The defendant was arraigned on April 18, 2010 and charged with Aggravated Harassment in the Second Degree [PL § 240.30(1)(a)], a class "A" misdemeanor, for an incident which allegedly occurred on March 24, 2010.

Penal Law § 240.30(1)(a) provides that a person is guilty of aggravated harassment in the second degree when, in pertinent part, "with intent to harass, annoy, threaten or alarm another person he or she: communicates with a person, anonymously or otherwise, by telephone ... in a manner likely to cause annoyance or alarm."

The criminal court complaint states, in pertinent part, that "Deponent (Police Officer Manuel Sepulveda) is informed by Toni Scarito that, on the above date, time and location, (March 24, 2010 at about 2210 hours inside 80 Rugby Avenue) the defendant did call the informant on her cell phone, curse at her, demand to know where his guns were, and, when informant indicated that she did not know what the defendant was talking about, the defendant stated, in sum and substance, YOU'LL SEE WHAT HAPPENS TO YOU."

The People subsequently filed a supporting deposition from Toni Scarito which indicated that the facts in the complaint furnished by her were true upon personal knowledge except that the call was at "1010 hours" and "I was inside 2900 Amboy Road at the time I received the phone call."

In a motion submitted on November 14, 2011, the defendant moves for an [*2]order dismissing the accusatory instrument for facial insufficiency pursuant to CPL § 170.35 contending that the instrument in question does not sufficiently plead the elements of PL § 240.30 because the original complaint contains hearsay allegations, and the accusatory instrument and the supporting deposition do not make out reasonable cause to believe the defendant committed the offense charged and is so lacking in factual allegations that a prima facie case is not made out due in part to the inconsistency between the accusatory instrument and the supporting deposition with regard to the time and place of occurrence.

The People have opposed the motion.

The issue before the court is whether an accusatory instrument is facially insufficient and must be dismissed when a supporting deposition alleges that the crime occurred at a different time and place.

Upon consideration of the court file and the applicable law, the Court denies the defendant's motion since the "time" and "place" are not elements of the crime of Aggravated Harassment in the Second Degree.

Defendant's initial contention, that the "complaint is defective on its face" and must be dismissed pursuant to CPL § 100.40 because the complaint "sworn to by Police Officer Sepulveda, who was informed of the allegation by Toni Scarito" is "a hearsay statement" is without merit and his parallel request for dismissal - that the People did not file a second amended instrument after filing the supporting deposition overlooks basic procedural rules.

The original accusatory instrument is a Misdemeanor Complaint which may serve to commence a criminal action but not the ultimate prosecution thereof (CPL §§§ 1.20; 100.05; 100.10). The factual portion of a misdemeanor complaint may be based upon personal knowledge of the complainant or upon information and belief (CPL § 100.15(3). Thus, by its very definition, a misdemeanor complaint may contain hearsay. A supporting deposition, in sum and substance, must be subscribed and verified by a person other than the complainant and must contain factual allegations of an evidentiary character based upon personal knowledge which supplement those of the accusatory instrument and tend to support the charge contained therein [CPL § 100.20]. The supporting deposition filed in this case does not controvert or contradict any of the factual elements alleged by Detective Sepulveda. When, as here, the People file a supporting deposition, which tends to support the charge contained in the misdemeanor complaint, there is no need, as defendant seems to suggest, for them to file a separate and distinct information. CPL § 170.65(1) states in pertinent part that "If the misdemeanor [*3]complaint is supplemented by a supporting deposition and such instruments taken together satisfy the requirements for a valid information, such misdemeanor complaint is deemed to have been converted and to constitute a replacing information." Thus, Defendant's request for dismissal based on these procedural grounds is without merit.

Defendant's contention that the inconsistency between the accusatory instrument and the supporting deposition as to the place and time of the alleged crime requires dismissal is not accepted by the Court.

