Defendant, charged with Stalking in the Third Degree, in violation of Penal Law § 120.50(3), Menacing in the Second Degree, in violation of Penal Law § 120.14(2), two counts of Stalking in the Fourth Degree, in violation of Penal Law § 120.45(1) and (2), Harassment in the First Degree, in violation of Penal Law § 240.25, and Harassment in the Second Degree, in violation of Penal Law § 240.26(3), renews his previously denied motion to dismiss, relying on People v. Golb, __N.E.3d__, 2014 WL 1883943 (2014), which held that Penal Law § 240.30(1)(a) is unconstitutional. For the reasons that follow, the motion to renew is DENIED.^[FN1] I. FACTUAL BACKGROUND

According to the accusatory instrument, between February and April of 2013, defendant sent the complainant, Concepta McSeain, numerous - sometimes daily - text messages, even after she had told him to stop and blocked his number from her cell phone. He also frequently emailed her, and sent her numerous unwanted letters and packages by mail.

In March of 2013, Ms. McSeain saw the defendant on the street outside her home looking up at her apartment; she told him she was afraid and that she would call the police if he did not leave. About one month later, she saw the defendant on the street as she made her way to work.

Finally, in September of 2013, Ms. McSeain, who was traveling by car, saw the defendant follow her in another vehicle for more than 30 blocks. When she got out of her car he got out of his, and stood and watched her.

Defendant's actions caused Ms. McSeain to fear for her physical safety.

Defendant was arraigned on September 10, 2013, on a Misdemeanor Complaint that charged him with Stalking in the Third Degree, in violation of Penal Law § 120.50(3) (Count One), [*2]Menacing in the Second Degree, in violation of Penal Law § 120.14(2) (Count Two), Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(1)(a) (Count Three), two counts of Stalking in the Fourth Degree, in violation of Penal Law § 120.45(1) and (2) (Counts Four and Five), Harassment in the First Degree, in violation of Penal Law § 240.25 (Count Six), and Harassment in the Second Degree, in violation of Penal Law § 240.26(3) (Count Seven). The Court set bail and adjourned the case for conversion.

On September 11, 2013, off-calendar, the People filed a Certificate of Readiness and the Supporting Deposition of Ms. McSeain. Defendant, who had posted bail, filed his initial motion to dismiss on November 1, 2013. The People responded on November 18 and, on January 16, 2014, the Court denied that motion.

On June 16, 2014, the People orally moved to dismiss Count Three, which charged the defendant with violating Penal Law § 240.30(1)(a). Pursuant to People v. Golb, __N.E.3d__, 2014 WL 1883943 (2014), the Court granted that motion. On that same day, defendant filed the instant motion. The People responded on July 8, 2014, and the matter has been sub judice since then.

The Misdemeanor Complaint, sworn out by Detective Neil Ariano, provides as follows:

While it is true that Golb held that one of the statutes under which defendant was originally charged, Penal Law § 240.30(1)(a), is unconstitutional, that count, Count Three of the Information, has already been dismissed on the People's motion. And there is simply nothing about Golb that would warrant either reconsideration of the conclusion that the remaining counts are sufficiently pled or a finding that the statutes involved in the remaining counts are unconstitutional as applied to the defendant.^[FN2]

Golb held that § 240.30(a)(1) was unconstitutional because it criminalized "pure speech," in an unconstitutional manner. To comport with the First Amendment, "any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence." Id. Section 240.30(a)(1), which "criminalize[d], in broad strokes, any communication that has the intent to annoy," exceeded those bounds. A similar analysis had previously led the court to conclude that the former Penal Law § 240.25(2), which prohibited the use of "abusive" language with the intent to "harass" or "annoy" was likewise unconstitutional. People v. Dietze, 75 NY2d 47, 549 N.E.2d 1166, 550 N.Y.S.2d 595 (1989).

But the Court of Appeals has consistently distinguished statutes such as those at issue in Golb and Dietz with those that criminalize conduct, even if speech might be a component of the offense. For example, in People v. Shack, 86 NY2d 529, 658 N.E.2d 706, 634 N.Y.S.2d 660 (1995), the court held that Penal Law § 240.30(2) was not unconstitutional on its face. That section, at the time, made it a criminal offense 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." The Court of Appeals held that the statute does not proscribe "pure speech," it proscribes conduct: "making a telephone call without any legitimate purpose of communication." And this Court has already held that § 240.30(2) survives Golb. People v. Dixon, 44 Misc 3d 1216(A), 2014 WL 3746803 (Crim Ct NY County 2014) (Statsinger, J.).^[FN3] As pertinent here, this Court noted:

Defendant protests that "re-characteriz[ing] speech as conduct" ... "obscure[s] ... the operative issues in regulating expressive conduct." But that argument is meaningless here, where the defendant is charged with criminal offenses based only on his actions - bombarding the complainant with unwanted text messages, telephone calls, emails, letters and packages, standing outside her apartment building and staring up at her, following her in public both on foot and by vehicle, and defying her repeated requests that he leave her alone. The Information does not even describe the content of the communications in a way that might risk unconstitutionally penalizing the defendant solely for something that he said.

Ultimately, defendant is being prosecuted for actions, not speech, that terrorized this complainant over a period of months. There is simply nothing about Golb that would cause the Court to reconsider its previous holding that the Information - which no longer charges the defendant with violating § 240.30(1)(a) - is facially sufficient. The motion to renew is accordingly denied.

The motion to renew is denied.

This constitutes the Decision and Order of the Court.