Defendant, charged with stalking in the fourth degree, in violation of Penal Law § 120.45(1), moves to dismiss arguing, in the alternative, either that the misdemeanor complaint was never converted to an information or that, if it was, it is facially insufficient. For the reasons that follow, the motion is DENIED.

According to the misdemeanor complaint, at 3:30 a.m. on November 18, 2014, the complainant, who was at the time defendant's girlfriend, woke up and saw the defendant on her fire escape, looking at her. This was the second time in the past few months that she had seen the defendant on her fire escape.

Defendant was arraigned on November 29, 2014, on a misdemeanor complaint charging him with one count of stalking in the fourth degree, in violation of Penal Law § 120.45(1). The court released the defendant, and adjourned the case for conversion. On December 22, 2014, the People filed, off-calendar, a certificate of readiness and the complainant's supporting deposition. At the next calendar call, the Court set a motion schedule.

Defendant filed the instant motion to dismiss on February 4, 2015, and the People responded on March 3. The motion has been sub judice since then.

The misdemeanor complaint, sworn out by Detective Nicolas Rodriguez, provides, in relevant part, that:

Ms. Rotondi's supporting deposition, sworn to on December 22, 2014, verbifies that "the facts in [the] complaint that are attributed to me are true, and I know these facts from my personal knowledge." In a handwritten notation, Ms. Rotondi adds that "This happened at around 9 am on 11/21/2014 and was the 3rd time I saw him on the fire escape."

Defendant argues first that the complainant's handwritten emendation to the supporting deposition somehow nullified it and that, accordingly, the misdemeanor complaint was never converted. Defendant is wrong.

CPL § 100.20 provides that a supporting deposition is a written instrument accompanying or filed in connection with ... a misdemeanor complaint ... subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.

Case law clearly supports this reading of § 100.20. See id.; People v. Ochoa, 23 Misc 3d 1102(A), 881 N.Y.S.2d 366 (Crim Ct NY County 2009) (that supporting deposition and complaint contained differing factual allegations as to where marijuana was recovered did "not render the accusatory instrument facially insufficient"); People v. Donadeo, 44 Misc 3d 1202(A), 997 N.Y.S.2d 100 at *6 (Crim Ct Queens County 2014) ("variations between an accusatory instrument and any supporting deposition are not fatal"). See also People v. [*3]Blake, 6 Misc 3d 958, 791 N.Y.S.2d 912 (Crim Ct NY County 2005) (lab report that identified a drug different than that described in the complaint still converted complaint into an information).

Accordingly, here, the supporting deposition converted the misdemeanor complaint into an information, even though it contains facts that vary, to some slight degree - date, time and number of incidents - from those set out in the complaint. The supporting deposition is signed and sworn by the complainant, and "tend[s] to support the charge" contained in the misdemeanor complaint. CPL § 100.20. That the supporting deposition also "supplements," id., the factual allegations of the misdemeanor complaint is clearly permitted under the statute.

Finally, the Court notes that, even if it had found that the misdemeanor complaint was unconverted, dismissal would not have been the remedy. Adjournment for conversion would have been. See, e.g., People v. Rosario, 44 Misc 3d 1204(A), 997 N.Y.S.2d 100 (Crim Ct NY County 2014) (Statsinger, J.); People v. Rivera, 45 Misc 3d 386, 987 N.Y.S.2d 570 (Crim Ct NY County 2014) (Statsinger, J.) (adjourning for conversion on concluding that trademark affidavit did not convert the complaint).

The information here makes out a prima facie case of stalking in the third degree under Penal Law § 120.45(1). The motion to dismiss for facial insufficiency is accordingly denied.

1. Facial Insufficiency in General

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

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 [*4]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.

2. The Information Is Facially Sufficient

A person commits stalking in the fourth degree under Penal Law § 120.45(1) when he, as pertinent here, "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 ... is likely to cause reasonable fear of material harm to the physical health, safety or property of such person."

A reasonable inference as to each of these elements can be drawn from the facts alleged in the information. Defendant obviously placed himself on the complainant's fire escape "intentionally," and not by accident. And it is inconceivable that there could have been a "legitimate purpose" to this conduct other than to spy on, attempt to assert his control over, or otherwise terrorize the complainant. People v. Wong, 3 Misc 3d 274, 776 N.Y.S.2d 194 (Crim Ct 2004) (liability under the stalking statute arises from defendant's "repetitive trespass upon the complainant's privacy").

Moreover, the three times over a period of just a few months that defendant trespassed on the complainant's fire escape undoubtedly constituted a "course of conduct directed" at her specifically. A course of conduct is "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." People v. Kelly, 44 Misc 3d 1203(A), 997 N.Y.S.2d 100 (Crim Ct NY County 2014) (Statsinger, J.), citation and internal quotation marks omitted. In Kelly, the Court found a "course of conduct" in two acts within a six -week period. Id. The three acts here, which unfolded over two or three months, are not materially different.

While defendant argues that the additional language in the supporting deposition should change the sufficiency calculus in his favor, in fact that language does the opposite. While the misdemeanor complaint alleges two acts within a few months, reading the supporting deposition in conjunction with the complaint, as the Court must, increases that number from two to three. Thus, while even two acts would be sufficient to constitute a course of conduct, that the information actually alleges three of them clearly seals defendant's fate.

Finally, the information sufficiently pleads defendant's knowledge. Any reasonable person would understand that repeatedly mounting someone else's fire escape and staring at that person through the window would be "likely to cause reasonable fear of material harm to the physical health, safety or property of such person."

Accordingly, since the information here make out a prima facie case as to each element of Penal Law § 120.45(1), it is facially sufficient.

For the foregoing reasons, defendant's motion to dismiss for facial insufficiency is denied as.