Opinion
No. 2015NY057707.
12-21-2015
The PEOPLE of the State of New York, Plaintiff, v. Gabriel ROMERO, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by: A.D.A. James Bergamo, for People. New York County Defender Services, by Larry Spollen, Esq., for Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by: A.D.A. James Bergamo, for People.
New York County Defender Services, by Larry Spollen, Esq., for Defendant.
STEVEN M. STATSINGER, J.
Defendant, charged with one count of stalking in the fourth degree, Penal Law § 120.45(1), moves to dismiss for facial insufficiency. Defendant's motion to dismiss is GRANTED, with leave to supersede. Sealing is stayed for 30 days.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on September 3, 2015, defendant came to the apartment building where the complainant, defendant's mother, resides. A police officer encountered him there, in the mother's presence. According to the mother, defendant frequently comes to her residence and this, based on defendant's past behavior, has caused her to fear for her safety.
B. Legal Proceedings
Defendant was arraigned on September 5, 2015, on a misdemeanor complaint charging him with stalking in the fourth degree under Penal Law § 120.45(1). The Court set bail and adjourned the case for conversion. On September 10, 2015, the People filed the necessary supporting deposition.
Defendant filed this motion to dismiss on October 20, 2015, and the Court directed the People to respond by November 9, although they elected not to. The matter has been sub judice since then.
II. THE INFORMATION
The misdemeanor complaint, sworn out by a police officer, provides that
I am informed by [the complainant] that the defendant appeared at her building on September 3, 2015.
I observed the defendant inside the courtyard of the [complainant's residence] in the presence of [the complainant.]
I am further informed by [the complainant] that the defendant continually shows up at her residence ... and that the defendant's repeated presence places [the complainant] in fear based on her knowledge of the defendant's previous behavior.
The filing of the complainant's supporting deposition converted the misdemeanor complaint into an information.
III. DISCUSSION
Defendant argues that the information fails to make out a prima facie case as to several elements of Penal Law § 120:45(1): the "no legitimate purpose" element, the "course of conduct" element, and the knowledge element. The Court agrees that the information, as currently styled, does not sufficiently plead the knowledge element and the "no legitimate purpose element." The Court accordingly grants the motion to dismiss, with leave to supersede.
A. The Knowledge Element Is Insufficiently Pled
Stalking in the fourth degree, under Penal Law § 120.45(1), occurs when a person, as pertinent here, "intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct ... is likely to cause reasonable fear of material harm to the physical health, safety or property of such person."
This statute requires that the defendant have either actual or constructive knowledge that his behavior will cause the victim to fear "material harm" to one of the specified interests. People v. Selinger, 48 Misc.3d 1218(A) (Crim Ct N.Y. County 2015). However, obnoxious but non-threatening behavior does not, by itself, ordinarily suggest that the defendant had the requisite knowledge. Id., citing People v. Lewis, 29 Misc.3d 978, 909 N.Y.S.2d 321 (Crim Ct N.Y. County 2010).
Rather, for an information charging a violation of § 120.45(1) to sufficiently allege the knowledge element, the conduct must contain at least an implied threat of danger. For example, in People v. Paes, 17 Misc.3d 1120(A), 851 N.Y.S.2d 65 (Crim Ct N.Y. County 2007), the defendant mailed letters to the complainant that included bizarre religious rants and references to "Satan," "Madonna, "Jesus" and "Hitler." One letter contained a nude picture of the defendant, and warned "Joe's next," where the complainant was named Joseph. That court noted: "While the communication may not represent an overt and clearly stated threat, it is clear to this court that the inference is sufficient to convey the threat." Id .
An implied threat can derive from a variety of factors beyond the defendant's words; among them are physical proximity or trespass. In People v. Walcott, 47 Misc.3d 1217, 16 N.Y.S.3d 794 (Crim. Ct. N.Y. County 2015), for example, this Court found the knowledge element satisfied in a case where the complainant observed the defendant sitting on her fire escape staring in at her through the window: "Any reasonable person would understand that repeatedly mounting someone else's fire escape and staring at that person through the window would be likely to cause reasonable fear of material harm to the physical health, safety or property of such person."
Similarly, in People v. E.P., 20 Misc.3d 1119(A), 867 N.Y.S.2d 19 (Crim Ct N.Y. County 2008), the defendant bombarded a celebrity with unsolicited communications and in-person visits. The court noted that "defendant should have reasonably known that his actions were likely to cause [reasonable fear]. The defendant is neither acquaintance nor colleague to the complainant; and the objectives allegedly stated in defendant's communications would tend to indicate an interest in the complainant that was well on its way to becoming the kind of obsession that can only lead to more problems and possible danger."
