 (Qns. Sup. Ct. 1992), the court applied the provisions of CPLR §3101 to subpoena practice in a criminal case. Citing CPL §60.10, the court held that "the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings."

While the Second Department has not been definitively heard on this issue, the Appellate Term has. In People v. Manupelli, 22 Misc 3d 67 (App. Trm. 9th & 10th Dists. 2008), the court held that it is improper to grant a defendant's motion, pursuant to CPLR §3211(a)(7) in a criminal case. The court went on to state:
"The authority of a criminal court to dismiss an information pursuant to a pretrial motion (see CPL 170.30) does not include a motion for accelerated judgment available to civil court litigants (see CPLR 3211, 3212), and, in any event, the court had no authority to dismiss an accusatory instrument on the ground that, in its view, the People could not produce sufficient evidence to prevail at trial."


Id., at 68.

While the decisions cited above may be difficult to reconcile, the holding of Manupelli is most

closely on point. In that case, as well as the instant case, the defendant moved for accelerated judgment. Also, in both cases, the defendant urged the court to dismiss the accusatory instrument on the grounds that the People could not prove the charges therein. The Manupelli court clearly rejected these arguments and ruled that the court below lacked authority to even consider them.

Lastly, in Chapter Two of his treatise "The Practice of Criminal Law under the CPLR," Judge Davidowitz explores the applicability of the CPLR to motion practice in a criminal case. Davidowitz, The Practice of Criminal Law under the CPLR, Ch. 2 at 15, (NYS Bar Assoc. Pubs.). He reviews the CPLR's time limits and notice provisions in the context of motions made in a criminal action. He does not, however, provide any support for using substantive CPLR [*4]motions, such as the summary judgment relief sought herein, in a criminal case. Therefore, consistent with the holding in Manupelli, this court will not entertain Defendant's application for Summary Judgment and that portion of his motion is denied.

It should be noted that, even if the court were to consider the merits of Defendant's Summary Judgment motion, it would not dismiss on those grounds. Defendant's assertions that the submitted documentary evidence contradicts the Complainant's allegations are neither controlling nor accurate. More specifically, Defendant has provided certain telephone records in an attempt to show that he did not call the Complainant from his cell telephone at the time in question. While the records may so demonstrate, they do not categorically establish that Defendant did not or could not make the call from a different telephone. In addition, Defendant's blanket denial of culpability (while conceding that he had a telephone conversation with the Complainant at the time in question) is likewise insufficient to merit summary dismissal.

The court's determination that Summary Judgment is not available to Defendant in the instant action does not end the analysis. A closer reading of Defendant's moving papers reveals that, in urging the court to grant to grant summary judgment, he also asserted that the accusatory instrument is facially insufficient. More specifically, Defendant asserts that allegations of oral threats, on their own, cannot support an accusatory instrument charging Aggravated Harassment in the Second Degree. [FN2]

In their opposing papers, the People have addressed Defendant's argument and urge the court to reject it. Since failure of a misdemeanor accusatory instrument to allege every element of an offense charged is a non-waivable jurisdictional defect which can be raised at any time, the court will address the issue now. People v. Alejandro, 70 NY2d 133 (1987)

Pursuant to C.P.L. §170.35(1), an accusatory instrument is defective when it is "not sufficient on its face pursuant to the requirements of [C.P.L.] section 100.40." C.P.L. §100.40 provides that an Information is facially sufficient when it "substantially conforms to the requirements prescribed in [C.P.L.] section 100.15" and that the factual allegations contained therein "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument." The statute further provides that an Information "is sufficient on its face when . . . [n]on-hearsay allegations of the factual part of the Information ... establish, if true, every element of the offense charged and the defendant's commission thereof." C.P.L. § 100.40(1)(c). See also C.P.L. §100.15(3).

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In People v. Alejandro, supra , the Court of Appeals referred to this mandate as "the prima facie case' requirement." Since a defendant accused of a misdemeanor offense is not afforded the same procedural safeguards present in felony prosecutions, the Court reasoned that such a showing was necessary because an Information is the sole accusatory instrument upon which such defendant can be prosecuted. Id. at 137-139; People v. Case, 42 NY2d 99 (1977).

