Defendant, charged with Criminal Contempt in the Second degree, in violation of Penal Law § 215.50(3) (Count One), two counts of Stalking in the Fourth Degree, in violation of Penal Law § 120. 45(1) and (2) (Counts Two and Three), and two counts of Harassment in the Second Degree, in violation of Penal Law § 240.26(2) and (3) (Counts Four and Five), moves to dismiss for facial insufficiency. For the reasons set out below, the motion to dismiss is DENIED. Defendant also moves to suppress certain post-arrest statements; as to that motion, the Court orders a Dunaway/Huntley hearing.^[FN1]

According to the Misdemeanor Complaint, on or about November 20, 2013, the complainant in this case, Russell Marks, obtained an Order of Protection in New York County Family Court against the defendant. The Order bore an expiration date of February 5, 2014, and directed the defendant to stay away from Mr. Marks and to refrain from stalking or harassing him. Defendant was present in Family Court when the Order was issued.

On or about December 14, 2013,^[FN2] defendant approached Mr. Marks in Central Park, walked behind him and followed him as he walked along the street. Defendant behaved in a similar fashion [*2]on January 26, 2014, and persisted even after Mr. Marks told her to stop.^[FN3]

Defendant was arraigned on January 27, 2014, on a Misdemeanor Complaint charging her with Criminal Contempt in the Second degree, in violation of Penal Law § 215.50(3) (Count One), two counts of Stalking in the Fourth Degree, in violation of Penal Law § 120. 45(1) and (2) (Counts Two and Three), and two counts of Harassment in the Second Degree, in violation of Penal Law § 240.26(2) and (3) (Counts Four and Five). After the People filed and served the underlying Order of Protection, the Court set bail, issued a Temporary Order of Protection in favor of Mr. Marks and adjourned the case to February 21 for conversion. Defendant posted bail that same night.

On February 21, 2014, the People filed and served Mr. Marks' Supporting Deposition, and the Court set a motion schedule under which defendant's motions were due on March 13, and March 24 was the date for response and decision. The People did not file a response on March 24, and the Court adjourned the case to May 2 for response and decision.

The People filed their response and a Voluntary Disclosure Form in court on May 2, 2014, and the Court adjourned the matter to June 26 for decision. The motion has been sub judice since May 2.

Characterizing the incidents described in the Information as merely chance encounters between the defendant and the complainant in a public place, defendant argues that the Information is facially insufficient as to all counts. While defendant's purported lack of criminal intent might well be accepted by the finder of fact at trial, it does not render the Information facially insufficient.1. The Misdemeanor Complaint, Supporting Deposition and Order of Protection

The Misdemeanor Complaint, sworn out by Police Officer Peter Pollock, alleges that Mr. Marks advised him that:

Finally, the Family Court Order of Protection directs the defendant to "[s]tay away from" Mr. Marks himself, his "home," and his "place of employment." It also requires that the defendant "[r]efrain from communication or any other contact" with Mr. Marks by any means and that she "[r]e frain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats or any criminal offense against" him. The Order is dated November 20, 2013, and indicates that the defendant was present in court and was advised of the issuance and contents of the Order. It bears an expiration date of February 5, 2014.

To be facially sufficient, an Information must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729, 506 NYS2d 319, 497 NE2d 686 (1986); People v Alejandro, 70 NY2d 133, 517 NYS2d 927, 511 NE2d 71 (1988); People v McDermott, 69 NY2d 889, 515 NYS2d 225, 507 NE2d 1071 (1987); People v Case, 42 NY2d 98, 396 NYS2d 841, 365 NE2d 872 (1977). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL §70.10 (2).

This standard does not require that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652, 657, 504 NE2d 1079, 1084 (1986). Rather, it 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 NY2d 354, 360, 717 NYS2d 88, 91, 740 NE2d 233, 236 (2000). A court reviewing for facial insufficiency must assume that the factual allegations contained in the Information are true and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 NYS2d 715, 721-22, 967 NE2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 NYS2d at 91, 740 NE2d at 236. Under these standards, the accusatory instrument here is facially sufficient as to all counts.

