People v Mitchell (2009 NY Slip Op 51931(U))

People v Mitchell

2009 NY Slip Op 51931(U) [24 Misc 3d 1249(A)]

Decided on July 23, 2009

Supreme Court, Bronx County

Best, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through September 17, 2009; it will not be published in the printed Official Reports.

Defendant is charged with two counts of Aggravated Harassment in the Second Degree (PL § 240.30[1][a], [2]), two counts of Endangering the Welfare of a Child (PL § 260.10[1]) and Harassment in the Second Degree (PL § 240.26[1]). He now moves this court to dismiss the accusatory instrument as facially insufficient pursuant to CPL § 170.30(1).

The information alleges that on April 21, 2009, at approximately 5:00 PM, inside an apartment in Bronx County:

"Deponent [Madeline Arzu] states that . . . defendant deponent [sic] on her cellular telephone approximately forty-five (45) times. Deponent further states that she received approximately ten (10) voice messages from the defendant stating in sum and substance I'M GONNA KILL YOU, I'M GONNA HURT, I'M SORRY AND I LOVE, YOU'RE A HO, A BITCH, A SLUT, IF YOU EVER LET MY BABY SEE ANOTHER MAN, I'M GONNA KILL YOU, MY BABY AND THE OTHER MAN AND WHEN I COME AND HURT YOU NO ONE IN THE HOUSE IS GONNA STOP ME FROM KILLING YOU.

"Deponent states that she is sixteen (16) years old and that her date of birth is . . . 1992.

"Deponent states that the defendant's aforementioned conduct caused her to experience annoyance, alarm, and fear for her physical safety."

The information also alleges that on April 22, 2009, at approximately 8:00 AM, inside an apartment in Bronx County: [*2]

"Deponent states that . . . defendant banged on her apartment door with his hands and feet for approximately forty-five (45) minutes and stated in sum and substance OPEN THE DOOR BITCH, I'M NOT PLAYING WITH YOU, YOU RAISED MY TEMPER, YOU HAVE A NIGGER IN THE HOUSE? I KNOW YOU SEE ME. I'M GONNA KILL YOU.

"Deponent states that she is sixteen (16) years old and that her date of birth is . . . 1992.

"Deponent states that the defendant's aforementioned conduct caused her to experience annoyance, alarm, and fear for her physical safety."

Without elaboration, defendant moves to dismiss the accusatory instrument as facially insufficient for "failure to state an essential element, pursuant to CPL 100.15, 100.40, 170.30 and 170.35."

The People respond that the factual allegations contained in the complaint provide facts of an evidentiary character which tend to support these charges and provide reasonable cause to believe that defendant committed them.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. CPL §§ 100.15(3); 100.40(1)(b); 70.10. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. CPL § 100.40(1)(c). An information which fails to satisfy these requirements is jurisdictionally defective. CPL §§ 170.30 and 170.35; People v. Alejandro, 70 NY2d 133, 136-37(1987); People v. Dumas, 68 NY2d 729 (1986). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v Casey, 95 NY2d 354, 360 (2000) (citations omitted). The facts alleged in the accusatory instrument need not rise to the level of establishing guilt beyond a reasonable doubt. People v. Kalin, 12 NY3d 225, 230 (2009).

Threats of physical violence which are likely to cause alarm or annoyance to the recipient fall within the type of speech which may be constitutionally proscribed. People v. Hernandez, 7 Misc 3d 857, 860 (Crim Ct New York County 2005); People v. Tiffany, 186 Misc 2d 917 (Crim Ct New York County 2001). "A genuine threat is one that is serious, should reasonably have been taken to be serious, or was confirmed by other words or conduct." People v. Hernandez, 7 Misc 3d at 860, citing People v. Dietze, 75 NY2d 47 (1989). "True threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an unlawful act of violence to a particular individual or group of individuals." People v. Olivo, 6 Misc 3d 1034(A), * 2 (Crim Ct NY County 2005), citing Virgina v. Black, 538 US 343, 259 (2003). Moreover, it must be shown that, under the circumstances, "an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury," whether or not the defendant subjectively intended the communication to convey a true threat. People v. Olivo, id., citing United States v. Francis, 164 F3d 120, 123 (2nd Cir 1999).

Here, the allegation that defendant called Ms. Arzu 45 times and left her 10 voice messages, in which he repeatedly threatened to kill her and/or her child, if true, plainly establish reasonable cause to believe that defendant committed the crime of Aggravated Harassment in the Second Degree under subdivision (1)(a) of the statute. See People v. Hernandez, 7 Misc 3d at 858, 861 (charge of PL § 240.30(1) legally sufficient, where defendant stated to complainant, "I'm gonna come to your job, cut your face, and something else will happen to your car."); People v. Olivo,6 Misc 3d 1034(A) at * 1-2 (denying motion to dismiss PL § 240.30(1), where accusatory instrument alleged that defendant called complainant and stated, in sum and substance, "Who are the women?" and "if I see you with another woman I'll fuck you up"); People v. Tiffany, 186 Misc 2d at 918-21 (charge of PL § 240.30(1) legally sufficient, where defendant said to complainant, "If you try to keep my son away from me I'm going to put a bullet in your head").