In analyzing the facial sufficiency of an accusatory instrument, the court is limited to examination

of the facts set forth therein. Fitzpatrick v. Rosenthal, 29 AD3d 24 (4th Dept. 2006)(analyzing the sufficiency of a Felony Complaint). Additionally, only facts of an evidentiary nature may be considered, as conclusory statements are inadequate. See People v. Henderson, 92 NY2d 677 (1999): People v. Dumas, 68 NY2d 729 (1986).

As the People correctly assert, the Accusatory Instrument need not establish proof beyond a reasonable doubt of the offense charged. The applicable statutes and case law make clear that the factual allegations need only establish "reasonable cause to believe" that the defendant committed the crime(s) charged.

As set forth in Section 70.10(2) of 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."

It is with these parameters in mind that we examine whether the instant accusatory instrument is

facially sufficient.

The accusatory instrument contains a single count: Aggravated Harassment in the Second Degree. Aggravated Harassment in the Second Degree, as alleged herein, contains two elements:

1.The Defendant communicated with a person anonymously or otherwise by telephone in a manner likely to cause annoyance or alarm, and

2.The Defendant did so with the intent to harass, annoy, threaten or alarm such person.

An analysis of the facial sufficiency of an accusatory instrument containing this charge must also consider the Constitutional implications inherent in any such prosecution. In People v. Dietz, 75 NY2d 47 (1989), the defendant was charged with an earlier version of the harassment statute (P.L. §240.25) for calling the complainant a "bitch" and threatening to "beat the crap" out of her. The Court held that the statute was unconstitutionally overbroad because it restricted use of "abusive language." The court reasoned that "casual conversation or banter may also be intended to annoy, but may not be criminalized unless the communication presents a clear and present danger of serious [*6]and substantive harm." People v. Gonzalez, NYLJ, 3/10/2004, p.20, col. 3(NYC Crim. Ct. 2004). Applying similar analysis, subdivision one of Aggravated Harassment in the Second Degree, charged in the instant case, has been declared unconstitutional when it prohibits communication made merely with the intent to annoy or alarm. Vives v. City of New York, 305 F. Supp. 289 (S.D.NY 2003). See also Schlagler v. Phillips, 985 F. Supp. 419, 421 (S.D.NY 1997) rev'd on other grounds, 166 F. 3d 439 (2d Cir. 1999)("The statute in this case is utterly repugnant to the First Amendment of the United States Constitution and also unconstitutional for vagueness..."). These two decisions cited with approval People v. Dupont, 107 AD2d 247 (1st Dept. 1985), an earlier New York State appellate decision which had similarly concluded that the statute was unconstitutional when used to criminalize communication made by someone who merely possessed the intent to annoy or alarm. Thereafter, in People v. Mangano, 100 NY2d 569 (2003), the Court held the statute unconstitutional as applied to a defendant who left five invective-filled messages on a town hall telephone answering machine. In dicta, the court added"We cannot agree with the People's argument that appellant's messages fall within any of the proscribable classes of speech or conduct."

Id., at 571.

Applying these decisions and their progeny, courts have "read additional elements into the statute." People v. Bethea, 1 Misc 3d 909 (NYC Crim. Ct. 2004). The standard was set forth in People v. Smith, 89 Misc 2d 789, 791-792 (App. Trm. 2d Dept. 1977), cert. den. 434 US 920 (1977):

"We conclude that subdivision 1 was intended to include communications which are obscene; threats which are unequivocal and specific; communications which are directed to an unwilling recipient under the circumstances wherein substantial privacy interests are
being invaded in an essentially intolerable manner'; communications which by their very utterance tend to incite immediate breach of the peace; and written communications intended to stimulate court process of any kind. The communication must, of course, also be made in a manner likely to cause annoyance or alarm and with intent to harass, annoy, threaten or alarm. As so construed, subdivision 1 does not, in our opinion, suffer from constitutional infirmity." (Internal citations omitted).


Put another way, "it is simply not a crime merely to speak or write bad things about another person." People v. Bethea, supra . Accord People v. McDowd, 3 Misc 2d 380 (Nass. Sup. Ct. 2004)(threat need not be made to a specific person, can be directed toward a class or persons).

