The defendant is charged with two counts of Aggravated Harassment in the Second Degree (Penal Law §§ 240.30 (1) (a), (b)) and one count of Criminal Contempt in the Second Degree (Penal Law 215.50 (3)). The defendant has moved to dismiss the proceeding pursuant to Criminal Procedure Law (CPL) §§ 100.40, 170.30, and § 100.15 for facial insufficiency. 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 a defense and prevent him from being tried twice for the same offense (People v Casey, 95 NY2d [*2]354, 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, 95 NY2d 354).

New York Penal Law § 240.30 (1) provides that a person is guilty of Aggravated Harassment in the Second Degree when with the intent to harass, annoy, threaten or alarm another, he or she: "[e]ither (a) 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; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise 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." Penal Law § 215.50 (3) states that a person is guilty of the charge when he or she intentionally disobeys or resist a lawful process or other mandate of the court, except in cases involving or growing out of a labor dispute.

The accusatory instrument upon which the defendant is arraigned reads as follows:

Deponent is informed by Mariza Zarzuela that, at the above time and place, the defendant did call the informant multiple times and send informant multiple text messages and that upon informant answering one of said calls defendant did yell and curse at the informant asking in sum and substance why wasn't informant picking up informant's phone and why the fuck was informant being disrespectful towards the informant and that defendant did recognize the voice from said phone call to be that of the defendant and that defendant did recognize the number where said phone calls and text messages originated from to be that of the defendant.

Deponent is further informed by the informant that the above described actions caused informant to become alarmed and annoyed.

The accusatory instrument is signed by the deponent and a supporting affidavit is included.

In People v. Smith, 89 Misc 2d 789, the legislative intent of Penal Law � 240.30 (1) was outlined and the court stated that the legislature intended to criminalize communications that are: "(1) written communications intended to stimulate court process, (2) obscene, (3) by their very utterance an incitement to an immediate breach of the peace, (4) specifically and unequivocally threatening, or (5) directed at an unwilling recipient whose privacy interest are invaded in an intolerable manner" (People v. Gonzalez, N.Y.L.J. March 10, 2004, p. 20, col. 3, citing, People v. Smith, 89 Misc 2d 789, at 791-792 [App. Tm., 2nd Dept. 1977], cert. denied, 434 U.S. 920 [1977]). This court follows the analysis outlined in People v. Smith, 89 Misc 2d 789 [1977], cert den 434 US 920 [1977]. The charge has been found unconstitutional where it was aimed at communication intended simply to annoy or alarm (see People v. Digianni, 27 Misc 3d 1211(A), [J. Ct., Westchester Co. 2010] citing Vives v. City of New York, 305 F. Supp. 2d 289 [S.D.NY 2003], Schlagler v. Phillips, 985 F. Supp. 419, 421 [S.D.NY 1997] rev'd on other grounds, 166 F. 3d 439 [2d Cir. 1999], see also People v. Mangano, 100 NY2d 569 [2003]). Further, given that first amendment rights are at issue the statute should be narrowly construed (see People v. Dupont, 107 AD2d 247 [App. Div., 1st Dept.] holding that the statute must be narrowly tailored to impede the violation of first amendment rights).

The allegations are that the defendant called and sent text messages to the complainant multiple times. The number of calls or texts is not specified. It is alleged that when the [*3]complainant answered one of these calls the defendant yelled and cursed at the complainant. As to the first prong of the analysis, the communication was not in writing and there is no indication that it was done to stimulate court process. It is alleged that the defendant stated in sum and substance "why wasn't informant picking up informant's phone" and "why the fuck was informant being disrespectful." Although the defendant is alleged to have used a curse word, that alone is not sufficient for criminal liability (People v. Yablov, 183 Misc 2d 880, 886 [Crim. Ct., NY Co. 2000] wherein the defendant used the work "fuck" in his communication the complaint was dismissed for facial insufficiency). Third, the communication was not by its very utterance an incitement to an immediate breach of the peace. Also, there is no indication of a threat. The communication was not specifically or unequivocally threatening or directed at an unwilling recipient whose privacy interests were invaded in an intolerable manner. Therefore, a basis for the charge is absent.

In Gonzalez, N.Y.L.J. March 10, 2004, the defendant telephoned the complainant and stated "La India, you better watch your back because you don't know who you're messing with." However, the proceeding was dismissed since there was no specific or unequivocal threat contained in the communication (Id.; see also, People v. Yablov, 183 Misc 2d at 886, wherein the statement "if you don't get the money you make tomorrow, I'll go to the next step. I have so many irons in the fire, you don't know what the fuck is going on" and "we'll get you" was held insufficient for the charge; People v. Deitze, 75 NY2d 47, 53-54 [1989], statement that defendant would "beat the crap out of the complainant some day or night on the street" held to be nothing more than an isolated crude outburst). In People v. Behlin, 21 Misc 3d 338, 341 [Crim. Ct., Kings Co. 2008], the charge was also held insufficient and dismissed where it was alleged that the defendant stated "better watch it, and that the defendant was going to get the informant" since a specific threat was not alleged. Without a specific or unequivocal threat, the communication is more analogous to a mere taunt or challenge and not the conduct intended to be criminalized by Penal Law � 240.30 (1) (Gonzalez, N.Y.L.J. March 10, 2004, citing, Abramovsky, The Charge and Misuse of Harassment, N.Y.L.J., September 8, 1997, p. 3, col. 1).

