Defendant, charged with Stalking in the Third Degree (Penal Law § 120.50(3)) (Count One), Harassment in the Second Degree (Penal Law § 240.26(1)) (Count Four), and other, related offenses, moves to dismiss those two counts. For the reasons that follow the Court DENIES defendant's motion to dismiss Count One, and GRANTS the motion to dismiss Count Four.

Defendant also moves to suppress certain statements and for discovery. As to these motions, the Court denies the discovery motion as moot, as the People have filed a Voluntary Disclosure Form ("VDF"), and orders a Dunaway/Huntley hearing.

I. FACTUAL BACKGROUND

A. The Allegations

According to the accusatory instrument, on August 25, 2013, in Manhattan, the defendant, who was the former boyfriend of complainant Kelly Flanagan, insisted that he needed to see her. That night, apparently either drunk or high on drugs, defendant found Ms. Flanagan in an Upper Manhattan bar, where she witnessed him hitting the door and threatening to kill the bartender.

Defendant was taken away in an ambulance, but returned to the bar saying that he had jumped out the window of the hospital and would kill the bartender. He then left the bar and telephoned Ms. Flanagan three times, saying that he needed to see her.

B. Legal Proceedings

Defendant was arraigned on August 26, 2013, on a Misdemeanor Complaint charging him with Stalking in the Third Degree in violation of Penal Law § 120.50(3) (Count One), two counts of Aggravated Harassment in the Second Degree - violations of Penal Law § 240.30(1)(a) (Count Two) and Penal Law § 240.30(2) (Count Three) - and Harassment in the Second Degree (Penal Law § 240.26(1)). Because this was alleged to be a family offense, the People filed a Family Protection Registry Information Sheet and sought and obtained a Temporary Order of Protection in favor of Ms. [*2]Flanagan.

The Court set bail and, having been informed that defendant would post bail that same day, adjourned the case to October 30, 2013, for conversion.

On October 30, 2013, the People filed a Domestic Incident Report sworn out by Ms. Flanagan and the Court concluded that this converted the Misdemeanor Complaint to an Information. The Court set a motion schedule, under which December 19, 2013, was the date for Response and Decision.

Defendant filed his omnibus motion on December 19, 2013, which included the instant motion to dismiss. Although the motion was late, the Court accepted it, and set February 6, 2014, as the date for Response and Decision. The People filed and served a VDF at that same calendar call.

On February 6, 2014, the People filed their response and the Court adjourned the case for decision. The matter has been sub judice since then.

II. DISCUSSION

Defendant is alleged to have repeatedly made efforts to contact the complainant, and threatened to kill a third party - the bartender at a bar that they apparently frequented. Since Aggravated Harassment in the Second Degree requires an allegation that the defendant threatened the complainant directly, that Count Four, which alleges that offense, is facially insufficient. Count One, however, charges the defendant with Stalking in the Third Degree, under Penal Law § 120.50(3). Since the Court concludes that this offense does not require an allegation that the defendant threatened the complainant directly, the motion to dismiss that Count is denied.

A. The Accusatory Instrument

Because this motion requires a detailed examination of the content of the accusatory instrument, the complete text of the Domestic Incident Report, as sworn out by Ms. Flanagan, is set out below:

I had issues all day. [H]ad a report made earlier in the day for Kenneth coming and making commotion that he needs to see me. He is drunk and high on drugs. He then came to the Liffey and started banging on the door telling me he needed to see me then threatening the bartender it was all her fault he was going to kill her. He was then put in an ambulance to go to the hospital. He appeared back at the Liffey stating he jumped out of the hospital window and would kill the bartender. He left and proceeded to call three times while the police are with me telling me he needed to see me, I let the officer hear the conversation between the two of us.

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). [*3]

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 sufficient as to Count One, and facially insufficient as to Count Four.

C. Count One is Facially Sufficient

Penal Law § 120.50(3), in pertinent part, provides that "[a] person is guilty of stalking in the third degree when ... [h]e ..[w]ith intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person

which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person's immediate family." Here, the totality of the conduct ascribed to the defendant in support of Count One sufficiently alleges that he engaged in a course of conduct directed at Ms. Flanagan that was likely to cause her to fear for her own safety. Thus, even though the specific threat alleged - that defendant would kill a third party - was not directed at Ms. Flanagan, the Information is facially insufficient as to this charge.

