People v. Shropshire

Santoro & DiRe, P. C., Staten Island (Mario DiRe of counsel), for defendant. William L. Murphy, District Attorney of Richmond County, Staten Island (Jason Leventhal of counsel), for plaintiff.

OPINION OF THE COURT

WILLIAM E. GARNETT, J. The defendant, charged with four counts of aggravated harassment in the second degree in violation of Penal Law § 240.30 (1) and four counts of aggravated harassment in the second degree in violation of Penal Law § 240.30 (2), seeks to dismiss the charges against her on the ground that the accusatory instrument is facially insufficient. (CPL 170.35.) Alternatively, the defendant moves to dismiss the charges for failure of the People to have afforded her a speedy trial pursuant to CPL 30.30.

Facial Sufficiency

Is information left by a defendant with a beeper a "communication" within the definition of Penal Law § 240.30 (1)? The defense has moved to dismiss, as facially insufficient, the charges contained in the information. The People have charged the defendant with four counts of aggravated harassment in the second degree pursuant to Penal Law § 240.30 (1) and, in the alternative, with four counts of the same crime pursuant to Penal Law § 240.30 (2). Subdivision (1) of Penal Law § 240.30, as pertinent to the facts in this case, requires that the People establish that a defendant, with intent to harass, annoy, threaten or alarm another person, communicates with a person anonymously or otherwise, by telephone in a manner likely to cause annoyance or alarm. Subdivision (2) of the same statute requires the prosecution to prove that a defendant, with the same intent as required for a violation of subdivision (1), makes a telephone private contact information. Thus, the complainant's expectation that the private information that he had provided to Bell Atlantic for business purposes only was violated by the defendant. The defendant breached a substantial privacy interest by obtaining the complainant's and his girlfriend's home phone numbers without their permission and without any legitimate business purpose. Therefore, even if these communications are deemed less ominous, they constitute a violation of subdivision (1) as the defendant, with intent to harass or annoy, utilized them for the purpose of annoyance. The defense has also argued that the prosecution has failed to establish that the defendant had no purpose of legitimate communication as required to prove a violation of Penal Law § 240.30 (2). The information establishes that the defendant, an employee of Bell Atlantic, accessed private information contained in Bell Atlantic's records including information about the complainant and his girlfriend in nonpublished accounts. If the defendant had a legitimate reason for initiating contact with the complainant or the complainant's girlfriend, why did the defendant leave her home phone number rather than her business phone number? Why did the defendant initiate any putative, legitimate inquiry by beeping the complainant with his phone number and his girlfriend's number followed by "911"? These rhetorical questions demonstrate that the facts alleged show prima facie that the defendant had no purpose of legitimate communication when she beeped the complainant. In conclusion, the motions to dismiss, as facially insufficient, the six counts of aggravated harassment in the second degree as to these three beeps are denied.

CPL 30.30

The defendant has moved to dismiss the charges against her for failure of the People to have afforded her a speedy trial pursuant to CPL 30.30. Inasmuch as the defendant is charged with class A misdemeanors, CPL 30.30 (1) (b) mandates that the People be ready for trial within 90 days. Failure to be ready within 90 days from the commencement of the criminal action will result in the dismissal of the information unless the prosecution can show that certain time periods are excluded. ( People v Berkowitz, 50 NY2d 333 [1980].) On August 7, 1998, the defendant was arraigned on a misdemeanor complaint and the case was adjourned for conversion by the prosecution to September 9, 1998. This 33-day period is chargeable to the People. ( People v Kendzia, 64 NY2d 331 [1985]; People v Colon, 59 NY2d 921 [1983].) On September 9, 1998, the People supplied the necessary corroborating affidavits and the complaint was deemed converted to an information. The case was adjourned at the defendant's request for a conference to October 9, 1998. On that date, the case was again adjourned at the defendant's request for a final conference to October 30, 1998. Both of these adjournments are not chargeable to the People. (CPL 30.30 [4] [b]; People v Worley, 66 NY2d 523 [1985].) On October 30, 1998, the case was adjourned at the People's request to November 11, 1998, then again to December 4 and December 18, 1998 to permit them an opportunity to submit a superseding information. Forty-nine days are chargeable to the People. ( People v Smith, 82 NY2d 676 [1993].) The People, in their response papers, assert that they served and filed a superseding information with corroborating affidavits on the court on December 18, 1998. A readback of the court minutes shows that the People did not have the superseding information that day. In addition, the People did not announce ready for trial. Defense counsel was engaged in Brooklyn and was not present. The case was adjourned to December 22, 1998 for the submission of a superseding information. A readback of the minutes of December 22, 1998 reflects that the People filed and served a superseding information with two corroborating affidavits. A motion schedule was set at the request of the defendant and the case was adjourned to January 22, 1999. Thereafter, the adjournments have been for the purpose of resolving pretrial motions made by the defense. Thus, these adjournments are not chargeable to the People. (CPL 30.30 [4] [a].) To date, 82 days are chargeable to the People's 90-day trial readiness period. It is not necessary to decide to whom the adjournment of December 18 to December 22, 1998 is chargeable. Even assuming that the court charged the prosecution with this adjournment, the prosecution still would not have exceeded the applicable speedy trial limit. Consequently, the defendant's motion to dismiss pursuant to CPL 30.30 is denied.