Defendant, charged with three counts of Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(1)(a) and three counts of Criminal Contempt in the Second Degree in violation of Penal Law § 215.30, moves to dismiss the counts of Aggravated Harassment in the Second Degree as facially insufficient. For the reasons discussed below, the Court GRANTS the motion to dismiss as to all counts.^[FN1]

I. FACTUAL BACKGROUND

A. The Allegations

According to the superseding accusatory instrument, on March 13, 2012, at approximately 2:45 p.m., Veronica Rosario received three phone calls from the defendant. It is alleged that said conduct is in violation of an Order of Protection issued by the Kings County Criminal Court on February 29, 2012, and which expired on June 29, 2012.

[*2]B. Legal Proceedings

On April 5, 2013, the defendant was arraigned on a Misdemeanor Complaint charging him with one count of Criminal Contempt in the Second Degree, in violation of Penal Law §215.50(3). Defendant was released on his own recognizance, and the case was adjourned to May 14, 2013, for conversion; specifically, a Supporting Deposition from Veronica Rosario.

On April 8, 2013, the People filed and served a supporting deposition from Veronica Rosario, the underlying order of protection and a statement of readiness.

On May 28, 2013, the People filed and served a superseding accusatory instrument charging the defendant with three counts of Criminal Contempt in the Second Degree and three counts of Aggravated Harassment in the Second Degree. They also filed the underlying order of protection.^[FN2]

Defendant filed the instant motion on November 13, 2013. The People filed their response at the December 4, 2013 calendar call. The case has been sub judice since December 4, 2013.

II. DISCUSSION

According to the accusatory instrument, the defendant made three telephone calls to the complainant, allegedly in violation of an order of protection issued by the Kings County Criminal Court. For the reasons that follow, the three counts of Aggravated Harassment in the Second Degree in violation of Penal Law §240.30(1)(a) and the three counts of Criminal Contempt in the Second Degree in violation of Penal Law §215.50(3) are dismissed for facial insufficiency.

A. The Information

Because this motion requires a detailed examination of the content of the accusatory instrument, the complete text of its factual recitation, as sworn out by Veronica Rosario, is set out below.

I received three phone calls from the defendant on March 13, 2012, at approximately 2:45 PM at the above-stated address. The defendant's above-described actions caused me annoyance and alarm.

The defendant's above-described conduct is in violation of a valid Order of Protection, issued in Kings County Criminal Court by Hon. Alexander Calabrese on February 29, 2012, in conjunction with Docket #2012CK000554. The order expired on June 29, 2012, and ordered the defendant to stay away from Veronica Rosario, and to refrain from contacting Veronica Rosario, harassing Veronica Rosario and committing aggravated harassment against Veronica Rosario. The Order of Protection was signed by the defendant.

To be facially sufficient, an Information must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, 42 NY2d 98 (1977). 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." CPL §70.10 (2).

This standard does not require that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, it need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial insufficiency must assume that the factual allegations contained in the Information are true and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360. Under these standards, the accusatory instrument here is facially insufficient.

C. Legal Analysis

1. Aggravated Harassment in the Second Degree - Penal Law §240.30(1)(a)

"A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm." Penal Law §240.30(1)(a). Clearly, it is essential to a charge of Penal Law §240.30(1)(a) that the defendant make some communication with the complainant. People v. Thompson, 28 Misc 3d 483 (Crim Ct Kings County 2010); People v. Miguez, 147 Misc 2d 482 (Crim Ct NY County 1990), aff'd 153 Misc 2d 442 (1992). In this case, however, the accusatory instrument is bereft of factual allegations indicating that the defendant said anything to Ms. Rosario or that he left her a message; it alleges only that he called her.

Penal Law § 240.30(1) "was intended to include communications which are obscene (citation omitted), threats which are unequivocal and specific (citation omitted), [and] communications which are directed to an unwilling recipient under circumstances wherein substantial privacy interests are being invaded in an essentially intolerable manner' (citation omitted). . . ." People v. Smith, 89 Misc 2d 789, 791 (App Term 2nd Dept 1977), cert den 434 US 920 (1977).

