Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.), rendered November 15, 2006. The judgment convicted defendant, after a nonjury trial, of three counts of aggravated harassment in the second degree.

Judgment of conviction modified on the law by vacating the conviction for aggravated harassment in the second degree in violation of Penal Law § 240.30 (2) and dismissing said count of the accusatory instrument; as so modified, affirmed.

On this appeal, defendant challenges the sufficiency of the accusatory instrument. Therein, she was charged by a police detective upon information and belief with committing three counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a], [b]; [2]) "approximately between" May 25, 2005 at 11:30 P.M. and September 16, 2005 at 9:00 A.M. The factual part of the accusatory instrument reads:
Deponent states that he is informed by the complainant ... that at the above-mentioned date, time and place of occurrence the defendant ... called the complainant on the telephone. The defendant has called the complainant on at least three other occasions and on at least one of those occasions the defendant stated, 'I'm going to bust your ass'. Deponent is further informed by the complainant that on at least one occasion the defendant [*2]threatened over the phone to stab the complainant. Deponent is further informed by the complainant that the defendant's above-mentioned actions caused the complainant to fear for her safety and caused the complainant annoyance and alarm."
In a supporting deposition, the alleged victim averred that she had read the accusatory instrument and that the facts stated therein to be on information furnished by her were true upon her personal knowledge.

With regard to the first count charging a violation of Penal Law § 240.30 (2), the statute provides, that "a person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: . . . 2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication . . . ." The accusatory instrument in the case at bar fails to allege facts showing, if true, that defendant's subject telephone calls had no purpose of legitimate communication and, thus, said count is jurisdictionally defective (People v Singh, 1 Misc 3d 73 [App Term, 2d & 11th Dists 2003]), as the People herein concede.

With respect to the second and third counts charging violations of Penal Law § 240.30 (1) (a) and (b), the statute states, in pertinent part, that
"a person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: 1. Either (a) communicates with a person . . . by telephone . . . in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronical means or otherwise with a person . . . by telephone . . . in a manner likely to cause annoyance or alarm."
The factual part of the subject accusatory instrument together with the supporting deposition sets forth sufficient facts establishing, if true, that the phone calls were made, as proscribed in said provisions, in "a manner likely to cause annoyance or alarm." With regard to these charges, we note that defendant had allegedly told the victim over the telephone on one occasion, "I'm going to bust your ass," and, on another occasion, she "threatened over the phone to stab" the victim. It has been observed that "an accusatory instrument must be given a reasonable, not overly technical reading" (People v Konieczny, 2 NY3d 569, 576 [2004]). We conclude that the factual part of the accusatory instrument alleges facts of an evidentiary character which sufficiently support or tend to support the charges specifying violations of Penal Law § 240.30 (1) (a) and (b), and, together with the supporting deposition, provides reasonable cause to believe that defendant committed the offenses charged (see CPL 100.15 [3]; 100.40 [1] [a], [b]).

Accordingly, the judgment of conviction is modified by providing that defendant's conviction of the count of the accusatory instrument charging aggravated harassment in the second degree in violation of Penal Law § 240.30 (2) is vacated and said count is dismissed. The judgment of conviction is otherwise affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: January 30, 2009