Defendant is charged with two counts of Stalking in the Fourth Degree, under Penal Law §§ 120.45(1) and (2). As pertinent here, those statutes provide that a person commits an offense when "she 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" either "is likely to cause reasonable fear of material harm to the physical health, safety or property of such person" ( Subdivision 1) or "causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person ... and the actor was previously clearly informed to cease that conduct" (Subdivision 2).

The facts alleged in the Information, "given a fair and not overly restrictive or technical reading," Casey, 95 NY2d at 360, 740 NE2d at 236, 717 NYS2d at 91, permit reasonable inferences [*4]in support of each element of both offenses. First, the behavior ascribed to the defendant meets the definition of a "course of conduct." The phrase "course of conduct" may "reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." People v. Murray, 167 Misc 2d 857, 635 NYS2d 928 (Crim Ct New York County 1995) (citations and internal quotation marks omitted). Here, the Information alleges that twice within a six-week period, defendant approached the complainant in the park and followed him. These facts sufficiently plead a course of conduct that had no legitimate purpose. See People v. Stuart, 100 NY2d 412, 428, 797 NE2d 28, 41, 765 NY.S2d 1, 14 ( 2003) ("the phrase no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten").

In addition, 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 both that she knew that her actions would cause the complainant to fear that he would be harmed, and that he actually did suffer such fear. Finally, the allegation that defendant was aware of the Order of Protection sufficiently pleads the requirement in Subdivision 2 that she was "previously informed" to "cease that conduct."

It is the existence, and the defendant's awareness, of the Order of Protection that distinguish the instant case from People v. Lewis, 29 Misc 3d 978, 909 NYS2d 321 (Crim Ct NY County 2010), relied on by the defendant. There, the court concluded that although the defendant was alleged to have engaged in relatively mild, albeit hostile, behavior toward the complainant, there was no reasonable inference that the defendant had reason to believe that this behavior would cause the complainant to fear for her safety. Id. at 982, 324. Here, however, that gap is filled by the defendant's knowledge that the complainant was sufficiently fearful of her to obtain a Family Court Order of Protection. There is a reasonable inference that when the defendant behaved as she did, knowing that there was an Order of Protection outstanding, she also knew that her behavior would place the defendant in reasonable fear.

For similar reasons, both counts of Harassment in the Second Degree are sufficiently pled. A person violates Penal Law § 240.26(2) when she "follows a person in or about a public place or places" with the "intent to harass, annoy or alarm another person." Despite defendant's claim that she lacked any criminal intent, the facts in the Information sufficiently plead the requisite intent. Similarly, a person violates § 240.26(3) when, with that same intent, she "engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." These elements are nearly identical to those in the stalking statutes discussed above. For the above reasons, then the Information is facially sufficient as to § 240.26(3).

The Court's conclusion that the various stalking and harassment counts are sufficiently pled leads directly to the conclusion that the count of Criminal Contempt in the Second Degree, in violation of Penal Law § 215.50(3) is also facially sufficient. The Order expressly directs the defendant to refrain from committing, amongst others, the very offenses with which she is charged in this Information.

But even if those counts were facially insufficient, there would still be facially sufficient criminal contempt count, since there is a reasonable inference that the defendant deliberately violated the injunction that she "stay away" from this complainant. The conduct alleged - approaching and [*5]following the complainant on two separate occasions - sufficiently makes out a violation of the stay-away order. This case is not like People v. Garrity, 2002 WL 31748578 (Poughkeepsie City Court 2002), cited by the defendant. There, the court concluded that, where the accusatory instrument alleged only that the defendant drove out of a parking lot and ended up in close proximity to the complainant, it did not sufficiently plead an "intentional rather than fortuitous confrontation." Id. at *2. But here, the Information alleges that the complainant approached the complainant and followed him on two separate occasions and that on the second of these occasions she did so even after the complainant asked her to stop. These facts sufficiently make out an intentional act.

Accordingly, the criminal contempt count is facially sufficient.

For the foregoing reasons, defendant's motion to dismiss is denied. The Court orders a DunawayHuntley hearing.

Judge of the Criminal Court