The defendant, charged with three counts of Aggravated Harassment in the Second Degree (P.L. §§ 240.30(1)(a), (1)(b), & 240.30(2)), and one count of Harassment in the Second Degree (P.L. § 240.26(1)), now moves, pursuant to C.P.L. § 30.30(1)(b) for an order dismissing accusatory instrument on two grounds: that the accusatory instrument is facially insufficient, and that the People did not timely have a valid certificate of compliance with Article 245.

After careful review of the defendant's motion, the People's response, the defendant's reply, and all relevant legal authority the defendant's motion to dismiss for facial insufficiency is granted. The motion challenging the People's Certificate of Compliance is denied. The Court finds 127 days chargeable against the People.

In order to be facially sufficient, an information, together with any supporting depositions, must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. See C.P.L. § 100.40(1)(a)-(c); see also People v. Dumas, 68 NY2d 729 (1986); People v. Alejandro, 70 NY2d 133 (1987); People v. McDermott, 69 NY2d 889 (1987); People v. Case, 42 NY2d 98 (1977). This does not require that the accusatory instrument state facts that would prove the defendant's guilt beyond a reasonable doubt, but rather that it contain allegations of fact that "give an accused notice sufficient to prepare a defense and [which] are adequately detailed to prevent a defendant from being tried twice for the same offense[.]" People v. Casey, 95 NY2d 354, 360 (2000). The Court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations. C.P.L. § 100.40(1)(c); People v. Alejandro, supra; People v. Henderson, 92 NY2d 677 (1999). In determining a motion for facial sufficiency, the Court may consider only the evidentiary allegations that lie within the four corners of the document and any annexed supporting depositions. See People v. Thomas, 4 NY3d 143, 146 (2005). A facial [*2]sufficiency defect is jurisdictional in nature and therefore may be raised at any time. See People v. Sabino, 51 Misc 3d 142(A) (App. Term 2d Dept. 2016).

The accusatory instrument in this case alleges that, "on or about and between" April 7, 2021, from 12:00 AM to 7:00 AM, at 202 York Street in Kings County, the informant, Ashkenaz Cain, "receive[d] multiple phone calls from defendant and that defendant did leave informant a voicemail message in which defendant threatened to beat up informant and informant's family and stated in sum and substance that defendant would violate informant." The informant further stated that the defendant's actions caused her "to fear physical injury and to become alarmed and annoyed."

A person commits Aggravated Harassment in the Second Degree under subsection 1 when, "with intent to harass another person," he communicates, or causes a communication to be initiated, by telephone, computer or any electronic means, or by mail, or any other form of communication, "a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person's same family or household . . . and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family or household." P.L. §§ 240.30(1)(a), (b). A person commits the same offense under subsection 2 "when, with intent to harass or threaten another person, he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication." P.L. § 240.30(2).

Although the aggravated harassment statute prohibits speech, the Court of Appeals has held that it does not violate the First Amendment of the United States Constitution. Specifically, subsection two prohibits "conduct (making a telephone call without any legitimate purpose of communication). The limiting clause which expressly excludes constitutionally protected speech from its reach plainly distinguishes this statute from those which impose criminal liability for 'pure speech.'" People v. Shack, 86 NY2d 529, 535 (1995) (emphasis added). The requirement that "the telephone call be made 'with no purpose of legitimate communication,' . . . distinguishes [P.L. § 240.30(2)] from other telephone harassment statutes that have been declared constitutionally overbroad." Id. at 537. The phrase "no purpose of legitimate communication" is "understood to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." Id. at 538. This limiting phrase establishes the constitutionality of the statute by "exclud[ing] from the statute's ambit speech which is merely unpleasant to the recipient." People v. Goldstein, 196 Misc 2d 741, 747 (App. Term 2d Dept. 2003).

Consequently, a body of case law has developed emphasizing the importance of specific factual allegations to support this element of the offense. See People v. Collezo, 130 AD3d 749 (2d Dept. 2015); People v. Gray, 40 Misc 3d 131(A) (App. Term 2d Dept. 2013). These cases make clear that it is not sufficient for the People to allege in a conclusory fashion that a harassing phone call was made with no legitimate purpose. See People v. Hassan, 63 Misc 3d 158(A) (App. Term 2d Dept. 2019); People v. Hargrove, 47 Misc 3d 136(A) (App. Term 2d Dept. 2015).

