Opinion
No. 2014NY013964.
09-12-2014
The PEOPLE of the State of New York, Plaintiff, v. Beverly NECO, Defendant.
New York County Defender Services by Christopher W. Boyle, Esq, for the Defendant. Cyrus R. Vance, Jr., New York County District Attorney, by ADA Bryan Connor, for the People.
New York County Defender Services by Christopher W. Boyle, Esq, for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Bryan Connor, for the People.
Opinion
STEVEN M. STATSINGER, J.
Defendant, charged with Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(2), moves to dismiss, claiming that the People improperly superseded and that, alternatively, the Information is facially insufficient. For the reasons that follow, the motion to dismiss is DENIED.
Effective July 23, 2014, § 240.30(2), was amended. The motion is addressed to the pre-amendment version.
In deciding this motion, the Court has considered defendant's motion papers, the People's opposition and the relevant statutes and cases.
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I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, defendant telephoned the complainant, her aunt, three times on a single day. In each call, defendant threatened to harm the complainant or her family.
B. Legal Proceedings
Defendant was arraigned on February 21, 2014, on a Misdemeanor Complaint that charged her with one count of Aggravated Harassment in the Second Degree, in violation of Penal Law §§ 240.30(1)(a). The Court set bail and adjourned the case for conversion.
On February 26, 2014, People filed the Supporting Deposition of the complainant. Defendant ultimately posted bail and, after motion practice, the Court ordered a Huntley/Dunaway hearing. On June 9, 2014, the People orally moved to add one count of Penal Law § 240.30(2) and to dismiss the count charging the defendant with violating § 240.30(1)(a), in light of People v. Golb, ––– N.E.3d ––––, 23 N.Y.3d 455, 2014 WL 1883943 (2014), which held that § 240.30(1)(a) is unconstitutional. The Court granted both motions.
Defendant filed the instant motion to dismiss on July 25, 2014. The People responded On August 18, 2014, and the matter has been sub judice since then.
II. THE ACCUSATORY INSTRUMENT
The Misdemeanor Complaint, sworn out by Detective Ronald Bronaugh on February 20, 2014, provides as follows:
I am informed by Kayla Rodriguez ... that on or about February 16, 2014, at approximately 1:31 am, while in her apartment [in New York County], Ms. Rodriguez received a phone call from the defendant in which she said in substance “I'm going to hurt you and your family.”
I am further informed by Ms. Rodriguez that on or about February 16, 2014, at approximately 3:05 pm, Ms. Rodriguez received a call from the defendant in which she stated in substance, “I'll shoot you and your daughter.”
I am further informed by Ms. Rodriguez that on or about February 16, 2014, at approximately 3:21 pm, while inside the 20th [P]recinct [in New York County], she received a phone call from the defendant in which she stated, in substance, “I'll rag you.”
I am further informed by Ms. Rodriguez that she recognized the caller's voice to be that of the defendant.
These allegations were corroborated by Supporting Deposition from Ms. Rodriguez dated February 24, 2014.
III. DISCUSSION
A. Penal Law § 240.30(2) Was Properly Added
Defendant first claims that the People improperly filed a superseding information in this case, in violation of CPL § 170.65(2). However, the factual premise of this argument is incorrect. The People did not supersede here, they amended. Specifically, they moved to add one count of Penal Law § 240.30(2), then moved to dismiss the count charging § 240.30(1)(a). Given this, the Court will treat defendant's motion as one asserting that the § 240.30(2) count was improperly added.
Criminal Procedural Law § 100.45(3) permits the amendment of the accusatory part of an accusatory instrument prior to trial or the entry of a guilty plea “by addition of a count charging an offense supported by the allegations of the factual part of such information and/or any supporting depositions which may accompany it.” That is what occurred here. And, since outlined below, the facts alleged in the instrument make out a facially sufficient prima facie case of a violation of § 240.30(2), that charge was properly added.
