Defendant was charged with Aggravated Harassment in the Second Degree, Penal Law §§240.30 (1) (a) and 240.30 (1) (b) and Harassment in the Second Degree, Penal Law 240.26 (1). Defendant challenges the accusatory instrument as not facially sufficient under CPL §§170.30 (1) (a), 170. 35 (1) (a) and moves to dismiss the accusatory instrument pursuant to CPL §170.30 (1) (e).

For the reasons set forth below, the defendant's motion is denied.

The accusatory instrument provided a factual detail for the above charges in that on January 25, 2023, at approximately 8:30 A.M., at 88 Remsen Street, County of Kings State of New York the following circumstances occurred.

DEPONENT IS INFORMED BY J.L THAT, AT THE ABOVE TIME AND PLACE, THE DEFENDANT DID POST A VIDEO ONLINE STATING IN SUM AND SUBSTANCE, J.L YOU DO THIS DUMB SHIT AGAIN, I'M HOPPING THOSE STATE LINES MIGHT COME OVER. MIGHT HAVE TO END THAT LIFE OF YOURS. JUST SOME PRE-EMPTIVE DEAD THREATS."

THE DEPONENT IS FURTHER INFORMED BY THE INFORMANT THAT THE ABOVE-DESCRIBED ACTIONS CAUSED INFORMANT TO FEAR PHYSICAL INJURY AND TO BECOME ALARMED AND ANNOYED.

On April 27, 2023, defendant was charged with Aggravated Harassment in the Second Degree, Penal Law §§240.30 (1) (a) and 240.30 (1) (b) along with Harassment in the Second Degree, Penal Law 240.26 (1).

Aggravated Harassment in the Second Degree, Penal Law §§240.30 (1) (a) and 240.30 (1) (b) are class A misdemeanors which have a 90-day speedy trial time. See CPL 30.30 (1) (b). [*2]Thus, the people had until July 26, 2023, 90 days from the date of arraignment, to file their Certificate of Compliance, ("COC") and Statement of Readiness ("SOR") for trial.

On July 17, 2023, the 81st day of its speedy trial time calculation, the People served a Superseding information, Certificate of Compliance, ("COC"), a Notice and Disclosure ("NAD") and a Statement of Readiness ("SOR").

On August 23, 2023, the Defense filed the instant motion to dismiss the accusatory instrument as facially insufficient pursuant to CPL §§170.30 (1) (a) and 170. 35 (1) (a). The defense moved to dismiss all three charges in the accusatory instrument on the ground that the People failed to make out a prima facie case as to each charge and moved for Huntley/Dunaway/Wade and Sandoval hearings.

On September 11, 2023, the People filed their response to the defense motion. In their response the People advised that they consented to Huntley/Dunaway/Wade hearings and otherwise opposed the motion.

The requirement that an accusatory instrument contain nonconclusory allegations is part of the prima facie case requirement. People v Jackson, 18 NY3d 738, 746 (2012). The requirement of a prima facie case does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v Suarez, 51 Misc 3d 557 (Crim. Ct. New York County 2016) citing People v. Jennings, 69 NY2d 103, 115, (1986). The factual allegation within the complaint is required to allege "facts of an evidentiary character' (CPL §100.15[3] ) demonstrating 'reasonable cause' to believe the defendant committed the crime charged". See CPL §100.40 (4) (b), 100.40 (1) (b) (c); People v. Dreyden 15 NY3d 100,102 (2010); People v Torres 63 Misc 3d 164(A) (New York, Sup. Ct., App. Term 2019); People v. Maldonado 42 Misc 3d 81 (New York, Sup. Ct., App. Term 2nd Dept, 2nd, 11 & 13 Judicial Districts 2013).

A court reviewing an accusatory instrument for facial sufficiency must assume that the factual allegations are true and "in most cases the basis for such an allegation can be discerned by drawing reasonable inferences from all the facts in the accusatory instrument." People v Jackson, 18 NY3d 738, 747 (2012). "So long as the factual allegations give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v Casey, 95 NY2d 354, 360 (2000). (People v Konieczny, 2 NY3d 569, 575, [2004] quoting People v Casey, 95 NY2d 354, 360 [2000]).

A person commits Aggravated Harassment in the Second Degree "when, with intent to harass another person, the actor either communicates, anonymously or otherwise, by telephone, by computer, or any other electronic means ... a threat to cause physical harm to ... such person, or a member of such person's same family ... and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or ... to the physical safety ... of a member of such person's same family." See Penal Law § 240.30 (1) (a).; or

Causes a communication to be initiated, anonymously or otherwise, by telephone, by computer, or any other electronic means ... a threat to cause physical harm to ... such person, or a member of such person's same family ... and the actor knows or reasonably should know that [*3]such communication will cause such person to reasonably fear harm to such person's physical safety or ... to the physical safety ... of a member of such person's same family." See Penal Law §240.30 (1) (b).

