Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Matthew A. Sciarrino, Jr., J.), rendered December 15, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted resisting arrest.

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

The accusatory instrument alleged that at approximately 12:15 a.m. on December 15, 2011, at the St. George Staten Island Ferry Terminal, defendant allegedly cursed at a New York City police officer, by stating "F *** YOU, THE COP THAT GOT SHOT IN THE FACE DESERVED IT, YOU GUYS ARE GOING TO GET YOURS." The accusatory instrument also alleged that defendant's conduct constituted "tumultuous or threatening behavior," and caused the officer "to experience annoyance alarm and fear for his physical safety." Furthermore, when the officer attempted to arrest defendant, defendant placed "his arms in front of his body in order to prevent" the officer "from making a lawful arrest." Defendant was charged with disorderly conduct (Penal Law § 240.20 [1]), harassment in the second degree (Penal Law § 240.26 [1]), and resisting arrest (Penal Law § 205.30). Defendant orally moved to dismiss the accusatory instrument for facial insufficiency, which motion was denied with leave to renew in writing. Defendant then agreed to plead guilty to attempted resisting arrest (Penal Law §§ 110.00, 205.30), and to waive prosecution by information.

At the outset, we find that defendant, by his affirmative act during his plea allocution, knowingly and intelligently waived prosecution by misdemeanor information, and thereby declined the protection of CPL 170.65 (see People v Dumay, 23 NY3d 518, 522 [2014]). Thus, "the facial sufficiency of the accusatory instrument" in this case must be measured "by the standard required of misdemeanor complaints" (id. at 524; see People v Lurk, 41 Misc 3d 144[A], 2013 NY Slip Op 52061[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (see People v Dumay, 23 NY3d at 522; People v Dreyden, 15 NY3d 100, 103 [2010]). A misdemeanor complaint must "set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" (People v Dumay, 23 NY3d at 522; see CPL 100.40 [4]), and provide "the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy' " (People v Dumay, 23 NY3d at 524, [*2]quoting People v Dreyden, 15 NY3d at 103). " 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]).

In this case, other than the allegation that the incident occurred in the St. George Staten Island Ferry Terminal, nothing in the factual part of the accusatory instrument alleged that defendant's acts had a public dimension, as is required for a charge of disorderly conduct (see People v Baker, 20 NY3d 354, 359 [2013]; People v Weaver, 16 NY3d 123, 128 [2011]; People v Munafo, 50 NY2d 326, 331 [1980]; People v Badue, 22 Misc 3d 137[A], 2009 NY Slip Op 50339[U] [App Term, 9th & 10th Jud Dists 2009]). Instead, the accusatory instrument alleged that the officer experienced annoyance and alarm. There are no factual allegations as to whether there were bystanders or spectators who noticed defendant yelling obscenities and crude comments at a police officer, and/or whether there was a risk of any public inconvenience, annoyance or alarm as a result of defendant's conduct (see Penal Law § 240.20 [1]). Thus, the accusatory instrument failed to describe a situation "that carried beyond the concern of [the] individual disputants" (People v Munafo, 50 NY2d at 331; see People v Carter, 25 Misc 3d 1210[A], 2009 NY Slip Op 52016[U] [Nassau Dist Ct 2009]; People v Ferreira, 10 Misc 3d 441, 445 [Crim Ct, NY County 2005]; cf. People v Gonzalez, 112 AD3d 440, 441 [2013], lv granted 22 NY3d 1199 [2014]; People v Terry, 34 Misc 3d 144[A], 2012 NY Slip Op 50110[U] [App Term, 1st Dept 2012]).

Furthermore, the allegation that defendant cursed at the officer, yelled that another officer who had been shot in the face deserved it, and yelled that "you guys are going to get yours," did not constitute "violent, tumultuous or threatening behavior" (Penal Law § 240.20 [1]). Nor did the statements constitute a direct and credible threat that defendant would harm the officer, or fighting words. Rather, they were a crude and offensive outburst, which is a form of protected speech (see People v Castro, 29 Misc 3d 1217[A], 2010 NY Slip Op 51859[U] [Sup Ct, Bronx County 2010]; People v Stephen, 153 Misc 2d 382, 383-386 [Crim Ct, NY County 1992]; Posr v Court Officer Shield # 207, 180 F3d 409, 415-416 [2d Cir 1999]; see also People v Todaro, 26 NY2d 325, 330 [1970]). Consequently, the allegations of the accusatory instrument with respect to the charge of disorderly conduct were jurisdictionally deficient as they did not meet the reasonable cause requirement.

The People correctly concede that the accusatory instrument also contains insufficient factual allegations to meet the reasonable cause requirement as to the charge of harassment in the second degree, as there are no allegations that defendant, with intent to annoy, harass, or alarm the officer, engaged in any physical contact with the officer, or that defendant threatened to do so (Penal Law § 240.26 [1]; see People v Bartkow, 96 NY2d 770, 772 [2001]; People v Todaro, 26 NY2d at 330; Lynn v State of New York, 33 AD3d 673, 674 [2006]; People v Shehabeldin, 39 Misc 3d 149[A], 2013 NY Slip Op 50942[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also People v Dietze, 75 NY2d 47, 51-53 [1989]). Defendant's alleged statement to the officer, that "you guys are going to get yours," was a hypothetical, non-serious outburst, not a clear or present threat of serious evil. Moreover, it was directed at police officers in general and not specifically at the arresting officer.

As there were insufficient allegations in the accusatory instrument to establish reasonable cause to believe that defendant committed the offenses of disorderly conduct and harassment in the second degree, the misdemeanor complaint failed to set forth facts establishing reasonable cause to believe that defendant's arrest was authorized, a necessary element of the offense of resisting arrest (see Penal Law § 205.30; People v Jensen, 86 NY2d 248 [1995]; People v Alejandro, 70 NY2d 133 [1987]). Consequently, the resisting arrest charge and, as a result, the entire accusatory instrument, must be dismissed.

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

Aliotta, J.P., Pesce and Solomon, JJ., concur.