Defendant moves for an order of dismissal on speedy trial grounds alleging that the accusatory instrument is facially insufficient as to all counts.

The Prosecution opposes.

For the reasons explained more fully herein, Defendant's motion is DENIED.

Defendant was arraigned on a misdemeanor complaint on December 29, 2023, charging two counts of Aggravated Harassment in the Second Degree (PL §§ 240.30[1][a], [b]) and one count of Harassment in the Second Degree (PL §240.20[1]). On February 1, 2024, the Prosecution served initial discovery. On February 8, 2024, the Prosecution filed a superseding information (SSI) charging the same three offenses. Defendant was re-arraigned on the SSI on February 15, 2024. On March 7, 2024, the Prosecution served discovery, along with a Certificate of Compliance (COC) and Statement of Readiness (SOR). On April 18, 2024, the Prosecution served additional discovery and a Supplemental COC. On May 30, 2024, Defendant indicated his intent to file the instant motion and the Court set a motion schedule.

Defendant argues the accusatory instrument is facially insufficient as to all three charges. As to the two counts of Aggravated Harassment in the Second Degree, Defendant argues that the factual allegations do not constitute a threat to cause physical harm. As to the count of Harassment in the Second Degree, Defendant argues the accusatory instrument fails to establish the intent element; specifically, he argues that the complaint does not allege that he acted with intent to harass, annoy, or alarm the complainant, instead relying upon the complainant's purported reaction to create a factual inference. He argues that the statements are too vague and could easily be interpreted in a benign way. Defendant argues all three statutes are unconstitutional as applied because without a threat of specific and immediate harm, his alleged words are constitutionally protected speech. Finally, relying upon People v Golb (23 NY3d 455 [2014]) [holding that PL §240.30(1)'s former prohibition on any communication that has the [*2]intent to annoy was unconstitutionally vague and overbroad]), Defendant argues the statute defining the offense of PL §240.26, Harassment in the Second Degree employs identical language and is therefore also unconstitutionally vague and overbroad.

The Prosecution argues the threats are sufficiently specific and immediate to constitute true threats. They contend that Defendant's suggestion that the alleged statements may be read in a playful or otherwise non-threatening context are more suited for trial than an assessment of facial sufficiency. Intent, the Prosecution argues, may and often must be shown by inference based on alleged conduct and surrounding circumstances. As to the constitutionality of PL §240.26, Harassment in the Second Degree, the Prosecution argues it is sufficiently specific to cover only language that is not protected speech, such as fighting words and true threats. Even if the Court finds some of the counts facially insufficient, the Prosecution argues they certified readiness in good faith.

To be deemed facially sufficient, a misdemeanor information must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offenses charged and, if true, the allegations must establish every element of each offense (see People v Alejandro, 70 NY2d 133, 137 [1987]; CPL §100.40[1]). Facial sufficiency is determined by reviewing the factual portion of the accusatory instrument in conjunction with any supporting depositions. However, the prima facie requirement for the facial sufficiency of an information "is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based upon the proof presented at trial" (People v. Smalls, 26 NY3d 1064, 1066 [2015]). "So long as the factual allegations of an information 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]). The court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations (CPL §100.15; Alejandro, 70 NY2d at 135; People v Henderson, 92 NY2d 677 [1999]). The court need not negate every other plausible theory when a reasonable view of the facts establishes the offense charged (People v Dumay, 23 NY3d 518, 525-526 [2014]).

"A person is guilty of aggravated harassment in the second degree when with intent to harass another person, the actor either: (a) communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person's same family or household as defined in [CPL §530.11(1)], 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 property, or to the physical safety or property of a member of such person's same family or household; or (b) causes a communication to be initiated" as described above in section (a) (CPL §240.30[1]).

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (CPL §240.26[1]).

Pursuant to CPL §30.30[1][b], the prosecution must declare trial readiness within ninety [*3]days from the date of commencement of a misdemeanor criminal action. To properly announce trial readiness, the prosecution must certify in good faith compliance with their discovery obligations pursuant to CPL §245.20 (CPL §30.30[5]). "Absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial until it has filed a proper certificate [of compliance]" (CPL §245.50[3]). A statement of readiness is valid only if the prosecution certifies that all counts in the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40, and those that do not have been dismissed (CPL §30.30[5-a]). A defendant seeking dismissal pursuant to CPL §30.30 meets their initial burden by alleging that the prosecution has failed to declare readiness within the statutorily prescribed period (People v Beasley, 16 NY3d 289, 292 [2011]).

Once the defendant has shown that there is more than ninety days of delay, the burden of proving the existence of excludable periods falls upon the prosecution (People v Berkowitz, 50 NY2d 333, 349 [1980]). The prosecution must demonstrate that the disputed adjournments are excludable by reference to a statutory provision (People v. Luperon, 85 NY2d 71, 77-78 [1995]; People v. Cortes, 80 NY2d 201 [1992]; People v. Santos, 68 NY2d 859 [1986]; Berkowitz, 50 NY2d at 348-350). The prosecution also bears the burden to clarify, on the record, the basis for an adjournment so that the motion court can determine to whom the adjournment should be charged (Cortes, 80 NY2d at 215-216; People v Liotta, 79 NY2d 841 [1992]; Berkowitz).

