People v Austin

Justice Court of the Town of Somers, Westchester County

Decided on March 23, 2026

Docket No. 25-060001

Joseph A. Marra, J.

MOTION TO DISMISS

Materials and Evidence Considered

1. Notice of Motion and Affirmation William B. Fleming, Esq., received and filed with the Clerk of the Somers Justice Court on December 1, 2025.^FN1

2. People's Affidavit in Opposition signed by ADA Daasebre Asante, Memorandum of Law, and accompanying exhibits that were received and filed with the Clerk of the Somers Justice Court on December 15, 2025 ^FN2; and

3. Reply Affirmation of William B. Fleming, Esq., and related exhibits that were received and filed with the Clerk of the Somers Justice Court on January 12, 2026.

BACKGROUND

Defendant brings a motion to dismiss the two (2) misdemeanor informations in this criminal proceeding that arose out of an incident that occurred at approximately 5:25 PM on May 29, 2025.

It is alleged that the defendant texted his brother's former spouse, the complaining witness, photographs of her that were allegedly taken without her knowledge or consent, along with various text messages that are at times insulting, threatening, accusatory, defiant, and incomprehensible. Copies of the photographs and text messages are annexed to the prosecution's [*2]"Affidavit" in Opposition as Exhibit 3.^FN3

The defendant was subsequently charged with the misdemeanor of Stalking in the 4th Degree, a violation of Penal Law section 120.45(1), a Class B Misdemeanor, and Aggravated Harassment in the 2nd Degree, a Class A Misdemeanor, in violation of Penal Law section 240.30(2).

The case was before this court approximately nine (9) times between May 29, 2025, and November 3, 2025. The prosecution filed a Certificate of Compliance on December 19, 2025. On November 3, 2025, a motion schedule was set at the defense's request.

As stated above, this Court received a Notice of Motion on December 1, 2025. The moving papers requested that the accusatory instruments be dismissed for insufficiency, or, alternatively, that evidence be precluded at trial. Opposition papers and a Reply Affirmation were subsequently filed, and submissions were deemed complete on January 12, 2026.

DECISION SUMMARY

This Court finds that the People have failed to properly establish that the alleged criminal acts at issue occurred within the boundaries of the Town of Somers, within the meaning of Criminal Procedure Law sections 20.40, 20.50, and, in particular, CPL 20.60, which relates to telecommunication. As such, this Court must dismiss the two (2) misdemeanor informations.

DISCUSSION

In determining whether the Court has jurisdiction over the matter, the Court first must examine the accusatory instruments. Said accusatory instruments must contain non-hearsay allegations establishing every element of the offense before the Court considers the issue of its jurisdiction. CPL 100.15 (3), CPL 100.40(1)(c). See also CPL 170.30,

(Grounds for Dismissal of an Information) and CPL 170.35 (procedural requirements)

The accusatory instrument must contain the name of the court and the title of the action, be properly executed, and must allege the offense charged, and must contain a first-party statement of the conduct constituting the offense. See CPL 100.35. The first party statement need not be contained in the criminal complaint if it is properly supported by a supporting deposition. See CPL 100.20.

The People have the burden of proof by a preponderance of the evidence to show that the Town of Somers is the proper venue. They can show this by proving that the crime was committed in the Town of Somers or that an exception applies. People v. Ribowsky, 77 NY2d [*3]284, 567 NYS 2d 392 (1991).^FN4

In this case, both accusatory instruments are executed by a New York State Trooper and contain hearsay allegations. For both accusatory instruments to be deemed valid, the hearsay allegations set forth by the Trooper must be supported by a supporting deposition from the alleged victim of the crimes, which corroborates the hearsay allegations set forth in the complaints as to every element of the alleged criminal conduct.

For this court to have jurisdiction over the matter, one or more of the following criteria had to be met:

1. The criminal conduct had to take place within the borders of the Town of Somers, see CPL 20.40 and CPL 20.50 (1); or

2. The criminal conduct had to take place within 100 yards of the boundary lines of the Town of Somers, see CPL 20.50 (2); or

3. The criminal conduct had to take place on a common carrier that traveled within the Town of Somers, see CPL 20.40 (4), or

4. The criminal conduct had to be engaged in through telecommunications, which occurred within the boundaries of the Town of Somers, see CPL 20.60.

The People have the burden of proving that the alleged victim viewed the defendant's electronic communications within the Town of Somers, see People v. Hurd, 162 AD3d 551, 80 NYS 3d 25 (1st Dept 2018), or that the criminal communications originated within the Town of Somers, see People v. Stewart, 20 AD3d 769, 798 NYS2d 570 (3d Dept 2005). See also People v. Cullen, 50 NY2d 168, 428 NYS2d 456 (1980), where it was held that CPL 240.40(1)(a) could not supply a predicate for jurisdiction for the crime of criminal possession of a controlled substance on the theory that knowledge occurred in one county, and possession occurred in another county.

The complaint, in which the misdemeanor of Aggravated Harassment in the 2d degree is charged, states that the complaining witness was at the CVS pharmacy in the Town of Somers when she received threatening text messages and photographs of herself. The complainant states in the supporting deposition that the photographs of her were taken when she was at Target in Mount Kisco, Westchester County, New York. No connection to the Town of Somers is made in the complaint. This defect is not corrected by the supporting deposition's allegations.

In other words, there is nothing in the supporting deposition to establish that the origin or the receipt of the telecommunications was shown to have occurred in Somers. The supporting [*4]deposition signed by the complainant fails to state where she was when she viewed the text messages and the accompanying photographs. The Trooper's hearsay assertion about the CVS location cannot alone establish jurisdiction because the complainant's own supporting deposition does not corroborate that specific fact.

There are two (2) boxes at the top of the supporting deposition, one of which indicates "Location of Incident" and one which indicates "Location of Deposition." These boxes on the form do not provide sufficient clarity as to where the complaining witness was when she received the disturbing electronic communications.

The complaint, which alleges that the defendant engaged in the misdemeanor of Stalking in the Fourth Degree, states that the stalking occurred not in the Town of Somers but in the Village of Mount Kisco. This defect is not remedied by the supporting deposition of the complainant.

The complaints are being dismissed without prejudice. The defense did not address the issue of whether the statutory speedy trial provisions of CPL 30.30, or the applicable statute of limitations, would bar the refiling of either charge with an appropriately drafted accusatory instrument and/or whether one or both of the informations could be filed in the Village of Mount Kisco. This court refrains from addressing these issues on its own.

As this court is dismissing the informations, the issue of whether evidence should be precluded at trial is moot and need not be addressed.

SUMMARY

The accusatory instruments, combined with the allegations in the supporting deposition, do not contain sufficient evidence to establish that the crimes took place in the Town of Somers.

The instant motion to dismiss is granted, without prejudice.

The foregoing constitutes the opinion, decision, and Order of the Court and is hereby So Ordered:

Dated: March 23, 2026

Somers, New York

HON. JOSEPH A. MARRA

Town Justice