Here, the defendant is alleged to have made three phone calls to Ms. Rosario at approximately 2:45 p.m., a reasonable hour of the day. Because the contents, if any, of the phone calls have not been pled in the accusatory instrument, the factual allegations are [*4]insufficient to establish that the communication was obscene or an unequivocal threat. Nor are there sufficient factual allegations contained in the accusatory instrument to demonstrate that the communication was "directed to an unwilling recipient under circumstances wherein substantial privacy interests were invaded in an essentially intolerable manner." Notably, the accusatory instrument does not allege that Ms. Reyes ever told the defendant to stop calling her. People v. Thompson, 28 Misc 3d 483, 497 (Crim Ct Kings County 2010). Nor does the fact that an order of protection was in effect at the time that the defendant allegedly made the phone calls make them an unwanted communication. Unlike in People v. Evans, 21 Misc 3d 260, 264 (Crim Ct Kings County 2008) where a telephone message left by the defendant for the complainant, after the issuance of an order of protection forbidding all communication, was found to be an unwanted communication, in this case, contrary to what is alleged in the accusatory instrument, the order of protection did not forbid all communication (see footnote 2, supra), only that which would amount to aggravated harassment, or conduct that would fall within the purview of the prohibited behavior set forth in the order of protection. See People v. Taylor, 2002 NY Slip Op 50023(U) (App Term 1st Dept 2002).^[FN3]

Finally, the accusatory instrument does not sufficiently allege that the defendant made the alleged telephone calls with the requisite "intent to harass, annoy, threaten or alarm" Ms. Rosario. Absent allegations of the content of the phone calls, the Court cannot determine the purpose of the calls or find that they were made with an intent to harass, annoy, threaten or alarm. For instance, in People v. Taylor, 2002 NY Slip Op 50023(U) (App Term 1st Dept 2002), the Court found that two isolated phone calls that were not vulgar or threatening, made after the victim had obtained an order of protection, were insufficient to establish an intent to "harass, annoy, threaten or alarm" the complainant. Similarly, in People v. Franco, 15 Misc 3d 1136(A) (Crim Ct NY County 2007), the Court held that "the mailing of only two letters, standing alone," was insufficient to establish an intent to harass, annoy or alarm the recipient. Although intent can be inferred in certain instances, the lack of factual allegations in this case renders it impossible to infer intent. Moreover, the accusatory instrument alleges that the phone calls caused Ms. Rosario annoyance and alarm, yet it is devoid of factual allegations setting forth the content of the calls, and therefore, lacks "a specific or objective reason" for Ms. Rosario's annoyance or alarm. People v. Alfano, 5 Misc 3d 780, 784 (Just Ct Town of Webster 2004). Accordingly, the three counts of Aggravated Harassment in the Second Degree in violation of Penal Law § 240.30(1)(a) are dismissed as facially insufficient.

2. Criminal Contempt in the Second Degree - Penal Law §240.30(1)(a) [*5]

Because a facially sufficient accusatory instrument is a "jurisdictional prerequisite" to a criminal prosecution (People v. Case, 42 NY2d 98, 99 [1977]), the Court will address the facial sufficiency of the Criminal Contempt in the Second Degree charges despite the fact that the defendant did not raise the issue in his motion papers.

A violation of Penal Law section 210.50(3) results from the "[i]ntentional disobedience or resistance to the lawful process or other mandate of a court. . . ." Because the underlying order of protection was filed with the Court, and was necessary to convert the Misdemeanor Complaint to an Information, the Court must read the order of protection along with the accusatory instrument in determining facial sufficiency. People v. Grabinski, 189 Misc 2d 307, 308 (App Term 2d Dept 2001). That order, which was issued by Kings County Criminal Court, directed the defendant to "refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats or any criminal offense against" the complainant. It did not, however, forbid all communication. Since the alleged phone calls did not amount to aggravated harassment, or otherwise violate any of the other provisions of the underlying order of protection, the three counts of Criminal Contempt in the Second Degree, in violation of Penal Law § 215.50(3), must also be dismissed as facially insufficient. See People v. Taylor, 2002 NY Slip Op 50023(U) (App Term 1st Dept 2002).

For the foregoing reasons, all counts of the accusatory instrument are dismissed for facial insufficiency.

This constitutes the Decision and Order of the court.

Dated: February 3, 2014_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court