Defendant, charged with violating Penal Law § 240.30(2), moves to dismiss, arguing that the allegation that the complainant heard "defendant's voice" during a threatening telephone call is a "conclusory allegation." The Court disagrees.

However, the information is facially insufficient for an entirely different reason: it does not allege that the defendant placed the telephone call at issue, as required by § 240.30(2). Defendant' s motion to dismiss for facial insufficiency is accordingly GRANTED, with leave to supersede. Sealing is stayed for 30 days.

According to the information, the complainant, through the speaker of her daughter's cell phone, heard "the defendant's voice" threaten to "come and shoot everybody in the house."

Defendant was arraigned July 30, 2015, on a misdemeanor complaint charging him with one count of aggravated harassment in the second degree under Penal Law § 240.30(2). The court set bail, which defendant eventually posted, and adjourned the case for conversion. On August 6, the People filed a certificate of readiness and a superseding information charged the defendant [*2]with the same offense. Defendant moved to dismiss on November 5, 2015, and the People filed a response. The matter has been sub judice since January 21, 2016.

The information, sworn out by the complainant, provides that

I observed the defendant's voice through [the] speaker phone on my daughter's cell phone. I heard the defendant state to me, in substance, "I'm going to come and shoot everybody in the house."

The defendant's statements during the phone call caused me to fear for my safety.

Defendant argues that the information is facially insufficient because it does not allege a basis for the complainant's assertion that this defendant is the person who made the threat. Sloane Aff at ¶¶ 6, 7. For the reasons that follow, the Court disagrees.

An information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 ( 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987) . Accordingly, an information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." Kalin, 12 NY3d at 228-29, 906 N.E.2d at 383, 878 N.Y.S.2d at 655 (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)), emphasis added. This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the information allege facts that would prove a defendant's identity beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). But, nevertheless, there must be a reasonable basis for concluding that the defendant before the court is the person who committed the charged offense or offenses. See, e.g., People v. DeFreitas, 48 Misc 3d 569 (Crim Ct NY County 2015).

For an information to sufficiently allege defendant's identity as the perpetrator, as for any other element, the accusatory instrument must contain "facts of an evidentiary character" that support identity. CPL § 100.15(3). The Court of Appeals has repeatedly held that "conclusory allegations" are not "facts of an evidentiary character." People v. Dumas, 68 NY2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986); People v. Dryden, 15 NY3d 100, 104, 905 N.Y.S.2d 542, 931 N.E.2d 526 (2010). See also People v. Lebron, 22 Misc 3d 217, 220—21, 866 N.Y.S.2d 560 (Crim Ct NY County 2008) (allegation that drugs were recovered from "the defendant's apartment," was insufficient absent "evidentiary facts" that would support the conclusion that the defendant "owned or occupied" the apartment); People v. Taylor-Atkins, 42 Misc 3d 1214(A), [*3]986 N.Y.S.2d 867 (Crim. Ct. NY County 2014) (same, where allegation was that police officer found marijuana in "defendant's locker").A fact of an "evidentiary character" is a "nonconclusory description[] of what the deponent personally observed, heard or experienced." People v. Concepcion, 36 Misc 3d 551, 945 N.Y.S.2d 543 (Crim. Ct. NY County 2012) (citing Dumas). It is "the written equivalent of competent and relevant testimony which the deponent could give orally if called as a witness." People v. Phillipe, 42 Misc 2d 574, 578, 538 N.Y.S.2d 400, 404 (Crim. Ct. Kings County 1989 ). Thus, where the fact at issue is a conclusion that derives solely from another fact or facts that have not been alleged, that fact is a "conclusory allegation."

Relying on People v. Garcia, 48 Misc 3d 1204(A) (Crim Ct NY County 2015), defendant argues that the information contains a "conclusory allegation" that he defendant was the person who threatened the complainant over the phone. But this case is not like Garcia. Garcia involved a business dispute between a mover and his customer, who was not the defendant. Id. They typically transacted business using the customer's cell phone, and the information alleged that, over that same phone "the defendant" threatened the complainant. Because the Court was unable to discern any fact in the information that might connect the defendant and the complainant, or any fact that might have explained how the complainant could attribute the call to the defendant, the Court found the information facially insufficient.

But here, the information does not merely allege that the "defendant" made the threat. The information attributes the threat to "the defendant's voice," an allegation that provides a basis for making the attribution. There is a reasonable inference from this allegation that the complainant knew it was the defendant because she knew the voice to be his. Accordingly, the information is facially sufficient as to identity.

There are some penal law statutes, such as Penal Law § 240.30(1)(a), that cover issuing a threat during a telephone conversation. But § 240.30(2), the statute charged here, is not among them. That section requires that the defendant "make[]" the call himself. Indeed, § 240.30(2) is "primarily aimed at two types of harassing telephone conduct: (1) driving a person to distraction by repeatedly dialing his number, and (2) tying up business lines by repeated calls." Donnino, William C., practice commentary to Penal Law § 240.30 (citing legislative history). See also People v. Portnoy, 158 Misc 2d 60 (Crim Ct Kings County 1993) (section 240.30(2) "contemplates harassment from the act of telephoning"). Where the defendant does not place the call in which he made the threat, he does not violate § 240.30(2).

The information here is silent as to who initiated the telephone call in which the complainant heard the defendant make the threat. Either the defendant initiated the call himself or someone else did. But since these possibilities are equally likely, the Court cannot conclude that there is reasonable cause to believe that the defendant placed the call. See, e.g., People v. Seaward, 45 Misc 3d 1221(A) (Crim Ct NY County 2014) (dismissing contempt charge where evidence was in "complete equipoise" as to whether defendant made a telephone call in violation of an order of protection). In this regard, this case is indistinguishable from People v. Kitsikopolous, 47 Misc 3d 1220(A) (Crim Ct NY County 2015), in which defendant was alleged to have violated Penal Law § 120.45(2), which requires an allegation that the defendant [*4]"telephon[e]" another person. But since the information there only reported the content of the calls and did not allege that the defendant initiated them, it was facially insufficient. Id.

Here, likewise, absent an allegation that the defendant placed the telephone call in which he threatened to shoot the complainant and everyone in her house, the information does not make out a prima facie case that the defendant violated § 240.30(2).

However, this is a case where there might be additional facts available to the People that, if properly pled, could cure the insufficiency. Accordingly, while the Court is dismissing the information, it does so with leave to the People to supersede. Sealing is stayed for 30 days.

For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is granted, with leave to the People to supersede. Sealing is stayed for 30 days.