Thus, in analyzing the facial sufficiency of the instant accusatory instrument, the court must be wary of making "a purely mechanical application of the statute to the alleged conduct....However, the court need not ignore common sense or the significance of the alleged conduct in determining facial sufficiency." People v. Gonzalez, supra .

The Accusatory Instrument in this case consists of a sworn statement given by the arresting officer, denominated a Misdemeanor Complaint, and a Supporting Deposition from the Complainant. In her Supporting Deposition, the Complainant accuses the defendant, her husband, of calling her and

stating "today wasn't pleasant, and I am going to subpoena your parents next. I expect a proposal from you in a few days. I want 25% of the house or I am going to get you and your parents." The [*7]Complainant further alleges that Defendant made the above statement "in a very menacing manner" and then hung up the telephone. The Complainant continues that she then called Defendant back and spoke to him again. During this second conversation, she alleges that Defendant stated "if I don't get my 25% of the house I am going to get you." At the time of both telephone conversations,

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the Complainant was in her car, not in close proximity to Defendant.

In his moving papers, Defendant challenges the facial sufficiency of the Accusatory Instrument on the ground that "words alone cannot satisfy the elements of harassment." Supporting Affirmation of Keith M. Brown, Esq., p. 9. Without specifically rebutting this argument, the People oppose the motion, asserting that the two documents are "sufficient to provide notice to the defendant so as to allow for the defendant to prepare a defense and to prevent the defendant from being tried twice for the same offense." Affirmation in Opposition, p. 5.



With respect to the specific communications alleged in the accusatory instrument, the most significant are the two identical phrases, made once in each telephone call, wherein Defendant allegedly stated "I am going to get you." In order for the accusatory instrument to be facially sufficient, these statements, or either one of them, must establish, prima facie, that Defendant communicated with the Complainant anonymously or otherwise by telephone in a manner likely to cause annoyance or alarm. PL §240.30(1).

Turning first to the second alleged threat made by Defendant, it was conveyed during a telephone call initiated by the Complainant. In People v. Amalfi, 141 Misc 2d 940 (Rochester City Ct. 1988), the court dismissed an Aggravated Harassment in the Second Degree charge where the challenged language was uttered during a telephone call made when the complainant activated the *69 callback feature on her telephone. The court held that the legislature could not have intended "to prevent an angry response to an annoying telephone call by the imposition of a criminal charge against the

recipient of the telephone call." Almost ten years later, the same reasoning was applied in People v. Rusciano, 171 Misc 2d 908 (Just. Ct. 1997). There, too, the court dismissed an Aggravated Harassment in the Second Degree charge because the allegedly threatening statement was made during a telephone call similarly initiated by the complainant.

In People v. Hernandez, 7 Misc 3d 857 (NYC Crim. Ct. 2005), however, the court opined that the 2001 amendment to the statute, adding the prefatory language "causes a communication to be initiated" to subsection 1(b), evinces a legislative intent that a Complainant-initiated telephone call does not prevent prosecution for Aggravated Harassment in the Second Degree. In Hernandez, the

complainant called the defendant in response to a "beeper page." The court relied on the statutory amendment in rejecting the defendant's argument that the accusatory instrument was facially deficient because it alleged that the Complainant initiated the telephone call. Compare People v. Behlin, 21 Misc 3d 338 (NYC Crim.Ct. 2008)(allegations regarding defendant-parent's threatening response during principal's telephone call insufficient). While the Hernandez court's reasoning may be correct on its particular facts, there is nothing alleged in the instant accusatory instrument from which one could infer that Defendant "caused" the Complainant to initiate the second telephone call. [*8]In fact, as alleged by Complainant, she initiated the second telephone call immediately after Defendant abruptly terminated the first. Since Defendant neither initiated the second telephone call nor caused it to be made, the second alleged "I am going to get you" threat made by Defendant in the instant case cannot be considered in determining the facial sufficiency of the accusatory instrument.

