Opinion
2015BX011986
04-15-2015
The People of the State of New York, v. Diana Delarosa, Defendant.
Robert T. Johnson District Attorney Bronx County 198 East 161st Street Bronx, NY 10451 By: Assistant District Attorney Elaine M. Driscoll Defendant's Attorney The Bronx Defenders 360 East 161st Street Bronx, NY 10451 By: V. Marika Meis, Esq.
Robert T. Johnson
District Attorney
Bronx County
198 East 161st Street
Bronx, NY 10451
By: Assistant District Attorney Elaine M. Driscoll
Defendant's Attorney
The Bronx Defenders
360 East 161st Street
Bronx, NY 10451
By: V. Marika Meis, Esq.
Carol Sharpe, J.
The defendant is seeking dismissal of the information on facial sufficiency grounds, or alternatively omnibus relief. The People filed written opposition. The defendant's motion is granted in part and denied in part.
The defendant was arrested on March 12, 2015, and charged with aggravated harassment in the second degree, PL §§ 240.30(1)(a) and (b) and harassment in the second degree, PL §240.26(1). The information alleges that the defendant called the complainant's cellular phone on February 27, 2015, in Bronx County, and told the complainant "you have HIV and you're going to die soon. I'm going to kill you and your family," causing the complainant to experience annoyance, alarm and fear for her physical safety.
A facially sufficient accusatory instrument must satisfy the requirements of CPL §100.40(1)(a-c) which provides that an information, or a count thereof, is sufficient on its face when: (1) it substantially conforms to the requirements prescribed in section 100.15; (2) the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (3) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.
Allegations are sufficient for pleading purposes where they provide adequate notice to enable a defendant to prepare a defense and protect against double jeopardy. People v. Kasse, 22 N.Y3d 1142, 7 N.E.3d 500, 984 N.Y.S.2d 287 (2014). Conclusory allegations render an accusatory instrument facially insufficient. People v. Dumas, 68 NY2d 729, 731, 497 N.E.2d 686, 506 N.Y.S.2d 319 (1986); People v. Alejandro, 70 NY2d 133, 136, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1986). The information should be given a "fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360, 740 N.E.2d 233, 717 N.Y.S.2d 88 (2000). "[T]he prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Henderson, 92 NY2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 (1999); People v. Allen, 92 NY2d 378, 385, 703 N.E.2d 1229, 681 N.Y.S.2d 216 (1998). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10, 792 N.Y.S.2d 764 (2nd Dept. 2005), lv. denied, 4 NY3d 857, 830 N.E.2d 330, 797 N.Y.S.2d 431 (2005).
Motion to Dismiss PL § 240.30(1)(a) : Denied
PL § 240.30(1)(a), as amended by the New York State legislature in July 2014, states "that a person is guilty of aggravated harassment in the second degree when (1) with intent to harass another person, the actor either: (a) communicates, anonymously or otherwise, by telephone, ...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...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."
"[I]t is well established that prohibitions of pure speech must be limited to communications that qualify 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, 994 N.Y.S.2d 554, 9 N.E.3d 480 (2014). Speech which "presents a clear and present danger of some serious substantive evil" may be penalized. People v. Dietze, 75 NY2d 47, 51, 549 N.E.2d 1166, 550 N.Y.S.2d 595 (1989); People v. Wilson, 59 AD3d 153, 154, 872 N.Y.S.2d 124 (1st Dept. 2009), aff'd, 14 NY3d 895, 931 N.E.2d 69, 905 N.Y.S.2d 100 (2010). Whether the speech is constitutionally protected or is a "genuine threat" or a "true threat" is a question of law for the court to decide. United States v. Francis, 164 F.3d 120, 123 (2nd Cir. 1999). "Genuine threats" are more than outbursts, they are "either serious, should reasonably have been taken to be serious, or was confirmed by other words or acts." Dietze, 75 NY2d at 53-54.
