Bronx Defenders (Robin G. Steinberg and Justine Olderman of counsel), for defendant.
Robert T. Johnson, District Attorney of Bronx County (Gia M. Cavellini of counsel), for plaintiff.
Diane Kiesel, J.
Defendant Onassis Torres was initially charged in a criminal court information with aggravated harassment in the second degree (Penal Law § 240.30 ), criminal contempt in the second degree (Penal Law § 215.50 ), and harassment in the second degree (Penal Law § 240.26) in connection with telephone calls he allegedly made to the complainant in violation of a full stay away order issued previously by a judge of the Bronx County Family Court (docket No. 2000BX054157). These calls were allegedly made on August 10, 2000.
The next day the defendant made an official complaint to police about the victim in the above-mentioned aggravated harassment case, specifically charging that she came to his home, demanded money for child support, became angry when she did not receive it, and, consequently, damaged his property. The People assert that the defendant's report to police is phony--initiated in retaliation for the aggravated harassment complaint brought against him the previous day. As a result, the defendant was charged in a second criminal court information with falsely reporting an incident in the third degree (Penal Law § 240.50  [a] [docket No. 2000BX062673]).
That complaint reads as follows:
" P.O . LORENZA ROBLES ... says that on or about August 11, 2000 ...
" Deponent states that, on 8/11/00 at 12:15 pm at 2877 Barkely Avenue defendant reported (UF 61#6977) that on08/10/00 between 1:30pm to 2:00pm at 230 Quincy Avenue, defendant's ex-girlfriend Kelly Seda came to defendant's home and demanded money for child support and that when defendant refused, said individual became angry and damaged defendant's vehicle tag.
" Deponent further states that on 08/10/00 at 1:30pm, the date and time which defendant stated Kelly Seda damaged his property, Kelly Seda was at the 45th Precinct filing a complaint (UF 61#6932) with deponent against the defendant for violation of a valid Order of Protection ... which had been issued against defendant. Deponent further states that said individual was with deponent between 12:15 pm and 1:45 pm, completing the complaint against the defendant."
The defendant now moves to dismiss the information for facial insufficiency arguing that (1) it fails to state the incident " did not in fact occur," in keeping with the statutory language; (2) Ms. Seda could, in fact, have committed the crime during the unaccounted-for period between 1:45 P.M . and 2:00 P.M .; and (3) it does not adequately allege the defendant had knowledge that the report he made to the police was false. For the reasons stated below, the defendant's motion is granted.
Penal Law § 240.50 (3), under which the defendant is charged, reads:
" A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or ...