Dismissal of this charge is also required herein given that the instant statement is neither unequivocal, unconditional, specific or immediate as to the person it was directed, to demonstrate a gravity of purpose and that an imminent prospect of execution exists (United States v. Kelner, 534 F.2d 1020, [2nd Cir. 1976]). The statement leaves doubt that an event is certain to happen and that it will occur in the immediate future. The statement does not threaten a specific harm, time or place of occurrence (People v. Yablov, 183 Misc 2d 880, 886 [Crim. Ct., NY Co. 2000]). No threat is alleged and any interpretation of a threat would be unclear, ambiguous as there is no true threat (see People v. Behlin, 21 Misc 3d 338, 342). Therefore, a basis for the charge is not provided by the instant allegations.

Also, the allegations do not demonstrate a substantial violation of the complainant's privacy interest. Substantial privacy interest are at play were repeated calls are made (see People v. Miguez, 556 N.Y.S.2d 231 [Crim. Ct., NY Co. 1990]). The number of calls or text are not provided. Consequently, there is no cause to believe that the complainant's substantial privacy interests were compromised. The charge may also not be maintained on this basis. Consequently, the instant allegations are inapplicable to and insufficient for a charge under Penal Law § 240.30 (1).

Penal Law § 240.30 (2) is primarily aimed at two types of harassing telephone conduct: (1) driving a person to distraction by repeatedly calling their number, and by (2) tying up [*4]business lines with repeated calls (People v. Minquez, 147 Misc 2d 482, 485 [Crim. Ct., NY Co. 1990] citing, Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law � 240.30, at 253; see, People v. Smith, 89 Misc 2d 789 [App. Tm., 2nd Dept. 1977], cert. denied, 434 U.S. 920 [1977]). As stated, the number of call is not alleged. The allegations do not show that the defendant made unreasonable and unjustified repeated calls that drove others to distraction or tied up a business line. The allegations do not provide reasonable cause to believe that the defendant committed this offense given the absence of evidence concerning a significant number, the required content and frequency of the calls. There is no showing that the defendant made a number of calls or with such frequency to establish an intent on his part to harass, annoy, threaten or alarm another. The allegations also fail to establish, as required, that the calls and text were made "with no purpose of legitimate communication" (see Penal Law § 240.30 (2)).

The language of Penal Law � 240.30 (2) also imposes criminal liability where a single telephone call is alleged if it is placed with the requisite intent and lack of legitimate purpose although the statute does not necessarily contemplate a single act (People v. Shack, 86 NY2d 529, 541 [1995]). However, the content of the one call in this case does not sufficiently establish the required intent. The allegation that the defendant stated "why wasn't informant picking up informant's phone" and "why the fuck was informant being disrespectful" does not provide a sufficient showing that he acted intentionally to harass, annoy, or alarm since the defendant's actions in the instant case can be characterized as an isolated expression of frustration or isolated emotional outburst (see People v. Dietze, 75 NY2d 47 [1989]). The defendant is charged with aggravated harassment, not a simple form of harassment. "One isolated incident is not legally sufficient to sustain a conviction for harassment" (People v. Zullo, 170 Misc 2d 200, 202 [1st Dist. Ct., Nassau Co. 1996], citing People v. Chasserot, 30 NY2d 898 [1972]). An irritating statement in an isolated instance without more does not meet the criteria of aggravated harassment, unless some notice is given that the call was unwanted (People v. Coyle, 719 N.Y.S.2d 818 [2000]). There is no indication in this case that the defendant was on notice not to call the complainant. Consequently, a sufficient showing for this charge is not provided.

The allegations also do not sufficiently show that the defendant made the call with no purpose of legitimate communication since the complaint does not provide facts from which to discern this necessary element of the charge (see People v. Hogan, 172 Misc 2d 279, 282 [Crim. Ct, Kings Co. 1997]). It is difficult to recognize from the instant allegations whether there was no legitimate purpose for the call or for the communication that ensued. Simply demonstrating that a dispute was had during a phone conversation, without more, is not sufficient for the charge (Id.). Consequently, the allegations herein do not demonstrate that the communication was made with lack of legitimate purpose.

As discussed above, the allegations do not provide a prima facie showing that the defendant's actions served no legitimate purpose and the requisite intent is not demonstrated for a charge under Penal Law § 240.30 (2). The allegations are also inapplicable to and insufficient for a charge under Penal Law § 240.30 (1), as the intent and purpose of the legislation are not met in this case. Each charge of Aggravated Harassment must therefore be dismissed.

Additionally, the allegations contain admittedly glaring defects that the People have not moved to supercede. The allegations are that "defendant did recognize the voice from said phone call to be that of the defendant and that defendant did recognize the number where said phone calls and text messages originated from to be that of the defendant." Although the error does appear to have been made through inadvertence, the allegations must be accurate and there has [*5]been no correction. The allegations concerning the charge of Aggravated Harassment is also insufficient facially on this basis.

Last, the allegations concerning the charge of Criminal Contempt in the Second Degree must also be dismissed as no facts are alleged to establish that the defendant disobeyed or resisted a lawful process or other mandate of a court. There is no basis upon which to hold that the defendant violated an order of the court. The allegations do not even allude to a prior court proceeding or to the existence of an court order relation to the complainant or to the defendant. Consequently, this charge must also be dismissed on facial sufficiency grounds.

Accordingly, the information is dismissed in its entirety.

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

Dated:Brooklyn, New York

April 11, 2013

______________________________

The Honorable ShawnDya L. Simpson

Acting Justice of the Supreme Court