In analyzing the allegations regarding the first, defendant-initiated telephone call, Defendant argues that "words alone" are insufficient to support the crime charged. While this sweeping assertion may be true for some accusatory instruments, determination of facial sufficiency is necessarily fact specific and requires detailed examination of the facts alleged and the offense(s) charged. Thus, the specific question raised in the instant motion is whether the words "I am going to get you" are sufficient to establish, prima facie, a likelihood to cause annoyance or alarm. At least two courts have had occasion to consider almost identical language in the context of a motion to dismiss for facial sufficiency.

In People v. Yablov, 183 Misc 2d 880 (NYC Crim. Ct. 2000), the accusatory instrument alleged that, over the course of a 17-month period, defendant left messages on the complainant's answering machine on three separate occasions, and then called him 22 times in 12 hours on a fourth occasion. The most serious language used was the following:
"If I don't get the money you make tomorrow, I'l [sic] go to the next step. I have so many irons in the fire, you don't know what the fuck is going on! You'll be vulnerable. We'll get you, David, we'll get you!" (Emphasis added).


Id., at 882-883. In addressing a motion to dismiss for facial insufficiency, the court held that the defendant's actions and "we'll get you" threats were "offensive and obnoxious," but were not specific enough to satisfy the elements of Aggravated Harassment in the Second Degree.

Similarly, in People v. Behlin, supra , the accusatory instrument alleged that a school principal had telephoned a parent to inform him that his child was being suspended. The defendant-father replied that the principal had better watch it, and that he "was going to get" her. This court, too, granted

dismissal, holding that these threats were far too vague and remote to establish a prima facie case of harassment under 240.30(1).

In contrast, in People v. Limage, 19 Misc 3d 395 (NYC Crim Ct. 2008), the defendant was alleged to have sent six text messages to the complainant's cellular telephone indicating that he was, at that time, outside the complainant's residence and that the complainant would end up in the hospital. In distinguishing the "we'll get you" language alleged in Yablov, the court held that the six text messages "clearly convey (sic) a greater sense of imminence, rather than some abstract notion of what might happen at an unspecified later time." Id., at 400.



The factual allegations in the instant case more closely mirror those found insufficient in Yablov and Behlin. The two statements "I am going to get you" in the instant case, are almost identical to the "we'll get you" language in Yablov and "going to get" language in Behlin. Moreover, in contrast to Limage, at the time of the alleged threats, the Defendant herein was neither in close proximity to the [*9]Complainant nor indicated any knowledge of where she was. The Limage "sense of imminence" requirement is totally deficient in the instant accusatory instrument

Defendant's actions and words, if true, were offensive and repugnant. They certainly are not excused merely because the two parties were in the midst of a contested divorce action. They are neither to be condoned nor encouraged in any scenario. Those words are not, however, criminally proscribed. Similarly to the "get" language in Yablov and Behlin they do not rise to the level of criminalitydefined by the Penal Law as Aggravated Harassment in the Second Degree.[FN3]

In sum, the accusatory instrument alleges insufficient facts to establish reasonable cause to establish the two elements of Aggravated Harassment in the Second Degree. Therefore, Defendant's motion to dismiss the accusatory instrument for facial insufficiency is granted. Since there are no charges remaining on the docket, Defendant's motion to vacate the previously issued Temporary Order of Protection is also granted.

This shall constitute the Decision and Order of the court.

Dated: March 11, 2010

____________________________

David S. Zuckerman, Town Justice

Footnotes


Footnote 1:In his Reply Affirmation, defense counsel describes his motion as one seeking dismissal on the grounds that "Defendant has submitted documentary evidence substantiating the absence of a triable issue of fact, warranting an Order dismissing the Complaint against him as a matter of law."

Footnote 2:In his Reply Affirmation, defense counsel further defines his motion as seeking dismissal on the grounds that:

"b.The Misdemeanor Complaint is facially deficient as the allegations set forth therein are inconsistent with the allegations in Complainant's Supporting Deposition, and

c.The allegations proffered by Complainant fail to establish conduct to warrant a violation of Penal Law Sec. 240.30(1), Aggravated Harassment in the Second Degree."

Footnote 3:Consideration of the second alleged threat, in which the defendant is accused of using identical language, would not change the outcome.