Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gerstein, J.), rendered March 9, 2011. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.

Defendant was charged with one count of harassment in the second degree (Penal Law § 240.26 [1]) and two counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a] and [b]). The factual portion of the accusatory instrument alleged that defendant had sent the complainant a text message that stated, "what you find funny, I do not find funny, I will have the last laugh, you wait and see." Thereafter, defendant, through his counsel, waived prosecution by information and a formal allocution, and pleaded guilty to disorderly conduct (Penal Law § 240.20) in full satisfaction of the charges. On appeal, defendant challenges the accusatory instrument's facial sufficiency. The People concede that the instrument was not facially sufficient to support the charges alleged.

At the outset, we note that defendant's challenge to the facial sufficiency of the accusatory instrument is jurisdictional (see People v Alejandro, 70 NY2d 133 [1987]) and, thus, was not [*2]forfeited upon his plea of guilty (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 573 [2004]). Consequently, this issue must be reviewed in spite of defendant's failure to raise it in the Criminal Court (see Alejandro, 70 NY2d 133). As defendant expressly waived his right to be prosecuted by information (cf. People v Kalin, 12 NY3d 225 [2009]; People v Weinberg, 34 NY2d 429 [1974]), the accusatory instrument's legal sufficiency must be evaluated under the standards which govern the legal sufficiency of a misdemeanor complaint (cf. Kalin, 12 NY3d at 228; People v Casey, 95 NY2d 354, 359 [2000]). A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the offense charged (CPL 100.15 [3]) and provides reasonable cause to believe that the defendant committed the offense charged (CPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]).

Here, as to the count of harassment in the second degree (Penal Law § 240.26 [1] [a]), the factual allegations in the accusatory instrument, standing alone, could not reasonably be construed to represent a genuine and immediate threat to the complainant (see People v Dietze, 75 NY2d 47, 51 [1989] [the statement did not present a "clear and present danger"]; People v Shehabeldin [Noha], 39 Misc 3d 149[A], 2013 NY Slip Op 50942[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v Ruggerio, 4 Misc 3d 133[A], 2004 NY Slip Op 50747[U] [App Term, 9th & 10th Jud Dists 2004]). Thus, as the People concede, the misdemeanor complaint was legally insufficient to charge the offense of harassment in the second degree (see CPL 100.15 [3]; 100.40 [4] [b]).

As to the two counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a] and [b]), as noted above, defendant's single text message could not reasonably be construed as an unequivocal and specific threat and, therefore, as the People concede, it did not rise to the level of criminally sanctionable speech or conduct (see People v Shack, 86 NY2d 529, 539 [1995]; People v Smith, 89 Misc 2d 789, 791-792 [App Term, 2d & 11th Jud Dists 1977]; see generally People v Mangano, 100 NY2d 569, 571 [2003]). Consequently, the misdemeanor complaint was legally insufficient to charge the offenses of aggravated harassment in the second degree (see CPL 100.15 [3]; 100.40 [4] [b]).

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: December 09, 2013