Defendant is accused of threatening the complainant over the telephone. However, the information does not explain how the complainant knew that defendant was the person who made the threat. This "conclusory allegation" as to the identity of the caller renders the information facially insufficient. Defendant's motion to dismiss is GRANTED with leave to the People to supersede. Sealing is stayed for 30 days.

According to the accusatory instrument, the complainant here, Vitaly Flipchenko, provided moving services to a woman named Sylvia. In connection with this, they communicated through Sylvia's cell phone. Sylvia and Flipchenko ended up in small claims litigation over the moving services.

On February 25, 2015, Flipchenko received a call from Sylvia's number. Flipchenko has alleged that during this call, the defendant, who is not Sylvia, threatened to beat up Flipchenko and destroy his business. The call caused Flipchenko to fear for his safety.

Defendant filed the instant motion on June 1, 2015, and the matter has been sub judice since then.

The misdemeanor complaint, sworn out by Detective Robert Lotufo, provides that

Defendant argues that the information is facially insufficient because it does not allege a basis for the complainant's assertion that this defendant is the person who made the threatening telephone call. For the reasons that follow, the Court agrees.

An 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 ( 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987) . Accordingly, an information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." Kalin, 12 NY3d at 228-29, 906 N.E.2d at 383, 878 N.Y.S.2d at 655 (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)), emphasis added. 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 a defendant's identity beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). But, nevertheless, there must be a reasonable basis for concluding that the defendant before the court is the person who committed the charged offense or offenses. See, e.g., People v. DeFreitas, ___ Misc 3d ___, 2015 WL 1897624 (Crim Ct NY County 2015).

For an information to sufficiently allege defendant's identity as the perpetrator, as for any other element, the accusatory instrument must contain "facts of an evidentiary character" that support it. CPL § 100.15(3). The Court of Appeals has repeatedly held that "conclusory allegations" are not [*2]"facts of an evidentiary character." Thus, for example, in People v. Dumas, 68 NY2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986), an accusatory instrument was insufficient when it contained "a conclusory statement that the defendant sold marihuana, but [was not] supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana." Similarly, in People v. Dryden, 15 NY3d 100, 104, 905 N.Y.S.2d 542, 931 N.E.2d 526 (2010), the same was true for a "conclusory statement that an object recovered from a defendant is a gravity knife." At a minimum, the accusatory instrument should have "explain[ed] briefly, with reference to [the deponent's] training and experience, how he or she formed the belief that the object observed in defendant's possession was a gravity knife." Id. Finally, In People v. Lebron, 22 Misc 3d 217, 220—21, 866 N.Y.S.2d 560 (Crim Ct NY County 2008), the court found facially insufficient an instrument charging the defendant with possessing drugs and drug paraphernalia recovered from "the defendant's apartment," absent "evidentiary facts" that would support the conclusion that the defendant "owned or occupied" the apartment. See also People v. Taylor-Atkins, 42 Misc 3d 1214(A), 986 N.Y.S.2d 867 (Crim. Ct. NY County 2014) (same, where allegation was that police officer found marijuana in "defendant's locker").

A fact of an "evidentiary character" is a "nonconclusory description[] of what the deponent personally observed, heard or experienced." People v. Concepcion, 36 Misc 3d 551, 945 N.Y.S.2d 543 (Crim. Ct. NY County 2012) (citing Dumas). It is "the written equivalent of competent and relevant testimony which the deponent could give orally if called as a witness." People v. Phillipe, 42 Misc 2d 574, 578, 538 N.Y.S.2d 400, 404 (Crim. Ct. Kings County 1989 ). Thus, where the fact at issue is a conclusion that derives solely from another fact or facts that have not been alleged, that fact is a "conclusory allegation" - whether it be the claim that a substance is marijuana, or the claim that a knife is a prohibited gravity knife, or the claim that the defendant is the person who made a threatening telephone call.

By contrast, where the fact at issue can reasonably be determined from other facts alleged, it is not a "conclusory allegation." Thus, for example, in People v. Santos, 46 Misc 3d 1217(A), 9 N.Y.S.3d 595 (Crim Ct. NY County 2015), this Court found that the allegation that drugs were recovered from the "defendant's purse" was not a conclusory allegation. Rather, "[d]efendant's ownership of the purse [was] a reasonable inference that derive[d] from other facts pled: defendant was present in the same room as the purse, and other items belonging to her were also in the room."

Similarly, in People v. Morris, 44 Misc 3d 810, 991 N.Y.S.2d 288 (Crim. Ct. NY County 2014), a deponent's allegation that she suffered "substantial pain" was not a "conclusory allegation" because it could reasonably be determined from other facts that were alleged; specifically, that the defendant "slapped the complainant and bit her in the shoulder" in the context of an "argument" in which the parties were "fighting."

But the instant case is distinguishable from Santos and Morris. The allegation that defendant is the person who threatened the complainant over the telephone is clearly a "conclusory allegation," since it is utterly without any factual support. Defendant's identity as the caller, if indeed he was, must therefore derive solely from some other fact that is not pled. Perhaps defendant identified himself in the call, or perhaps the complainant recognized defendant's voice. But the issue remains shrouded in mystery, since no basis for the conclusion that defendant is the caller was pled.

One thing is perfectly clear, however - absent some further factual allegation, the complainant [*3]did not identify the defendant based on the telephone number. The accusatory instrument is quite specific that the telephone from which the complainant received the call belonged to Sylvia, the disgruntled moving customer, and does not allege that it belonged to this defendant.

Accordingly, since the information does not plead facts of an "evidentiary character" leading to a reasonable inference that this defendant is the person who threatened the complainant over the telephone, it is facially insufficient.

This is a case where there might be additional facts available to the People that, if properly pled, could cure the insufficiency. Accordingly, while the Court is dismissing the information, it does so with leave to the People to supersede. Sealing is stayed for 30 days.

For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is granted, with leave to the People to supersede. Sealing is stayed for 30 days.