A legally sufficient accusatory instrument charging Aggravated Harassment in the Second Degree under PL § 240.30(2) must contain facts that allege that the defendant made telephone calls with no purpose of legitimate communication. The Court of Appeals, in upholding the constitutionality of the statute under this subsection, held that the phrase "no purpose of legitimate communication" "would be understood to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances" (People v. Shack, 86 NY2d 529, 538 [1995]). Here, defendant's statements, on their face, fit well within this definition, because they consist entirely of threats and intimidating utterances. Moreover, defendant allegedly made these threats and intimidating utterances during a barrage of 45 telephone calls in one day. The statute is aimed, in part, at telephone harassment by "driving a person to distraction by repeatedly dialing his number." (People v. Miguez, 147 Misc 2d 482, 484 [Crim Ct, New York County 1990], aff'd, 153 Misc 2d 442 [App Term, 1st Dept 1992] [citation omitted]). Here, defendant's conduct, allegedly calling Ms. Arzu 45 times in one day and leaving 10 threatening messages, is exactly the type of conduct that subsection 2 of the Aggravated Harassment statute criminalizes. See People [*4]v. Bamba, 15 Misc 3d 1122(A), * 4 (Crim Ct New York County 2007) (allegation in accusatory instrument that defendant placed three telephone calls to complainant on the same day that complainant instructed him not to call her, established prima facie that defendant's calls lacked legitimacy); People v. Shropshire, 181 Misc 2d 787 (Crim Ct Richmond County 1999) (allegation that defendant telephoned complainant's beeper four times during a 44 minute period, used the emergency "911" code twice and also communicated a non-public telephone number, all established prima facie evidence that defendant did not have a legitimate purpose of communication).

These same factual allegations establish prima facie evidence that defendant committed the crime of Endangering the Welfare of a Child, which requires that a person "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." In order for these counts to be sufficient, the People must allege facts that establish reasonable cause to believe that defendant acted in a manner which was likely to result in harm to a child and that defendant was aware that the conduct might likely result in harm to the child, whether the conduct was directed at the child or not (see People v. Johnson, 95 NY2d 368,371-372 [2000]). As to the first count of Endangering, the allegations that defendant called Ms. Arzu, a teenager, and left her messages threatening to kill her and her child, establish that he acted in a manner likely to be injurious to Ms. Arzu's physical, mental or moral welfare on April 21, 2009. As to the second count of Endangering, the allegations that defendant banged on Ms. Arzu's apartment door for 45 minutes, threatening to kill her, also establish that he acted in a manner likely to be injurious to her physical, mental or moral welfare on April 22, 2009.

The accusatory instrument also sufficiently alleges that defendant committed Harassment in the Second Degree (PL § 240.26[1]). "The crux of section 240.26(1) is the element of physical contact: actual, attempted or threatened." People v Bartkow, 96 NY2d 770, 772 (2001). Here, the allegations, if true, clearly establish that defendant threatened the complainant with physical contact with intent to harass, annoy or alarm her, by repeatedly banging on her door and threatening to kill her. Defendant's intent to harass and alarm Ms. Arzu is plainly inferable from his conduct. People v Phillips, 2003 WL 1956303, *1, 2003 NY Slip Op 50724 (U) (App Term, 1st Dept), lv denied, 100 NY2d 565 (2003).

For the reasons set forth above, defendant's motion to dismiss the information is denied.

Defendant requests a bill of particulars and discovery, as well as an order granting the same relief, or, in the alternative, preclusion of evidence. Defendant filed this request simultaneously with his omnibus motion. The statute requires that the People be afforded a reasonable opportunity to respond to defendant's demands before a request for judicial intervention can be entertained (CPL [*5]§§ 200.95[2],[4],[5] and 240.80[3]). Accordingly, defendant's motion to compel discovery is denied.

Defendant's motion for a Mapp/Payton hearing is denied, as the People state that property was not recovered from defendant.

Defendant moves for an order granting suppression identification evidence5 by the complainant, Madeline Arzu. He alleges in support of his motion that the identification procedure was both the fruit of an illegal arrest and unnecessarily suggestive. The People oppose defendant's motion, arguing that defendant and Ms. Arzu have known each other for approximately one year and dated for approximately eight months. Where, as here, the People's response indicates that the defendant and witness are intimately known to each other, a Wade hearing is not required. Accordingly, defendant's motion to suppress identification testimony is denied. Additionally, as defendant did not controvert the People's allegations that he and Ms. Arzu are known to each other, a Rodriguez hearing is unnecessary. People v. Dominguez, 207 AD2d 715 (1st Dept 1994), lv denied, 84 NY2d 907 (1994); People v. Foster, 217 AD2d 558 (1st Dept 1995). Finally, there is no basis for a Dunaway hearing (People v. Tolentino, 59 AD3d 602 [1st Dept 2009]).

Defendant's motion to preclude impeachment evidence, People v. Sandoval, 34 NY 371 (1974), and evidence-in-chief of defendant's prior bad acts, People v. Ventimiglia, 52 NY2d 350 (1981), is referred to the trial court for hearings immediately prior to trial. The People are ordered to comply with their disclosure obligations pursuant to CPL § 240.43 if they seek to introduce any such evidence.

Defendant's application for an extension of time to file additional motions is denied, subject to the provisions of CPL § 255.20(3) regarding due diligence and good cause.