Defendant, charged with Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(2), Stalking in the Fourth Degree, in violation of Penal Law § 120.45(3), and Harassment in the Second Degree, in violation of Penal Law § 240.26(3), moves to dismiss the Aggravated Harassment charge.

This case requires the Court to consider the facial constitutionality of the pre-amendment version of § 240.30(2)^[FN1] in light of two recent Court of Appeals cases,^[FN2] as well as the legal sufficiency of the Information. For the reasons that follow, the motion to dismiss is DENIED.^[FN3] I. FACTUAL BACKGROUND

According to the accusatory instrument, on November 21, 2013, defendant repeatedly telephoned the complainant, Kristel Milby, at her place of employment in New York County, demanding to speak to her. He said that he would continue to call and that if she did not answer he would come to her job to speak to her in person. Ms. Milby told the defendant to stop calling her, [*2]but he disregarded this request. Defendant's conduct caused Ms. Milby to fear for her safety.

Defendant was arraigned on January 16, 2014, on a Misdemeanor Complaint that charged him with two counts of Aggravated Harassment in the Second Degree, in violation of Penal Law §§ 240.30(1)(a) and 240.30(2), and one count each of Stalking in the Fourth Degree, in violation of Penal Law § 120.45(3), and Harassment in the Second Degree, in violation of Penal Law § 240.26(3). The Court released the defendant on his own recognizance and adjourned the case for conversion.

On February 5, 2014, off-calendar, the People filed a Certificate of Readiness and the Supporting Deposition of Ms. Milby. Defendant filed the instant motion to dismiss on April 24, 2014, and, on June 9, 2014, the People orally moved to dismiss the count charging the defendant with violating Penal Law § 240.30(1)(a). Pursuant to People v. Golb, __N.E.3d__, 2014 WL 1883943 (2014) (§ 240.30(1)(a) is unconstitutional), the Court granted that motion. The People responded to the motion to dismiss the § 240.30(2) count on July 8, 2014, and the matter has been sub judice since then.

The Misdemeanor Complaint, sworn out by Detective Efrain Curet on January 15, 2014, provides as follows:

The version of Penal Law § 240.30(2) applicable here made it a Class A Misdemeanor to, "with intent to harass, annoy, threaten or alarm another person" make "a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication." Effective July 23, 2014, however, § 240.30(2) provides that a person is guilty of Aggravated Harassment in the Second Degree when he "[w]ith intent to harass or threaten another person ... makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication." The Court of Appeals upheld the constitutionality of the pre-amendment version of this section in People v. Shack, 86 NY2d 529, 658 N.E.2d 706, 634 N.Y.S.2d 660 (1995).

There, the court rejected a First Amendment challenge to § 240.30(2). The court held that [*3]the statute does not proscribe "pure speech," it proscribes conduct: "making a telephone call without any legitimate purpose of communication." Since the statute "proscribes only conduct and expressly removes from its application legitimate communication,' defendant may not invoke the First Amendment or article I, § 8 of the State Constitution to support a challenge to the facial validity of the statute." 86 NY2d at 535, 658 N.E.2d at 710, 634 N.Y.S.2d at 664.

The court also held that, even to the extent that it does proscribe speech, the statute does not run afoul of the First Amendment. The court relied on Rowan v. Post Office Department, 397 U.S. 728, 90 S.Ct. 1484 (1970), which, in rejecting a First Amendment challenge to a postal regulation, identified a "right to be let alone" that can sometimes curtail another person's right to free expression:

Finally, the court held that the statute was neither vague nor overbroad. As to overbreadth, the court concluded the section does not "reach a substantial amount of constitutionally protected expression ." 86 NY2d at 537, 658 N.E.2d at 711, 634 N.Y.S.2d at 665. As to vagueness, the court rejected the argument that term "legitimate" contained in the clause "no purpose of legitimate communication" was incapable of precise definition. The court held that the phrase,"notwithstanding its subjective quality, would be understood to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." 86 NY2d at 538, 658 N.E.2d at 712, 634 N.Y.S.2d at 666.

Two recent cases, however, potentially cast doubt on the continuing viability of Shack. In People v. Golb, __N.E.3d__, 2014 WL 1883943 (2014), the court held that a closely related statute, Penal Law § 240.30(1)(a), which then provided 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 ... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm,"^[FN4] is unconstitutional. Characterizing this statute as proscribing "pure speech," Golb found that it was both vague and overbroad, in violation of the First Amendment, in that it "criminalizes, in broad strokes, any communication that has the intent to annoy. ... [N]o fair reading of this statute's unqualified terms supports or even suggests the constitutionally necessary limitations on its scope." Id. citations and internal quotation marks omitted.

Even more recently, in People v. Marquan M., ___N.E.3d___, 2014 WL 2931482 (2014), [*4]the court voided a Albany County cyberbullying statute that also has many similarities to the pre-amendment version of § 240.30(2).

There is at least some cause to conclude that Golb and Marquan M. might have undermined the continuing validity of Shack. Both suggest that the intent requirement that the Shack court found to save § 240.30(2) - " to harass, annoy, threaten or alarm another person" - might, in fact, no longer save it. In Golb, the statute had the same intent element, and the court concluded that it violated the First Amendment because it "criminalizes, in broad strokes, any communication that has the intent to annoy." Marquan M. examined a statute that a had a similar, although not an identical, intent element: "electronic communications that are meant to harass, annoy ... taunt ... [or] humiliate' any person or entity, not just those that are intended to threaten, abuse ... intimidate, torment ... or otherwise inflict significant emotional harm on' a child." There, the court noted that, on its face, "the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." Relying, in part, on Golb, the court found the statute overbroad because, "[a]s we have recently made clear, the First Amendment protects annoying and embarrassing speech ... even if a child may be exposed to it."