B. The Information is Facially Sufficient
The allegation that defendant repeatedly telephoned the complainant and threatened to harm her and her family makes out a facially sufficient prima facie case of a violation of § 240.30(2).
1. Facial Insufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, –––N.Y.3d ––––, 2014 WL 2515692 (June 5, 2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S.2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 N.Y.3d 225, 228–29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as “the prima facie case requirement.” Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information need only contain allegations of fact that “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a “fair and not overly restrictive or technical reading,” id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 N.Y.3d 738, 747, 944 N.Y.S.2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d at 91, 740 N.E.2d at 236.
Under these standards, the Information here is facially sufficient.
2. The Allegation of Repeated Threatening Calls to the Complainant Makes Out a Violation of § 240.3(2)
The version of 240.30(2) applicable here made it a Class A Misdemeanor to, “with intent to harass, annoy, threaten or alarm another person,” make “a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.” This section criminalizes those telephonic communications that lack any “expression of ideas or thoughts other than threats and/or intimidating or coercive utterances.” People v. Shack, 86 N.Y.2d 529, 538, 658 N.E.2d 706, 712, 634 N.Y.S.2d 660, 666 (1995). Indeed, the phrase “no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten.” People v. Stuart, 100 N.Y.2d 412, 428, 797 N.E.2d 28, 41, 765 N.Y.S.2d 1, 14 (2003).
Determining whether an information charging a violation of § 240.30(2) sufficiently pleads the “no legitimate purpose” element requires an examination of the context, timing and number of telephone calls, their content, if any, and whether those calls continued after a demand that they cease. See People v. Mitchell, 24 Misc.3d 1249(A), 899 N.Y.S.2d 62 (Crim Ct Bronx County 2009) (information facially sufficient; defendant called complainant 45 times in a single day, and left 10 threatening messages); People v. Bamba, 15 Misc.3d 1122(A), 841 N.Y.S.2d 220 (Crim Ct New York County) (2007) (three calls to complainant made early in the morning and late at night on same day that complainant told him not to call made out prima facie case that calls lacked legitimate purpose); People v. Coyle, 186 Misc.2d 772, 719 N.Y.S.2d 818 (Dist Ct Nassau County 2000) (repetition and tone of calls, and fact that they continued after complainant told defendant to stop, sufficiently pleads the “no legitimate purpose” element); cf. People v. Thompson, 28 Misc.3d 483, 905 N.Y.S.2d 449 (Crim Ct Kings County 2010) (information that simply alleged that defendant repeatedly called complainant during a range of dates was insufficient; no allegation as to the number of calls, their frequency or timing, or that complainant told defendant to stop). Here, based on the timing, frequency and content of the calls, the Information makes out a prima facie case that defendant placed the calls to the complainant with no legitimate purpose other than to threaten her. Defendant called the complainant three times on the same day, and each call contained a threat of harm to the defendant or her family. One of the calls occurred in the middle of the night, while the other two occurred within minutes of each other later that same afternoon. The Court also notes the impact that these calls had on the complainant. The last of the calls came less than twenty minutes after the second, and the complainant received it while at a police precinct. There is a reasonable inference that the complainant was in the precinct so that she could file a police report about the defendant's recent behavior. In their totality, then, these facts make out a prima facie case of a violation of § 240.30(2).
Finally, the Court agrees with the People that this case is highly similar to People v. Liberato, 180 Misc.2d 199, 689 N.Y.S.2d 363 (Crim Ct N.Y. County 1999), where an Information alleging five threatening calls over a four-day period made out a prima facie case under § 240.30(2). There, as here, the “statements alleged in the ... accusatory instrument appear ato contain only threats and intimidating utterances.” Id. Accordingly, here, as in Liberato, the Information is facially sufficient.
C. Conclusion
The Count alleging a violation of § 240.30(2) was properly added, and the Information is facially sufficient. The motion to dismiss is accordingly denied.
III. Conclusion
The motion to dismiss is denied.
This constitutes the Decision and Order of the Court.