The defendant, Habib Bamba, is charged with eighteen counts of Aggravated Harassment in the Second Degree (Penal Law §240.30[2]), eighteen counts of Stalking in the Fourth Degree (Penal Law §120.45[1]), one count of Aggravated Harassment in the Second Degree (Penal Law §240.30[1][a]), and one count of Stalking in the Fourth Degree (Penal Law §120.45[2]). He moves, inter alia, to dismiss the accusatory instrument for facial insufficiency (see CPL 100.40[1][c], 170.30 [1][a], and 170.35[1][a]) and on speedy trial grounds (see CPL 30.30). For the reasons that follow, the defendant's motion to dismiss for facial insufficiency is granted to the extent that seventeen counts of Penal Law §120.45(1) are dismissed and fifteen counts of Penal Law §240.30(2) are dismissed. The defendant's motion to dismiss on speedy trial grounds is denied.

The instant information alleges that between March 28, 2005 and April 13, 2005, the defendant contacted the complainant approximately twelve times via phone and email. The information sets forth the content of the March 28, 2005 phone call and the email message of March 30, 2005, but does not state the substance of ten subsequent voicemail messages.

In addition, the information alleges that the complainant called the defendant on April 13, 2005, ordering him to refrain from contacting her and that the defendant subsequently contacted the complainant on June 8, 2005 by email, on May 7, 2006 by three voicemail messages, and on May 26, 2006 by two text messages.

The defendant argues that the information is facially insufficient since it fails to establish that the defendant's communications lack a legitimate purpose as required under both Penal Law §120.45(1) and Penal Law §240.30(2). The defendant also argues that the information does not support eighteen separate counts of Stalking in the Fourth Degree (Penal Law §120.45[1]) since each of the defendant's contacts cannot be considered separate courses of conduct. Further, the defendant argues that the case should be dismissed on speedy trial grounds since the People were never ready for trial within ninety days of the commencement of the action (see CPL 30.30).

The People concede that the information does not support eighteen separate counts of [*2]Stalking in the Fourth Degree. However, they argue that the eighteen original counts taken together, specifically the contacts subsequent to the complainant's April 13, 2005 directive, support a "course of conduct" which lacks any legitimate purpose and is sufficient to support one stalking count (see Penal Law §120.45[1]).

The People also concede that the information does not sufficiently support eighteen counts of Aggravated Harassment in the Second Degree. However, they argue that the six contacts subsequent to the complainant's April 13, 2005 directive lack any legitimate purpose and, therefore, are sufficient to support six counts of Penal Law §240.30(2). Finally, the People argue that no time should be charged to them because the parties were engaged in motion practice (see CPL 30.30[4][a]).

The defendant argues that the entire period between his arraignment on August 23, 2006 and the response and decision date should be charged to the People. The People argue in opposition that no time should be charged to them due to motion practice (see CPL 30.30[4][a]). For the reasons that follow, the defendant's motion is denied.

The People are required to announce their readiness for trial within ninety days from the commencement of the action where the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony (see CPL 30.30[1][b]). Once the defendant establishes the existence of a delay in excess of 90 days, the burden is on the People to show that the time should be excluded (see People v Santos, 68 NY2d 859 [1986]). After reviewing the adjournments in this case, the court finds as follows:

The defendant was issued a Desk Appearance Ticket on June 23, 2006 and appeared for arraignment on July 24, 2006. The People were unable to proceed on that date since they had not yet filed an accusatory instrument. The People subsequently filed an accusatory instrument and the court ordered the defendant to appear on August 23, 2006 for arraignment. This 30-day period, from July 24, 2006 to August 23, 2006, is chargeable to the People (see CPL 30.30[5][b]).

On August 23, 2006, the defendant was arraigned upon a misdemeanor information and the case was adjourned to October 30, 2006 for response and decision on the defendant's motion, which was to be filed off calendar by October 13, 2006. This period is excluded for motion practice and not chargeable to the People (see CPL 30.30[4][a]).

The defendant did not file his motion and the case was adjourned once again for motion practice. The court instructed the defendant to file his motion off calendar by December 5, 2006 and the case was adjourned to January 16, 2007 for response and decision. This period is excluded for motion practice and not chargeable to the People (see CPL 30.30[4][a]).

On December 5, 2006, the defendant filed the instant motion, and the People filed and served their response on January 16, 2007. The court adjourned the case to March 5, 2007 for written decision. This period is excluded for motion practice and not chargeable to the People (see CPL 30.30[4][a]).

The total amount of time charged is 30 days, which does not exceed the statutory 90-day [*3]time limit. Accordingly, the defendant's motion to dismiss on speedy trial grounds is denied (see CPL 30.30 [1][b]).

II. Facial Sufficiency

To be sufficient on its face, an information must provide reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged (see People v McNamara, 78 NY2d 626, 629 [1991], citing CPL 100.40[1][b],[c]; People v Alejandro, 70 NY2d 133, 136-137 [1987]). Mere conclusory allegations are insufficient (see People v Dumas, 68 NY2d 729 [1986]) and a purported information which fails to meet these requirements is fatally defective (see People v Alejandro, supra at 136). An information should be given a non-technical reading so long as it gives the defendant sufficient notice to prepare a defense and will prevent him from being tried twice for the same crime (see People v Casey, 95 NY2d 354, 360 [2000]).