A review of facial sufficiency is limited to a "fair and not overly restrictive or technical reading" of the accusatory instrument in determining the factual allegations of Aggravated Harassment in the Second Degree. People v Casey, 95 NY.2d 354, 360 (2000).

Initially, the accusatory instrument sufficiently identifies the defendant as the individual communicating the threats, by stating that defendant posted a video statement making a threat to the complainant. Thus, the accusatory instrument, sufficiently alleged that it was defendant who made the video threats.

Contrary to defendant's contention the accusatory instrument establishes the defendant communicated a threat to the complainant by placing online a video calling out the complainant's name and stating that he was going to hop over state lines and might have to end complainant's life. Moreover, defendant's intent to harass is clear and unambiguous. The defendant states "If you do this dumb shit again, I'm hopping those state lines might come over. Might have to end that life of yours." Clearly, defendant was seeking complainant's attention by naming him in the video before threatening to cause physical harm to complainant's life.

The accusatory instrument contained details of defendant's statements made to the complainant via a posting of a video statement, "which were unequivocal, specific and clearly implied the use of physical violence, the accusatory instrument provided reasonable cause to believe these statements contained 'no expression of ideas or thoughts other than threats and/or intimidating or coercive utterances.' " People v Pierre, 70 Misc 3d 69, 72 (Sup. Ct., App. Term 2nd Dept., 2d, 11th, and 13th Judicial Districts 2020) quoting (People v Shack, 86 NY2d 529, 538 [1995]).

The Court disagrees with defendant's contention that defendant's statements were not true threats and afforded protections of the First Amendment. " 'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v Black, 538 US 343, 359 (2003)(citations omitted). See also People v Pierre, 70 Misc 3d 69, 72 (Sup. Ct. App. Term 2d Dept., 2d, 11th and 13th Judicial Districts 2020). "The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.' '' Black at 359-360.

Here, defendant used a computer to post a video stating that defendant was going to commit an act of unlawful violence in that defendant stated that defendant would be "hopping those state lines might come over. Might have to end that life of yours." In addition, the statements caused complainant to fear physical injury and to become alarmed and annoyed. Thereby, making the statement a true threat which is not protected by the First Amendment.

Defendants reliance on People v. Orr, 47 Misc 3d 1213(A) (Crim. Ct. New York County 2015) is misplaced. In Orr, the court found no true threats occurred when the defendant telephoned complainant stating, "I can have you handled" and sent two text messages, "Go kill yourself bitch" and "You're not worth the air to take the jump bitch." In the instant matter, there is no question that there is a clear and unambiguous threat to use deadly force against the complainant. People v Onatolu, 61 Misc 3d 148(A) (Sup. Ct. App. Term New York 2018); People v Venturo, 51 Misc 3d 216 (Crim Ct. New York County 2015); People v. Brodeur, 40 [*4]Misc 3d 1070 (Crim. Ct. Kings County 2013); People v. Mitchell, 24 Misc 3d 1249[A], (Sup. Ct., Bronx County 2009); People v. Evans, 21 Misc 3d 260 (Crim. Ct., Kings County 2008); People v. Taylor, 19 Misc 3d 1114(A) (Crim. Ct. Kings County 2008); People v. Olivio, 6 Misc 3d 1034[A], Crim. Ct. New York County 2005); People v. Tiffany, 186 Misc 2d 917, 918 (Crim. Ct., New York County 2001).

The alleged statements provide reasonable cause to believe that the defendant threatened to end the complainant's life. The statement is not protected speech. Thus, for facial sufficiency purposes the video statement is a communication of a threat to cause physical harm in violation of the Aggravated Harassment in the Second Degree statute, Penal Law §§ 240.30 (1) (a) and 240.30 (1) (b). Similarly, they satisfy the intent to annoy, harass or alarm another person by threatening complainant to physical contact by warning to end the complainant's life as provided in the Harassment in the Second Degree statute, Penal Law § 240.26 (1).

Moreover, the factual allegations provide the defendant with sufficient notice to prepare a defense and adequately prevent a defendant from being tried twice for the same offense. See (People v Konieczny, 2 NY3d 569, 575, [2004] quoting People v Casey. 95 NY2d 354, 360 [2000]).

Accordingly, since the information here pleads a prima facie case of Aggravated Harassment in the Second Degree, Penal Law §§240.30 (1) (a) and 240.30 (1) (b) and Harassment in the Second Degree, Penal Law 240.26 (1), defendant's motion to dismiss for facial insufficiency is denied.

Defendant's motion, for pre-trial voluntariness hearings made to civilian and statements being used on cross-examination, is denied. The People have acknowledged the only statements being used are the statements that were noticed.

The defense motion, for Huntley/Wade/Dunaway hearings, is granted upon the consent of all parties. Further, the People are to disclose all information and evidence favorable to the defendant.

Lastly, the Sandoval hearing is granted to the extent the People will be seeking to use any prior bad acts, misconducts or criminal acts of defendant not charged.

The foregoing constitutes the opinion, decision, and order of the Court.