Defendant, charged with Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(2), and Harassment in the Second Degree, in violation of Penal Law § 240.26(1), moves to dismiss the Aggravated Harassment charge. As discussed below, an Information charging a single threatening telephone call can make out a prima facie case of a violation of § 240.30(2), and this Court respectfully disagrees with those courts that have held otherwise. The Court also disagrees with those that have held that construing the statute in this manner has First Amendment implications. Accordingly, the motion to dismiss is DENIED.^[FN1] I. FACTUAL BACKGROUND

According to the accusatory instrument, on the afternoon of January 13, 2014, defendant placed a telephone call to the complainant, his mother, in which he threatened to kill her and others.

Defendant was arraigned on April 25, 2014, on a Misdemeanor Complaint that charged him with one count of Aggravated Harassment in the Second Degree, in violation of Penal Law §§ 240.30(1)(a), and one count of Harassment in the Second Degree, in violation of Penal Law § 240.26(1). The Court released the defendant on his own recognizance and adjourned the case for conversion.

On May 22, 2014, off-calendar, the People filed a Certificate of Readiness and the Supporting Deposition of the complainant. On June 12, the People orally moved to add one count of Penal Law § 240.30(2) and to dismiss the count charging the defendant with violating Penal Law § 240.30(1)(a), pursuant to People v. Golb, __N.E.3d__, 2014 WL 1883943 (2014) (holding that § 240.30(1)(a) is unconstitutional). The Court granted both motions. Defendant moved to dismiss the [*2]§ 240.30(2) count on July 11. People responded to the motion to dismiss on July 22, and the matter has been sub judice since then.

The Misdemeanor Complaint, sworn out by Detective Efrain Curet, provides as follows:

The allegation that defendant telephoned the complainant and threatened to come to her home and kill her and others makes out a prima facie case of a violation of Penal Law § 240.30(2). The allegation of a single, threatening phone call is sufficient, and there are no countervailing First Amendment considerations that might warrant a different outcome.

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 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.

The version of 240.30(2) applicable here made it a Class A Misdemeanor to, "with intent to harass, annoy, threaten or alarm another person," make "a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication." This section criminalizes those telephonic communications that lack any "expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." People v. Shack, 86 NY2d 529, 538, 658 N.E.2d 706, 712, 634 N.Y.S.2d 660, 666 (1995). The phrase " no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten." People v. Stuart, 100 NY2d 412, 428, 797 N.E.2d 28, 41, 765 N.Y.S.2d 1, 14 (2003).

Determining whether an information charging a violation of § 240.30(2) sufficiently pleads intent requires an examination of the context, timing and number of the telephone calls, their content, if any, and whether efforts to communicate continued after a demand that they cease. See People v. Mitchell, 24 Misc 3d 1249(A), 899 N.Y.S.2d 62 (Crim Ct Bronx County 2009); People v. Bamba, 15 Misc 3d 1122(A), 841 N.Y.S.2d 220 (Crim Ct New York County) (2007); People v. Coyle, 186 Misc 2d 772, 719 N.Y.S.2d 818 (Dist Ct Nassau County 2000); cf. People v. Thompson, 28 Misc 3d 483, 905 N.Y.S.2d 449 (Crim Ct Kings County 2010) (information that simply alleged that defendant repeatedly called complainant during a range of dates was insufficient; no allegation as to the number of calls, their frequency or timing, or that complainant told defendant to stop).

An information describing a single call can make out a prima facie case, People v. Coyle, 186 Misc 2d 772, 719 N.Y.S.2d 818 (Dist .Ct. Nassau County 2000), as long as there is a sufficient showing of the requisite intent. Shack, 86 NY2d at 541, 658 N.E.2d at 714, 634 N.Y.S.2d at 668. Thus, for example, in People v. Olivo, 6 Misc 3d 1034(A), 800 N.Y.S.2d 353 (Crim. Ct. NY County 2005), an information alleging that defendant, in a single call, threatened to "fuck up" the complainant was facially sufficient.

2. The Allegation of a Single Threatening Telephone Call Here Is Sufficient

Here, likewise, the Information's description of defendant's telephone call to the complainant reveals no purpose other than to threaten or intimidate her. Defendant telephoned and said that he and his associates were going to come to the complainant's home and kill her and others with a "gat." And there is a reasonable inference that by "gat," defendant meant either a gun or some other type of dangerous weapon. See People v. Surles, 31 Misc 3d 1242(A), 932 N.Y.S.2d 762 (Rochester City Court 2011) (defendant told a deputy sheriff that he had "gats and guns").^[FN2] This case is categorically different from those in which there was a single telephone call and the court found that the intent element was not sufficiently pled. In People v. Alfano, 5 Misc 3d 780, 783 N.Y.S.2d 799 (Just. Ct. Town of Webster 2004), the communication involved the defendant's accusation that the complainant was having an affair and was lying about it. Similarly, in People v. Goris, 39 Misc 3d 1217(A), 975 N.Y.S.2d 368 (Crim Ct Kings County 2013), the information alleged that the defendant asked the complainant why she was being "disrespectful" by not picking up the phone. But the communications in those cases did not contain the type of explicit threat of [*3]extreme violence that is alleged here.