Nor is it sufficient that the People allege that threatening remarks were made in the context of a phone call, if the People fail to establish that the remarks were made in the context of a conversation initiated by a defendant who had no legitimate purpose of communication. See People v. Karantinidis, 2021 NY Slip Op 51245(U) (App. Term 2d Dept. 2021); People v. [*3]Stewart, 22 Misc 3d 131(A) (App. Term 2d Dept. 2009); People v. Singh, 1 Misc 3d 73 (App. Term 2d Dept. 2003). Instead, the People must allege facts from which the Court can reasonably conclude that the conversation was initiated without any legitimate purpose of communication. See People v. Lewis, 52 Misc 3d 134(A) (App. Term 2d Dept. 2016). A threatening remark made in the context of an otherwise legitimate conversation will not be enough to violate this statute. Because the People have alleged only facts relating to a threat, but no additional facts to establish reasonable cause to believe that the defendant had no legitimate purpose of communication, the complaint is facially insufficient.

Based on the foregoing, the Court makes the following calculations of includable time under C.P.L. § 30.30.

On July 20, 2021, the defendant was arraigned on a misdemeanor complaint on which the top count was a Class A misdemeanor. Therefore, the People had 90 days in which to be ready for trial. C.P.L. § 30.30(1)(b). The defendant was released on his own recognizance, and the case was adjourned to October 14, 2021 for the People to provide the necessary supporting deposition and to complete discovery.

On October 13, 2021, the People served and filed a supporting deposition, a certificate of compliance with discovery, and a statement of readiness for trial. The defendant has challenged the validity of the certificate of compliance based on five categories of undisclosed materials: text messages between the defendant and complainant; telephone records, voicemail metadata, or other authenticating documents; identification procedure materials; names, work affiliations and potential witness designations for three police officers; and underlying police misconduct records. The first two categories describe material which is not in the People's possession, custody, or control. The People state that no identification procedure materials exist; that they have already disclosed the names and work affiliations for all involved officers; and that they are not calling any police officers to testify, so no impeachment material needs to be disclosed. Therefore, these nondisclosures do not invalidate the People's certificate of compliance.

However, because the People did not have a valid accusatory instrument, due to the facial insufficiency of the count charging a violation of P.L. § 245.30(2), the People did not make a valid statement of readiness for trial. See C.P.L. § 30.30(5-a); People v. Caussade, 162 AD2d 4, 8 (2d Dept. 1990); People v. Garai, 2021 NY Slip Op 51199(U) (App. Term 2d Dept. 2021). Therefore, the People's statement of readiness made on October 13, 2021, was ineffective to stop the § 30.30 clock. See People v. Brown, 28 NY3d 392 (2016); People v. England, 84 NY2d 1 (1994).

Since the People did not make a valid statement of readiness for trial during this period, the entire adjournment is included.

86 chargeable days.

On October 14, 2021, the case was adjourned to November 18, 2021 for the defendant to review the disclosures made by the People, and to raise any necessary challenges to the People's certificate of compliance.

Although the People were not ready for trial, challenges to the People's certificate of compliance must be made by motion. C.P.L. § 245.50(4). Adjournments for motion practice are excluded. C.P.L. § 30.30(4)(a). Therefore, this adjournment is excluded.

0 chargeable days.

On November 18, 2021, the defendant objected to the People's October 13, 2021 certificate of compliance. The Court did not rule on the issue and adjourned the case for hearings and trial. The People had not previously made a valid statement of readiness and still did not have a facially sufficient accusatory instrument on which to proceed to trial. There is no indication in the record before the Court that the defendant consented to the adjournment or that this period is otherwise excluded, and so the People are charged.

However, on December 29, 2021, the People served and filed a motion for a Molineux and Sandoval decision, and so the clock stopped on that date. C.P.L. § 30.30(4)(a); see also People v. Singh, 288 AD2d 404 (2d Dept. 2001).

41 chargeable days.

On January 5, 2022, the case was adjourned to January 28, 2022 for decision on the People's Molineux/Sandoval motion and the defendant's instant motion to dismiss. Delays for motion practice are excluded. C.P.L. § 30.30(4)(a).

0 chargeable days.

Based on the foregoing, the People have accrued 127 chargeable days, and therefore have exceeded their statutory speedy trial time. For these reasons, the defendant's motion to dismiss is granted.

The foregoing constitutes the Decision and Order of the court.