The procedural requirements for the factual portion of a local criminal court information are, simply: that it state facts of an evidentiary character supporting or tending to support the charges' (CPL 100.15 [3]; see, CPL 100.40 [1] [a]); that the allegations of the factual part . . . together with those of any supporting depositions . . . provide reasonable cause to believe that the defendant committed the offense charged'(CPL 100.40 [1] [b]); and that the [non-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof'(CPL 100.40 [1] [c]; see, CPL 100.15 [3])." (People v. Casey, 95 NY2d 354, 360 [2005])

In this case the People have met both the "reasonable cause" and "prima facie" case requirements. (People v. Kalin, 12 NY3d 225, 228 [2009]).

Although the supporting definition differs from the complaint as to the time and place of the offense, but retains the same date, this does not make the accusatory instrument deficient. CPL 100.20 "does not require that a supporting deposition contain the same facts' as are alleged in the accusatory instrument" (People v. Modica, 187 Misc 2d 635, 637 [Crim. Ct. Richmond Co., 2001]). "It is well settled that except where time is a material ingredient of the crime the prosecution is not confined in its evidence to the precise date laid in the indictment, but may prove that the offense was committed at any time prior to the commencement of the prosecution and such proof does not constitute a material variance" (People v. Cunningham, 48 NY2d 938, 940 [1979]; see also People v. Pryce, 19 AD3d 514 [2nd Dept., 2005] appeal den 5 NY3d 832 [2005]; People v. Rosenblum, 218 AD2d 823, 824 [2nd Dept., 1995]). Since time is not an element of Aggravated Harassment in the Second Degree, the People have sufficiently advised defendant of what he is charged with (See, People v. Del Pilar, 177 AD2d 642 [2nd Dept., 1991]; People v. Huhn, 140 AD2d 760 [3rd Dept., 1988], appeal denied, 72 NY2d 919 [1988]). "The purpose of requiring nonhearsay allegations establishing every element of the charged crimes is to assure that there exists a sound and supportable basis for subjecting the accused to a trial" (In the Matter of [*4]Edward B., 80 NY2d 458 [1992]). Here, contrary to defendant's assertions, the informant does not indicate that any of the factual portions of the complaint are in error. Upon a fair reading of the accusatory instrument and a review of the definition of the crime of Aggravated Harassment in the Second Degree, the statement of facts of an evidentiary nature, affirmed by Toni Scarito, and viewed in a light most favorable to the People, make out reasonable cause to believe that the defendant called the informant and said things to her, in the nature of curses and threats, which would cause her to be annoyed or alarmed. Additionally, the factual allegations, if uncontroverted and accepted as true, satisfy the "prima facie" requirement since they sufficiently make out the elements of the crime charged. The specific time the offense was committed is not an element of the crime.

For purposes of facial sufficiency, "[s]o long as the factual allegations of an information give the accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense," the court should give the pleadings "[a] fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354 [2000]). At the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges (People v Allen, 92 NY2d 378 [1998]). The People need only present prima facie evidence of a defendant's commission of the charged offenses and there is no particular requirement as to the quantum of evidence that must be alleged in an information to support any element of a particular charge (see CPL 100.15 [3]; CPL 100.40 [1]; People v Casey, 95 NY2d 354, supra; People v Kalin, 12 NY3d 225 [2009]).

Additionally, even if the complaint was insufficient, dismissal is not warranted pursuant to CPL §140.45, which states that the court must dismiss a local criminal court instrument if it is facially insufficient and "the court is satisfied that on the basis of the available facts or evidence it would be impossible (emphasis added) to draw and file an accusatory instrument which is sufficient on its face." Clearly, this is not the case since Toni Scarito corrects any infirmities in the accusatory instrument with her supporting deposition and these infirmities do not relate to whether or not the defendant is the person who committed the alleged crime and whether or not the elements of the crime are supported by factual allegations.

Finally, while the specific address of the alleged crime in each document is different, it is uncontroverted that jurisdiction for the offense is established in the County of Richmond. Thus the specific place that the informant received the call [*5]or for that matter where the defendant allegedly placed it from, is not an element of the crime charged and is of no import since the alleged crime was not committed in person but rather over the telephone and thus no alibi considerations are involved.

Accordingly, Defendant's motion to dismiss is denied.

Dated: February 17, 2012

Staten Island, New York

__________________________

Hon. Mario F. Mattei

Judge of the Criminal Court