New York's stalking statutes, one of which is Penal Law § 120.50, were enacted based on a legislative realization that

criminal stalking behavior, including threatening, violent or other criminal conduct has become more prevalent in New York state in recent years. The unfortunate reality is that stalking victims have been intolerably forced to live in fear of their stalkers. Stalkers who repeatedly follow, phone, write, confront, threaten or otherwise unacceptably intrude upon their victims, often inflict immeasurable emotional and physical harm upon them. Current law does not adequately recognize the damage to public order and individual safety caused by these offenders. Therefore, our laws must be strengthened to provide clear recognition of the dangerousness of stalking.

As the emphasized material in the above quoted language reveals, the stalking statutes were enacted to cover a wide range of behavior. While the Legislature intended that threatening the complainant would one way that a defendant can violate those statutes, it is not the only way, and is not a necessary prerequisite to liability. That this has been accepted by New York courts is reflected in those cases finding liability under § 120.50(3) where the defendant did not expressly threaten the complainant. One example is People v. Paes, 17 Misc 3d 1120(A) (Crim Ct NY County 2007), in which the court found facially sufficient an Information charging the defendant under § 120.50(3), the same section under which defendant is charged, even though "defendant [was] not alleged to have made an explicit threat" towards the complainant. Another is People v. Ross, 2003 WL 21297298 (Crim Ct NY County 2003). There, after a suppression hearing, the court found that there was probable cause to arrest the defendant for, inter alia, Penal Law § 120.50(3), because [*4]the defendant was alleged to have repeatedly called and visited the complainant asking for money. Id. at *1.

People v. Perez, 189 Misc 2d 516, 518, 520 (County Court, Nassau County, 2001), found that an indictment charging defendant with violating § 120.50(3) was legally sufficient where the evidence before the grand jury revealed that the defendant's conduct consisted of nothing more than following the complainant's car in his own along various roads in Nassau and Suffolk Counties. Significantly, the court there noted that the statute did not require that the defendant's conduct be of "any particular type," as long as it met the course-of-conduct requirement and placed the complainant in fear. Id. at 520.

These cases compel the denial of defendant's motion to dismiss Count One. The conduct ascribed to the defendant here was just as frightening, if not more so, than that described in the above cases, even though it is true, as defendant argues, that the only explicit threat that he made was directed at a third party. Defendant is alleged to have behaved violently and erratically, in what can only be seen as a persistent and deranged effort to make contact with the complainant. He was forcibly hospitalized, escaped from the hospital - or so he said - and returned to the complainant's location, all the while threatening to kill someone else. Significantly, the person defendant is alleged to have threatened is someone to whom he apparently attributed his inability to gain access to the complainant. All of these facts, considered together, would have been reasonably likely to cause the complainant to fear for her own safety, irrespective of the fact that the specific threat of violence was directed towards someone else. Accordingly, the facts alleged adequately plead Penal Law § 120.50(3), and the motion to dismiss Count One as facially insufficient is denied.

D. Count Four is Facially Insufficient

Penal Law § 240.26(1) provides that a person is guilty of Harassment in the Second Degree when, "with intent to harass, annoy or alarm another person ... [h]e ... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." Unlike § 120.50(3), analyzed above, this section specifically requires that, where the conduct alleged is a threat, that threat must be directed at the complainant. Hence the phrase "such other person." Count Four, which charges a violation of § 240.26(1) is accordingly facially insufficient.

Here, as defendant correctly observes, the only conduct alleged in the Information that might implicate § 240.26(1) is defendant's threat to kill "the bartender." Other than that, he is not alleged to have done anything that might violate that statute. But "the bartender" is not the complainant here; defendant's former girlfriend is. And, as noted above, a threat to harm to someone other than the complainant, even when communicated to the complainant, does not violate § 240.26(1).

Apart from this threat, with respect to the complainant, defendant is alleged only to have acted on his "need to see her." While defendant's actions were undoubtedly extreme, if not terrifying - he hit the door of the bar where he found the complainant, claimed that he escaped from a hospital to return there, threatened to kill the perceived impediment to their being together, and repeatedly called the complainant on the phone - his efforts to "see" the complainant, without more, did not amount to a violation of § 240.26(1). Defendant is not alleged to have had any actual physical contact with the complainant, nor is he alleged to have attempted to or threatened to subject her to physical contact.

Accordingly, for these reasons, the Information is facially insufficient as to Count Four. That [*5]count is dismissed.

III. Conclusion

For the foregoing reasons, the Court denies defendant's motion to dismiss Count One, and grants defendant's motion to dismiss Count Four. As for defendant's motions to suppress certain statements and for discovery, the Court orders a Dunaway/Huntley hearing, and denies the discovery motion as moot.

This constitutes the Decision and Order of the Court.

Dated: March 31, 2014_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court