A. Stalking in the Fourth Degree

The People concede that the information is insufficient to support eighteen counts of Stalking in the Fourth Degree (Penal Law §120.45[1]), as each count does not constitute a separate course of conduct within the meaning of Penal Law §120.45(1). However, the defendant's eighteen separate contacts, taken together, constitute one course of conduct if they are deliberate, intentional, aimed at a specific individual, and lack a legitimate purpose (see People v Stuart, 100 NY2d 412, 427-429 [2003]). Inasmuch as the information establishes that the contacts were deliberate and aimed at a specific individual, the court must determine whether the contacts, when taken together, were intentional and lack a legitimate purpose.

The mens rea requirement of intent in Penal Law §120.45(1) is defined as intent to engage in a specific course of conduct, not intent to cause a specific result (see People v Stuart, supra at 427). The statute focuses on "what the offenders do, not what they mean by it or what they intend as their ultimate goal" (id. at 427). The instant information alleges that the defendant contacted the defendant on approximately eighteen different occasions, six of which occurred after the complainant ordered the defendant to stop calling. Therefore, taken as a whole, the information sufficiently alleges that the defendant intended to engage in a course of conduct specifically, to contact the complainant on numerous occasions (see Penal Law §120.45[1], People v Stuart, supra).

Finally, the People are required to allege that the defendant's course of conduct was for no legitimate purpose under Penal Law §120.45(1) to establish every element of the offense (see CPL 100.40[1][b],[c]). The term "no legitimate purpose" is defined as "the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten" (People v Stuart, supra at 428; see generally People v Shack, 86 NY2d 529 [1995]). Here, the defendant's course of conduct, as alleged in the information, establishes that he did in fact hound the complainant by contacting the complainant at least six times after being told not to do so. As such, the information is sufficient to support one count of Penal Law §120.45(1).

Although the defendant does not specifically challenge the facial sufficiency of Penal Law §120.45(2), the court determines, after its review of the information, that the subject charge is facially sufficient (see Penal Law §120.45[2]).

B. Aggravated Harassment in the Second Degree

Whereas the legitimacy language in Penal Law §120.45(1) states that "conduct" must be [*4]"for no legitimate purpose," the language in Penal Law §240.30(2) states that the "telephone call" in question must be made with no "purpose of legitimate communication." As such, under the aggravated harassment statute, each individual communication is analyzed rather than the overall course of conduct as in Penal Law §120.45(1) and pertains only to telephone calls.

The People concede that all communications that the defendant allegedly made to the complainant prior to the complainant's April 13, 2005 directive to cease communication, are not properly pleaded as to indicate the lack of a legitimate purpose. However, the People contend that the six communications allegedly occurring after the April 13, 2005 directive lack legitimacy, and therefore are sufficient to support six separate counts of Penal Law §240.30(2). These communications consist of the email message of June 8, 2006, the three telephone calls of May 7, 2006, and the two text messages of May 26, 2006.

However, the court notes that Penal Law §240.30(2) only expressly refers to telephone calls and is silent as to any other form of communication. Therefore, the email message of June 8, 2006 must be dismissed since it was not a telephone call, which is a necessary element of the offense (see CPL 100.40[1][b],[c]; Penal Law §240.30[2]). The two text messages of May 26, 2006 must also be dismissed for similar reasons. While a text message can be transmitted by a cellular phone, such message can similarly be transmitted without the use of a telephone, and the instant information fails to state whether the messages were transmitted by phone.

The three telephone calls of May 7, 2006 must lack any legitimate purpose of communication to be facially sufficient. This means that the phone calls must be made with "the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances" (People v Shack, supra at 538). While the statutory text refers to a single phone call, the statute may apply to a continuing offense over time (id. at 541). The content of each individual phone call allegedly placed on May 7, 2006 does not constitute the lack of ideas or thoughts other than threats or intimidating utterances. However, when the phone calls are placed in context, as part of a long-lasting pattern wherein the defendant allegedly placed three separate phone calls on the same day after the complainant instructed him not to do so (the first occurring at 7:00 a.m. and the last occurring at 11:30 p.m.), the legitimacy of such calls are questionable. Since the phone calls were allegedly placed quite early in the morning and very late at night and against the express wishes of the complainant, there is a prima facie showing that the defendant hounded the complainant and his justification in placing said calls lacks legitimacy (see People v Hernandez, 7 Misc 3d 857, 861-862 [Crim Ct, NY County 2005], citing People v Stuart, supra at 428 and People v Shack, supra).

Therefore, in light of the foregoing, three counts of Penal Law §240.30(2) sufficiently provide reasonable cause to believe that the defendant committed the offense and establish every element of the offense charged (see People v McNamara, supra; People v Alejandro, supra; CPL 100.40[1][b],[c]). The twelve counts attributed to the communications made before the complainant's April 13, 2005 directive are dismissed as being facially insufficient. Similarly, the three counts attributed to the two text messages of May 26, 2006 and the email of June 8, 2006 are dismissed as facially insufficient.

Although the defendant does not specifically challenge the facial sufficiency of Penal Law §240.30(1)(a), the court determines, after its review of the information, that the subject charge is facially sufficient (see Penal Law §240.30[1][a]).

[*5]III. Other Motions

The defendant's motion to suppress physical evidence is granted to the extent that a Dunaway/Mapp hearing is ordered.

The defendant's motion to preclude pursuant to CPL 710.30 is granted.

The defendant's Sandoval motion is referred to the trial court.

The defendant's motion for a Bill of Particulars and pretrial discovery is granted to the extent provided and included with the People's response.

The defendant's motion to make further motions is granted to the extent set forth under CPL 255.20(3).

The People are reminded of their continuing Brady, Rosario and related responsibilities.

Dated:New York, New York

March 5, 2007

Judge of the Criminal Court