An implicit threat—and hence the requisite knowledge—can also be reasonably inferred from facts suggesting that the defendant has threatened the complainant in the past, even if the current conduct is not threatening. There is, therefore, a reasonable inference of the requisite knowledge where the otherwise nonthreatening stalking violates an order of protection. For example, in People v. Kelly, 44 Misc.3d 1203(A), 997 N.Y.S.2d 100 (Crim Ct N.Y. County 2014), the knowledge element was sufficiently pled because the defendant repeatedly followed the complainant in public, in violation of an order of protection. "Since the defendant knew that the complainant had been sufficiently concerned about her behavior to appear in Family Court and obtain an Order of Protection against her, there is a reasonable inference ... that she knew that her actions would cause the complainant to fear that he would be harmed." See also People v. Tyrrell, 44 Misc.3d 1211(A), 997 N.Y.S.2d 669 (Poughkeepsie City Court 2014) (knowledge element made out where defendant placed a GPS device on complainant's car, in violation of an order of protection, which enabled him to track her movements and take pictures of her and her children.)
As this Court has noted, however, "this Court simply cannot locate any reported decision sustaining the knowledge element of § 120.45(1) on facial sufficiency review with conduct that is annoying, even seriously annoying, that does not contain either an actual or implied threat of danger, or that is not preceded by background facts that would make the obnoxious behavior itself constitute an implicit threat." Selinger, 48 Misc.3d at 1218(A).
And that is the problem with the information here. On its face, there is nothing threatening, or even out of the ordinary, about the conduct described. A person who visits his own mother's home, even if he does so frequently—or "continually"—as alleged here, is not engaged in stalking. This case is not at all like Walcott , where this Court found the knowledge element satisfied based on the allegation that the defendant was seen repeatedly sitting on the complainant's fire escape, at night, staring in at her. 47 Misc.3d 1217(A), 16 N.Y.S.3d 794. If conduct as frightening as that actually occurred in this case, it needs to be pled in the information. Nor is this case like E.P., 20 Misc.3d at 1119(A), 867 N.Y.S.2d at 19, where the defendant's frequent contact with a celebrity by itself reflected the requisite knowledge. In that case, the defendant and the complainant were strangers; here they are mother and son.
Finally, this case does not sufficiently plead the type of background facts that might otherwise lead to a reasonable inference that the defendant had the requisite knowledge. Examples of those types of background facts might include past threatening behavior toward the same complainant, conduct taking place in violation of an order of protection, or conduct occurring after the complainant has expressly demanded that the conduct cease, or that is otherwise demonstrated to be unwanted. Here, however, the information merely alleges that the defendant's repeated presence at his mother's residence has made the mother fearful due to defendant's "previous behavior." This bare allegation of some unspecified past behavior is not sufficient. There is no allegation that the defendant has threatened his mother in the past, or that his past behavior had any other feature that would make the defendant's appearance at his mother's residence unwanted in a way that violates § 120.45(1). If the defendant has been violent or threatening toward the mother in the past, or has stolen from her or damaged her property in the past, or if the mother has told the defendant to stay away, and he has defied that request, those facts should be pled. But since they are not, the information is facially insufficient as to the knowledge element.
B. The "No Legitimate Purpose" Element Is Insufficiently Pled
For largely similar reasons, the "no legitimate purpose" element is likewise insufficiently pled. This Court construes the phrase "no legitimate purpose"—an element common to a number of Penal Law offenses-to mean that the defendant had no purpose other than to cause the harm or outcome specified by the particular statute. E.g. People v. Spruill, 49 Misc.3d 1202(A) (Crim Ct N.Y. County 2015) (construing Penal Law § 240.30(2) ); People v. Marian, 49 Misc.3d 562, 16 N.Y.S.3d 683 (Crim Ct N.Y. County 2015) (construing Penal Law § 140.25(2) ). See, generally, People v. Kitsikopolous, 47 Misc.3d 1220(A) (Crim Ct N.Y. County 2015) (for Penal Law § 120.45, "the course of conduct must have had have no legitimate purpose in that its purpose was to cause the particular harm identified" in the statute) (emphasis in original).
But here, there is a complete overlap between the harm identified in the statute and the knowledge element. Under § 120.45(1), the defendant's lack of a legitimate purpose is revealed by his acting in such a way as to reflect the type of knowledge required by the statute. Since, as discussed above, the knowledge element is not sufficiently pled, it follows that the "no legitimate purpose" element is also insufficiently pled.
C. The Information Sufficiently Describes a "Course of Conduct"
Finally, defendant complains that the description in the information of defendant's "continually" or "repeatedly" appearing at his mother's residence is "too vague," Spollen Aff. at ¶ 10, to make out a prima facie case of the "course of conduct" element. As to this, the Court disagrees.
The phrase "course of conduct" simply means "actions separated by time but united by a common purpose." Selinger, 48 Misc.3d at 1218(A). The words "continually" and "repeatedly" in the information adequately convey the concept of "separated by time." And a commonality of purpose is also sufficiently established. The conduct described, defendant's going to his mother's residence on a number of occasions, suggests that he had the same purpose—to visit his mother—on each of them.
Accordingly, the information is sufficient as to this element.
D. Conclusion
The information makes out a prima facie case as to the "course of conduct" element. However, it fails to make out a prima facie case as to the knowledge element and the "no legitimate purpose element." Since these defects might well be cured in a superseding instrument, the Court will grant the People leave to supersede.
IV. CONCLUSION
Defendant's motion to dismiss is granted, with leave to supersede. Sealing is stayed for 30 days.This constitutes the Decision and Order of the Court.