Moreover, section 240.30(2), both in its pre- and post-amendment versions, also has as an element that the communication serve "no legitimate purpose," a clause that is now suspect under Marquan M.: "[T]he First Amendment forbids the government from deciding whether protected speech qualifies as legitimate.'"

Nevertheless, despite these concerns, this Court concludes that the pre-amendment version of § 240.30(2) is not unconstitutional on its face. It remains true that this section covers some forms of activity that are not pure speech, such as repeatedly telephoning another person and hanging up. That conduct is, in essence, a form of stalking - akin to repeatedly making unwanted appearances outside another person's residence, or persistently following another person as she goes about her day - that is clearly not protected by the First Amendment. People v. Stuart, 100 NY2d 412, 797 N.E.2d 28, 765 N.Y.S.2d 1 (2003). This would appear to sufficiently distinguish § 240.30(2) - in either version - from the statutes at issue in Golb and Marquan M.; those statutes are only triggered by an actual communication.

Additionally, neither Golb nor Marquan M. overruled or abrogated Shack, which would have been a logical step if the court concluded that it was no longer viable, and this Court remains bound to follow it. Finally, the Court notes that the Court of Appeals rejected a vagueness challenge to the "no legitimate purpose" element, albeit in a different Penal Law provision, in Stuart, 100 NY2d at 412, 797 N.E.2d at 28, 765 N.Y.S.2d at 1, and neither Golb nor Marauqn M. overruled Stuart.

Accordingly, both binding precedent and the text of the statute compel the conclusion that the pre-amendment version of § 240.30(2) is not unconstitutional. The motion to dismiss on this ground is denied.

The allegations that defendant repeatedly telephoned the complainant at work saying that he wanted to speak to her, told the complainant that he would keep calling until she agreed to speak to him and defied numerous requests to stop, sufficiently makes out a prima facie case of a violation of § 240.30(2).

The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information 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 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

As noted above, § 240.30(2) criminalizes those telephonic communications, whether a conversation took place or not, that lack any "expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." Shack, 86 NY2d at 538, 658 N.E.2d at 712, 634 N.Y.S.2d at 666. Or, as the court put it in Stuart, " no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten." 100 NY2d at 428, 797 N.E.2d at 41, 765 N.Y.S.2d at 14.

Determining whether an information charging a violation of § 240.30(2) sufficiently pleads the "no legitimate purpose" element requires an examination of the context, timing and number of telephone calls, their content, if any, and whether those calls continued after a demand that they cease. See People v. Mitchell, 24 Misc 3d 1249(A), 899 N.Y.S.2d 62 (Crim Ct Bronx County 2009) (information facially sufficient; defendant called complainant 45 times in a single day, and left 10 threatening messages); People v. Bamba, 15 Misc 3d 1122(A), 841 N.Y.S.2d 220 (Crim Ct New York County) (2007) (three calls to complainant made early in the morning and late at night on same day that complainant told him not to call made out prima facie case that calls lacked legitimate purpose); People v. Coyle, 186 Misc 2d 772, 719 N.Y.S.2d 818 (Dist Ct Nassau County 2000) (repetition and tone of calls, and fact that they continued after complainant told defendant to stop, sufficiently pleads the "no legitimate purpose" element); cf. People v. Thompson, 28 Misc 3d 483, [*6]905 N.Y.S.2d 449 (Crim Ct Kings County 2010) (information that simply alleged that defendant repeatedly called complainant during a range of dates was insufficient; no allegation as to the number of calls, their frequency or timing, or that complainant told defendant to stop). While even a single call can make out a prima facie case, People v. Coyle, 186 Misc 2d 772, 719 N.Y.S.2d 818 (Dist Ct Nassau County 2000), there must be a sufficient showing of the requisite intent. People v. Goris, 39 Misc 3d 1217(A), 975 N.Y.S.2d 368 (Crim Ct Kings County 2013) (information alleging that defendant and the complainant had a dispute during a single telephone conversation, without more, was insufficient); People v. Cruz, ___Misc.3d___, 2014 WL 3030321 (Crim Ct Queens County 2014) (information alleging single threatening call was insufficient; instrument contained no context or timing of the conversation and did not allege that complainant had told defendant not to call).

Here, the Information makes out a prima facie case that defendant placed calls to the complainant with no legitimate purpose. The Court first notes that defendant repeatedly called the complainant at her place of employment, with no apparent reason for doing so that was related to her work. In addition, he called her six times on a single day and defied three requests that he stop. Finally, the content of the conversations - a repeated demand to speak to the complainant, and a threat to come to her job in person if she did not -reasonably suggests no legitimate purpose other than to threaten or intimidate her. In light of these facts the Information is facially sufficient.D. Conclusion

Section 240.30(2) is not unconstitutional, and the Information is facially sufficient. The motion to dismiss is accordingly denied.

The motion to dismiss is denied.

This constitutes the Decision and Order of the Court.