"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 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). "The prohibition of true threats is grounded in the State's legitimate interests in protecting its citizens from the fear of violence, the disruption it engenders, and from the possibility that such threats of violence will be carried out." People v. Prisinzano, 170 Misc 2d 525, 535, 648 N.Y.S.2d 267 (Crim. Ct. NY Co. 1998). Genuine and true threats may be made over the telephone and the intent to carry out the threat is not a necessary element. Id. The People do not have to prove that the defendant subjectively intended the communication to convey a true threat, Francis, 164 F.3d at 123; People v. Bonitto, 4 Misc 3d 386, 389, 777 N.Y.S.2d 900 (Crim. Ct. NY Co. 2004), they need only demonstrate that the defendant's intent was "to place the addressee in fear that the threat was a serious one." Prisinzano, 170 Misc 2d at 535. "Whether the defendant's alleged statement reasonably was perceived by the complainant as a true threat of harm or was merely an outburst of frustration and anger not likely to instill fear is an issue for the jury." People v. Hernandez, 7 Misc 3d 857, 861, 795 N.Y.S.2d 862 (2005).
An accusatory instrument is facially sufficient where the defendant's "telephone call to the victim contained a death threat that placed the victim in reasonable fear for her safety." People v. Thomas, 58 AD3d 445, 446, 871 N.Y.S.2d 95 (1st Dept. 2009)), lv. denied, 12 NY3d 788 (2009). It was also found to be facially sufficient where the defendant called the complainant and said "who are the women?" and "if I see you with another woman I'll fuck you up." People v. Olivio, 6 Misc 3d 1034(A), 800 N.Y.S.2d 353 (Crim. Ct. NY Co. 2005).
Here, the defendant called the defendant on her cellular phone and said, "you have HIV and you're going to die soon. I'm going to kill you and your family." While the defendant's first sentence to the complainant could reasonably be viewed as an outburst, this Court cannot find that as a matter of law this statement, "I'm going to kill you and your family," does not constitute a true threat. Id; Hernandez, 7 Misc 3d at 861.
Accordingly, the branch of the defendant's motion seeking dismissal of the count of aggravated harassment in the second degree, PL § 240.30(1)(a) is denied as the accusatory instrument is facially sufficient.
Motion to Dismiss PL § 240.30(1)(b): Granted
PL § 240.30(1)(b) states that "a person is guilty of aggravated harassment in the second degree when (1) with intent to harass another person, the actor (b) causes a communication to be initiated 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, a member of such person's same family or household...." William C. Donnino, Supplementary Practice Commentary (McKinney's Cons. Laws of NY, Book 39, PL § 240.30(1)(b), 2015, Supp Pamphlet at 45) explains that PL § 240.30(1)(b) was also amended and "only differs from subdivision (a) in that the actor causes a communication to be initiated,' rather than communicating same himself or herself." Here, the information alleges that the defendant was the one who made the phone call to the complainant and not that she caused the call to be initiated. Accordingly, the branch of the defendant's motion seeking dismissal of the count charging her with aggravated harassment in the second degree, PL § 240.30(1)(b) is granted.
Motion to Dismiss PL § 240.26(1): Denied
PL § 240.26(1) states that 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 attempt or threatens to do the same."
True threats are sufficient for pleading purposes and "[o]nce, as herein, a defendant's words have been demonstrated to meet the elements of a proscribable classification of speech, an accusatory instrument based upon those utterances should not be dismissed, as a full examination of the circumstances surrounding the utterance is a question best left to the jury." Prisinzano, 170 Misc 2d at 539. Here, the charge of PL § 240.26(1), harassment in the second degree, is facially sufficient. The information alleges that the defendant told the complainant that she was going to kill the complainant and the complainant's family, and as a result, the complainant feared for her safety and felt alarmed.
Accordingly, the branch of the defendant's motion seeking dismissal of the harassment in the second degree charge, PL § 240.26(1) is denied.
The defendant's application for Huntley/Dunaway/Payton pre-trial hearings is granted.
The defendant's Sandoval/Ventimiglia application is referred to the trial court.
This constitutes the Decision and Order of this Court.
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CAROL R. SHARPE, J.C.C.
Dated:April 15, 2015
Bronx, NY