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People v Califano (2006 NY Slip Op 51504(U))
[*1]


Decided on August 1, 2006
Crim Ct, New York County

2006NY009062
Gerald Harris, J.
The defendant, Anthony Califano, moves to dismiss the sole remaining count of the complaint, charging him with aggravated harassment in the second degree (PL 240.30(1)(a))[FN1], as facially insufficient.
In substance, the complaint alleges that the defendant made seven telephone calls to the complainant's workplace and left recorded messages containing strong sexual language. The police aver that the calls were traced to the defendant's home telephone. A call by the police to that telephone number was answered by a person whose voice complainant, listening on another extension, identified as that of the defendant.
Defendant argues that the factual allegations of the complaint fail to establish that defendant
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was the caller and that the content and number of calls does not rise to the level of criminal conduct.
The standard for upholding an accusatory instrument is a lesser one than at trial, where the People must prove their case beyond a reasonable doubt. People v. Henderson, 92 NY2d 677 (1999); People v. Hernandez, 7 Misc 3d. 857 (Crim. Ct. NY Co. 2005).
So 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, they should be given a fair and not overly restrictive or technical reading. People v. Bauman & Sons Buses, Inc., 6 NY3d 404 (2006); People v. Casey, 95 Ny2d 354 (2000).
Communications may be proscribed without offending free speech protection, if they constitute an intolerable invasion of another's privacy. People v. Shack, 86 NY2d 529 (1995); People v. Araman, 4 Misc 3d. 128 (A), 2004 WL 1462578 (App. Term 1st Dept. 2004); People v. Miguez, 147 Misc 2d. 482, aff'd 153 Misc 2d. 442 (App. Term 1st. Dept. 1992); People v. Olivio, 6 Misc 3d. 1034 (A), WL 551856 (Crim. Ct. NY Co. 2005).
The hallmark of an intolerable invasion of privacy is usually the fact that multiple calls are directed to the complainant. See, Shack, supra; Miguez, supra; Araman, supra. Making multiple unwanted calls to another person does not implicate First Amendment protection because it is offensive conduct (ie. the making of the calls) that is criminalized and not the content of the calls. People v. Mangano, 100 NY2d 569 (2003); People v. Shack, supra.
The facts in People v. Araman, supra, bear a striking similarity to those alleged here. In that case, the Appellate Term, First Department upheld a conviction for aggravated harassment in the second degree based upon evidence which showed that defendant made a series of unwanted and abusive telephone calls to the complainant at his office and left numerous offensive messages on the complainant's voice mail. [*2]
In the instant case, certainly for pleading purposes, it may be reasonably inferred that the series of calls alleged to have been made by the defendant were unwanted, since the complainant copied the messages onto cassettes and brought them to the police. It may also reasonably be inferred that messages containing "strong sexual language" were offensive to the complainant and caused her annoyance and alarm. Finally, the factual allegations in the complaint adequately support the charge that it was the defendant who made the calls since they were traced to his home
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telephone and the complainant is alleged to have identified his voice as she listened on a second phone when the police called the defendant's number. The defendant has been given sufficient notice so that he may prepare his defense and it will be for a jury to determine whether the People have proven beyond a reasonable doubt that defendant made multiple unwanted calls which were intended to and did, in fact, harass, annoy or alarm the complainant. Accordingly, the motion to dismiss the complaint is denied.
Since the defendant denies the allegations of the complaint, his motion to suppress the tangible and intangible fruits of his arrest, including his statement, require that a Dunaway and Huntley hearing be held. Defendant's demand for discovery is granted to the extent of the voluntary disclosure form and bill of particulars furnished by the People. Defendant's Sandoval motion is referred to the trial court.
This opinion constitutes the decision and order of the court.
Dated: August 1, 2006___________________________________
New York, New York GERALD HARRIS
Judge of the Criminal Court
Footnotes
Footnote 1:The second count, charging harassment in the second degree (PL 240.26 (1)), was
dismissed on the motion of the People.
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