3. The Court Disagrees with those Cases Holding Otherwise

The extent that some cases have held that an information that alleges a single threatening communication does not make out a prima facie case, e.g., Peoplev. Singh, 1 Misc 3d 73, 770 N.Y.S.2d 560 (App. Term 2d & 11th Dists 2003); People v. Cruz, 44 Misc 3d 640, 989 N.Y.S.2d 279 (Crim Ct Queens County 2014), the Court respectfully disagrees with those cases' analysis of the statute's requirements. These cases require that the Information plead both the intent to "harass, annoy, threaten or alarm another person" and that the communication had "no legitimate purpose." For example, Singh holds that "the mere recitation, in the accusatory instrument, of defendant's threat to the complainants does not establish [the no legitimate purpose'] element." 1 Misc 3d at 74, 770 N.Y.S.2d at 561. See also People v. Stewart, 22 Misc 3d 131(A), 880 N.Y.S.2d 875 (App. Term 2d, 11th & 13th Dists. 2009) (following Singh, and holding that information alleging threatening communication was insufficient for failing to separately allege that the phone call lacked a legitimate purpose). In Cruz, similarly, where the information alleged that defendant telephoned the complainant and threatened to "trash" her apartment, the court concluded that something more than the threat was required in order to plead the "no legitimate purpose" element. 44 Misc 3d at 640, 989 N.Y.S.2d at 279.

These cases have concluded, in essence, that the statute contains two distinct intent elements and that each must be separately pled. But that is not a fair reading of the section. Rather, the statute is best understood as containing a single intent element that has two dimensions: the telephone call must have had have "no legitimate purpose" in that its purpose was "to harass, annoy, threaten or alarm another person." See Stuart, 100 NY2d at 428, 797 N.E.2d 28 at 765 N.Y.S.2d at 14 (defining "no legitimate purpose" as, unsurprisingly, a communication that has no purpose other than an illegitimate one). Any other reading of the statute would be absurd, as it would be predicated on the possibility that a person might make a telephone call that was intended to harass, annoy, threaten or alarm, but that at the same time had a legitimate purpose. There simply is no such thing; it is the illegitimacy of the intended purpose that makes the placing of such a call a criminal offense in the first place. The Court therefore concludes that, as long as the Information pleads facts that support a finding that the defendant made a telephone call that was intended to harass, annoy, threaten or frighten the recipient, those same facts also support a finding that the call had "no legitimate purpose."

To be sure, there is language in Shack that might be construed to mean that "no legitimate purpose" and intent to harass, annoy, threaten, etc., are separate elements. That decision at one point notes that § 240.30(2) "imposes criminal liability for making a single telephone call, if placed with the requisite intent and lack of legitimate purpose." 86 NY2d at 541, 658 N.E.2d at 714, 634 N.Y.S.2d at 668, emphasis added. But the quoted language is contained within a discussion of defendant's claim that the accusatory instrument lacked specificity because it did not identify the particular dates on which he was alleged to have made the charged calls, and specifically in the court's conclusion that § 240.30(2) makes out a continuing offense. Id. The court was not identifying the elements of the offense, and thus the quoted language is dicta as to that issue. See, e.g., People v. Suber, 19 NY3d 247, 969 N.E.2d 770, 946 N.Y.S.2d 552 (2012) (language "not essential to [the] holding[]" is dicta).

Finally, the Court respectfully disagrees with the conclusion in Cruz , 44 Misc 3d at 640, . 989 N.Y.S.2d at 279, that to construe the statute in this manner has adverse First Amendment implications. See id. (" [A]bsent some contextual or background allegations to show how the act of placing the call itself, rather than its content, is the culpable conduct, an application of ... § 240.30(2) to individual phone calls would constitute an impermissible end run around the First Amendment.") As this Court has observed, § 240.30(2) punishes conduct - the act of placing a telephone call - and not speech. People v. Dixon, 44 Misc 3d 1216(A) (Crim. Ct. NY County 2014) (Statsinger, J.):

Accordingly, the Information here makes out a prima facie case that defendant placed a call to the complainant with no legitimate purpose. The purpose of the call was to threaten and frighten the complainant, a purpose that is unequivocally illegitimate. The Information is therefore facially sufficient.D. Conclusion

The Information is facially sufficient. The motion to dismiss is accordingly denied.

The motion to dismiss is denied.

This constitutes the Decision and Order of the Court.