Defendant moves for an order of dismissal on speedy trial grounds alleging that the accusatory instrument is facially insufficient as to several counts and omissions in the Prosecution's automatic discovery render their Certificate of Compliance (COC) and Statement of Readiness (SOR) illusory.

The Prosecution opposes.

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

This case commenced with the filing of an accusatory instrument on March 11, 2024. Defendant was arraigned on a misdemeanor complaint charging PL §215.50(3), Criminal Contempt in the Second Degree and related charges on March 12. On April 24, the Prosecution served some initial discovery. On May 1, the Prosecution served and filed a supporting deposition. On June 6, the Prosecution served and filed a COC, SOR, and Notice and Disclosure Form (NDF). On July 16, Defendant, through counsel, emailed the Prosecution a list of purported missing discovery. Defendant filed the instant motion on August 8, 2024.

Defendant argues that the accusatory instrument is facially insufficient as to several charges: Criminal Contempt in the Second Degree, Harassment in the Second Degree, Aggravated Harassment in the Second Degree, and Menacing in the Third Degree (PL §§ 215.50[3], 240.26[1], 240.30[1][a], 240.30[1][b], and 120.15). Defendant advances the following specific arguments as to the charges. As to PL §215.50(3), the accusatory instrument fails to allege upon what basis the complainant knew Defendant knocked on her door. As to both counts of PL §240.20(1), it fails to allege any threat of, attempted, or actual physical contact; as to one of the counts, it fails to allege how the complainant knew it was Defendant who sent her the text message. As to both PL §§ 240.30(1)(a) and (b), it is insufficient because it does not allege that Defendant made a threat to cause physical harm. Finally, as to PL §120.15, Defendant argues it [*2]is facially insufficient because it contains no allegation of physical harm or imminent serious injury.

Defendant also argues that the Prosecution's failure to disclose the following items of automatic discovery renders their COC and SOR illusory: audit trails, Internal Affairs Bureau (IAB) logs, and body-worn camera footage (BWC) showing Defendant's arrest.

The Prosecution argues their COC and SOR were filed in good faith and valid under CPL §245.50. They concede that the count of PL §120.15 is facially insufficient, but argue the remaining charges are all facially sufficient. Despite this concession, they attest that their CPL §30.30(5-a) certification was made in good faith and therefore has no bearing on the validity of the SOR. They argue that neither audit trails nor IAB logs are subject to automatic discovery. However, should the Court disagree, they argue they had a good faith legal basis upon which to conclude they were not. The Prosecution asserts that the BWC Defendant requests does not exist.

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 criminal contempt in the second degree when he engages in . . . intentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of a labor dispute as defined by [JL §753(A)(3)]" (PL §215.50[3]).

"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" (PL §240.26[1]).

"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 [*3]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) (PL §240.30[1]).

"A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places another or attempts to place another person in fear of death, imminent serious physical injury or physical injury" (PL §120.15).

Pursuant to the automatic discovery provisions of CPL §245.20(1), the prosecution is required to disclose to the defendant, without motion, a list of enumerated items. Disclosure under this section is limited to "all items and information that relate to the subject matter of the case and are in possession, custody or control of the prosecution or persons under the prosecution's direction and control" (CPL §245.20[1]).

Once such disclosure is made, the prosecution must certify compliance with these discovery obligations by the service and filing of a COC (CPL §245.50[1]). The statute further provides that "[n]o adverse consequences to the prosecution . . . shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in 245.80 of this Article" (Id.).

Pursuant to CPL §30.30(1)(b), the prosecution must declare trial readiness within ninety 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 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).

Defendant is alleged to have committed several offenses on two separate occasions. The factual portion of the accusatory instrument makes the following specific allegations.

On November 4, 2023, at 10:35 a.m., Defendant sent a text message to the complainant's phone stating, in sum and substance, "your [sic] gonna get what's coming to you" and that such conduct caused the complainant to become alarmed and annoyed.

On December 20, 2023, at 7:00 a.m. at the complainant's residence, Defendant knocked on the complainant's door and rang the complainant's doorbell, and that such actions caused the [*4]complainant to become alarmed and annoyed.

The accusatory instrument further states that Defendant's conduct on both occasions was in violation of an order of protection issued by a judge of the Kings County Family Court on October 6, 2023, in effect until April 5, 2024. The order of protection forbids Defendant from having contact with the complainant, aside from court-ordered parenting time. Defendant had knowledge of the order of protection because he was present when it was issued, and it was personally served upon him in court.

The Court finds that the charge of PL §215.50(3), Criminal Contempt in the Second Degree is facially sufficient.^[FN1] Defendant's argument that the accusatory instrument is deficient because it does not state how the complainant knew it was Defendant who knocked and rang the doorbell is meritless.

The essential elements of PL §215.50(3) are that (1) a clearly communicated, lawful court order was in effect, (2) of which the defendant had knowledge of the provisions, and (3) that the defendant intentionally disobeyed it (see McCormick v Axelrod, 59 NY2d 574 [1983]). For pleading purposes, the accusatory instrument need only state "facts of an evidentiary character" that "establish, if true, every element of the offense charged" (CPL §§ 100.15[3], 100.40[1]). A prima facie case need not rise to the level of proof beyond a reasonable doubt (People v. Smalls, 26 NY3d 1064, 1066 [2015]).

Taking all allegations as true, the accusatory instrument makes out a prima facie case: (1) there was a lawful order of protection ordering Defendant to stay away from the complainant (2) which was executed in Defendant's presence and personally served upon Defendant in Family Court, and (3) which Defendant violated by going to the complainant's residence, knocking on her door, and ringing her doorbell. Defendant has sufficient notice of the conduct for which he is charged such that he can prepare a defense (People v. Casey, 95 NY2d 354, 360 [2000]). Indeed, Defendant's argument is essentially the groundwork for a defense, questioning the complainant's credibility and his own identity as the perpetrator. These issues are best suited for trial, not a challenge to the pleadings. Thus, the charge is facially sufficient.