The Court finds that the accusatory instrument is facially sufficient as to all three charges. Turning first to the more serious charges, PL §240.30(1)(a) and (b), Aggravated Harassment in the Second Degree, the essential elements are: (1) a communication, either directly from or otherwise caused by the defendant; (2) a threat of physical harm to or unlawful harm to the property of another person or a member of such person's household; and (3) that the defendant knows or reasonably should know that the communication will cause the other person to experience a reasonable fear. Prohibitions on speech must be sharply limited to true threats; a threat must have some demonstration of seriousness to show it is more than a crude outburst (People v Dietze, 75 NY2d 47, 53-54 [1989]). "A true threat is one that a reasonable person in the victim's position would consider to be an unequivocal statement of intended physical harm" (internal quotations omitted) (People v Lagano, 39 NY3d 108, 112 [2022]).

The factual portion of the accusatory instrument alleges the following: "the defendant called the informant's cell phone multiple times and on one call stated to the informant, in sum and substance, "I got something for you" and "I will slap you" and "watch when I see you.'" It further alleges that the informant recognized Defendant's voice over the phone and as a result feared imminent physical injury and became alarmed and annoyed.

Defendant's argument — that the phrase, "I will slap you" is too ambiguous to constitute a true threat — is unconvincing in the context of assessing facial sufficiency. Defendant relies upon several cases in which courts have found accusatory instruments charging PL §240.30(1) to be facially insufficient when the alleged communications did not threaten specific and immediate harm. Among them, he cites People v Tackie (46 Misc 3d 1218[A] [2015] [holding that the alleged statement, "Don't let me use my boxing on you" is equivocal and does not constitute a true threat]), People v Yablov (183 Misc 2d 880, 882-883 [2000] [holding that the alleged [*4]statements, "If I 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! You'll be vulnerable. We'll get you David, we'll get you!" are facially insufficient as to PL §240.30(1) because they are a crude diatribe and not a threat of physical harm]), People v Orr (47 Misc 3d 1213[A] [2015] [holding that the statements "I can have you handled," "Go kill yourself bitch, " and "You're not worth the air to take the jump bitch" are insufficient]), and People v Ahmed (Decision and Order Dkt. No. 2014QN070460 [Crim. Ct. Queens, Co., J.D. Golia] [holding that the statements, "You have three days to come back to me, if you don't, I will find you and you will disappear, I will destroy your family" are insufficient because they do not demonstrate seriousness]).

The analogies Defendant draws are faulty insofar as his own alleged statement, "I will slap you" is unequivocal and threatens a specific action — a slap — rather than some nebulous, vague threat like, "We'll get you" or, "I will destroy your family." That Defendant's threat lacks a temporal element is not determinative; a threat can present an immediate and present danger even if it is not accompanied by an identifiable time, "if, under the totality of the circumstances, a threat would appear genuine to a reasonable person" (People v Lagano, 39 NY3d at 113 [2022]). Taking all facts as true and drawing all reasonable inferences as required during an assessment of facial sufficiency, the Court finds that the allegations here establish all the elements of PL §240.30(1)(a) and (b): (1) Defendant communicated with the complainant by calling her on the phone; (2) in doing so, he threatened to harm her physically by slapping her; (3) and he knew or reasonably should have known that such a threat would cause the complainant to reasonably fear that she would be physically harmed by being slapped. It remains to be seen whether this alleged conduct will ultimately rise to the level of a true threat when fully contextualized by the evidence and testimony. However, this argument is more suited to trial, when the burden of proof is beyond a reasonable doubt rather than merely a prima facie showing (People v Olivio, 6 Misc 3d 1034[A] [2005] [holding that, although the complaint alleging a phone call in which the defendant said, "If I see you with another woman I'll fuck you up" was, at best, a borderline true threat, the court could not find it incapable of rising to a true threat as a matter of law for pleading purposes and the issue was one for trial]).

As to the charge of PL §240.26(1), Harassment in the Second Degree, the Court is similarly unpersuaded by Defendant's argument. This charge has two essential elements: (1) that the defendant strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same; (2) and that the defendant does so with the intent to annoy, harass, or alarm another person. Defendant's argument focuses on the second element, namely that the complaint fails to allege that his intent was to harass, annoy, or alarm the complainant. However, Defendant's argument fails because intent to commit an offense "may be implied by the act itself, or it may be established by the defendant's conduct and the surrounding circumstances" (People v Stevens, 26 AD3d 396 [2006] [internal quotations omitted]). It is certainly reasonable to infer that Defendant's intent was to annoy, harass, or alarm the complainant when he allegedly threatened to slap her (see People v Withcliffe, 15 Misc 3d 1122[A] [2007]). The Court need not rule out a playful motive in assessing Defendant's intent for pleading purposes (People v Dumay, 23 NY3d 518, 525-526 [2014]).

Defendant's arguments that the statutes are unconstitutional as applied lacks merit. As the Court has already discussed, the Court cannot say, as a matter of law, the alleged statements do not constitute a true threat (People v Olivio, 6 Misc 3d 1034[A]). Ultimately, this question must be resolved at trial, when fully contextualized by the evidence. For the same reason, the Court [*5]declines to find the language of PL §240.26(1) unconstitutionally vague, as true threats are not protected speech (People v Dietze, 75 NY2d 47).

It is undisputed that Defendant was arraigned on December 29, 2023. The Prosecution's SSI properly converted the accusatory instrument to a facially sufficient information, and their SOR was sufficient to stop the speedy trial clock on March 7, 2024.^[FN1] The Prosecution is charged sixty-nine days. Because the Prosecution has not exceeded their ninety-day limit, Defendant's motion to dismiss is denied (CPL §30.30[1][b]).

This constitutes the decision and order of the Court.