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People v. Murray

Criminal Court of the City of New York, Kings County

June 16, 2017

The People of the State of New York, Plaintiff,
v.
Alfred Murray, Defendant.

          For the People: Kings County District Attorney's Office by James Castle, Esq.

          For the defendant: Brooklyn Defender Services by Theodore Hastings, Esq.

          ELIZABETH N. WARIN, J.

         The defendant is charged with Criminal Contempt in the Third Degree in violation of Penal Law § 215.50(3) and Harassment in the Second Degree in violation of Penal Law § 240.26(1). By motion filed on March 30, 2017, the defendant moves to dismiss the accusatory instrument for facial insufficiency. On April 13, 2017, the People filed a response. For the reasons stated below, defendant's motion to dismiss the harassment charge is GRANTED. Defendant's motion to dismiss the contempt charge is DENIED.

         I. MOTION TO DISMISS FOR FACIAL INSUFFICIENCY

          A. Legal Sufficiency Standard

         Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. The failure to satisfy these requirements creates a jurisdictional defect to the criminal action, thus warranting dismissal (see People v Alejandro, 70 N.Y.2d 133, 137 [1987]; People v Kalin, 12 N.Y.3d 225, 229 [2009]).

         When analyzing whether the factual allegations of an information provide reasonable cause to believe that the defendant committed the charged offense, it is important to keep in mind the definition of reasonable cause provided by the Legislature in Criminal Procedure Law § 70.10 (2):

" 'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it"

(CPL § 70.10 (2)). The standard required for this prima facie case is thus a far cry from the burden of proof required at trial (People v Henderson, 92 N.Y.2d 677, 680 [1999]). Indeed, "[s]o long as the factual allegations of an information give an 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 must give the information "a fair and not overly restrictive or technical reading" (People v Casey, 95 N.Y.2d 354, 360 [2000]; Kalin, 12 N.Y.3d at 225).

         B. Factual Allegations

         The complaint alleges that on February 15, 2017, defendant stated to Maureen McCallum, in sum and substance, "you wicked bitch, today for me tomorrow for you, watch and see what I'm going to do" (see Superseding Compl. at 1). Defendant's conduct allegedly violated a Kings County Family Court order of protection issued on January 19, 2017 and in effect until February 17, 2017, which directed him to refrain from harassing, intimidating or threatening Maureen McCallum. The complaint further states that Ms. McCallum is "tired of this abuse in [her] home" (id.) . The People filed a copy of the order of protection, with proof of service as well as the domestic incident report sworn to by Ms. McCallum on February 15, 2017.

         C. Penal Law § 240.26(1)

         "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person" he "strikes, shoves, kicks or otherwise subjects such other person to physical contact or threatens to do the same" (PL § 240.26(1)). "The crux of section 240.26 (1) is the element of physical contact: actual, attempted or threatened" (People v Bartkow, 96 N.Y.2d 770, 772 [2001]). In People v Raymond Moreno, 47 Misc.3d 138 (A) (App Term 2d Dept 2015), a defendant cursed at a police officer inside the ferry terminal, stating "fuck you, the cop that got shot in the face deserved it, you guys are going to get yours." The court held these allegations were insufficient to show reasonable cause that the defendant engaged in harassment in the second degree as there was no indication that the defendant engaged in physical contact or threatened to do so (Moreno, at *4). The court further held that defendant's comments that "you guys are going to get ...


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