The Court finds that both counts of PL §240.26(1), Harassment in the Second Degree, and the single count each of PL §§ 240.30(1)(a) and (b) are facially insufficient. Defendant correctly argues that the lack of any threatened, attempted, or actual physical contact is fatal to the pleading.

For the alleged text message on November 4, Defendant is charged with one count of PL §240.26(1), one count of PL §240.30(1)(a), and one count of §240.30(1)(b).

For allegedly coming to the complainant's residence, knocking on her door, and ringing her doorbell on December 20, Defendant is charged with one count of §240.26(1).

PL §240.26(1) 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.

The essential elements are of PL §240.30(1)(a) and (b) 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.

The Court of Appeals has consistently ruled that "prohibitions of pure speech must be limited to communications that quality as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct" (People v Marquan M., 24 NY3d 1, 7 [2014]; People v Dietze, 75 NY2d 47 [1989]; People v Lagano, 39 NY3d 108, 112 [2022]). To move beyond what is constitutionally protected, a threat must have some demonstration of seriousness to show it is more than a crude outburst (People v Dietze, 75 NY2d at 53-54). "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 at 112).

Turning first to the allegations pertaining to November 4, Defendant's alleged text message saying "Your [sic] gonna get what's coming to you" is a far cry from fighting words, a true threat, or a statement integral to criminal conduct such that a reasonable person in the complainant's position could consider it an unequivocal statement of intended harm. It is wholly unspecific: it does not refer to any specific harm or action, much less that Defendant will, himself, do anything. This is plainly constitutionally protected speech and falls woefully short of a prima facie case of Harassment in the Second Degree or Aggravated Harassment in the Second Degree (PL §§ 240.26[1], 240.30[1][a], 240.30[1][b]) (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 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]; 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]; People v Gibbs, 50 Misc 3d 1202[A] [2015] [finding speech alone insufficient to sustain charges of PL §240.30(1) and PL §240.26 because it did not constitute a true threat]).

Turning to the second alleged incident on December 20, in which Defendant is accused of approaching the complainant's door, knocking, and ringing the doorbell, there is simply no threat or actual contact for the Court to evaluate. It is patently absurd to suggest as the Prosecution does that the conduct of knocking on a door and ringing a doorbell could be interpreted as a threat of physical contact. To deem this charge facially insufficient is an understatement.

It is undisputed that the charge of PL §120.15, Menacing in the Third Degree is facially insufficient. As the parties agree, the Court need not discuss its reasoning.

The Court finds that the Prosecution's COC was filed in good faith after exercising due diligence and is therefore valid under CPL §245.50.

Although no appellate authority yet exists clarifying whether audit trails are subject to automatic discovery, the Court is informed by the fact-finding hearing conducted in Queens County in the case of People v Ballard (82 Misc 3d 403 [2023]). At the hearing, Allison Arenson, Executive Agency Counsel and Director of the New York City Police Department (NYPD) BWC Unit Legal Bureau testified extensively about the nature, classification, and maintenance of BWC audit trails, according to established NYPD procedure. Ms. Arenson pointed to the NYPD Patrol Guide Section 212-213, which dictates procedures for using BWC, including when officers must activate them, when and how officers upload footage, how officers tag and categorize footage from a drop-down menu according to what is depicted, how officers can add their own freeform description and notes, and how officers share this information with prosecutors. Specifically, Ms. Arenson discussed how two categories of audit trails, "device" and "evidence" require input from officers.

CPL §245.20(1) requires that the prosecution disclose all information in their possession, custody, or control that is related to the subject matter of the case. The audit trails are statutorily in the Prosecution's possession (CPL §245.20[2]). Ms. Arenson's testimony makes abundantly clear that BWC audit trails meet this definition, as they contain information about the BWC created during this case (People v Ballard, 82 Misc 3d 403 [2023]). Conversely, if an officer fails to create audit trails, evidence thereof constitutes impeachment material, as it would represent a departure from NYPD Patrol Guide directives (Ballard, 82 Misc 3d 403). CPL §245.20(1)(k)(iv) requires disclosure of impeachment materials for testifying prosecution witnesses. Whether by virtue of their existence or their absence, the Court finds that "device" and "evidence" BWC audit trails are subject to automatic discovery (CPL §245.20[1]; Ballard, 82 Misc 3d 403; People v Lyte, 2024 NY Slip Op. 50655[U]). However, given that this an evolving area of understanding and no conclusive appellate authority exists, the Prosecution's statutory interpretation to the contrary was reasonable. They are ordered to disclose the audit trails within thirty days (CPL §245.20[1]).

As to Defendant's request for IAB logs, the Court is bound by recent binding authority which holds that such materials are not subject to automatic discovery because they are not related to the subject matter of the case (People v Earl, 2024 NY Slip Op. 24237).

Finally, the Court credits the Prosecution's assertion that no BWC depicting Defendant's arrest exists. The Prosecution cannot disclose that which does not exist.

This case commenced with the filing of an accusatory instrument on March 11, 2024, thereby starting the speedy trial clock. The Prosecution filed a valid SOR and COC on June 6, 2024, despite the inaccurate CPL §30.30(5-a) certification (People v Williams, 83 Misc 3d 21 [2024]). The Prosecution is charged eighty-seven days.

Because the Prosecution has not exceeded their ninety-day speedy trial limit, Defendant's motion to dismiss is denied (CPL §30.30[1][b]).

This constitutes the decision and order of the Court.