DECISION AND ORDER Defendant, George Suquilanda, moves inter alia for dismissal of the charges against him pursuant to Criminal Procedure Law (“CPL”) §§170.30 (1) (a), 170.35 (1) (a), 30.30 (5-a) alleging that the People filed a facially insufficient instrument, and in the alternative for suppression of all statements taken from defendant for which the prosecution served proper notice pursuant to CPL §710.30, or granting a hearing for findings of fact and conclusions of law (Huntley/Dunaway); precluding the prosecution from introducing at trial any evidence of defendant’s prior convictions or bad acts (Sandoval/Molineux/Ventimiglia) and granting additional relief as this court deems just and proper. The People oppose all motions. After careful consideration of defendant’s motion, the People’s responses, review of the accusatory instrument, court documents, and relevant legal authority, defendant’s motion is DENIED in part and GRANTED in part as set forth below. Procedural History Defendant was arrested on March 18, 2023, and charged with two counts of criminal contempt in the second degree (Penal Law ["PL"] §215.50 [3]), Class A misdemeanors, and two counts of harassment in the second degree (PL §240.26 [1]), violations. At his arraignment, the People were deemed unconverted. On June 2, 2023, the People filed and served the underlying order of protection via EDDS. The People subsequently filed a Certificate of Compliance (“CoC”), Statement of Readiness (“SOR”), and Supporting Deposition (“SD”) on June 8, 2023, via EDDS. On July 28, 2023, the People’s CoC was deemed valid, and a motion schedule was set. On August 15, 2023, defense counsel filed the instant motion. The People filed their opposition on August 31, 2023. The court adjourned the matter for decision and order to October 5, 2023. Facial Sufficiency of Accusatory Instruments An accusatory instrument must allege “facts of an evidentiary character supporting or tending to support the charges” (CPL §100.15 [3]) and demonstrate “reasonable cause to believe that the defendant committed the offense charged” (CPL §§100.40 [4] [b]; 70.10). Further, the facts must be supported by “non-hearsay allegations” which if true, establish “every element of the offense charged” (CPL §100.40 [1] [c]). Valid and sufficient accusatory instruments are a “nonwaivable jurisdictional prerequisite” (People v. Alejandro, 70 NY2d 133, 135 [1987]; see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Dumay, 23 NY3d 518 [2014]; People v. Casey, 95 NY2d 354, 360 [2000]; People v. Dumas, 68 NY2d 729, 731 [1986]). The non-hearsay factual allegations must be sufficient to establish a prima facie case, a standard which does not require the same level of proof needed at trial (People v. Suber, 19 NY3d 247, 252 [2012]). The information alone must be sufficient. If a defendant “must resort to the testimony or the record of the evidence to show the crime” for which he is being tried, then the complaint is insufficient (People v. Zambounis, 251 NY 94, 97 [1929]). The court must view the facts in the light most favorable to the People when determining the facial sufficiency of an accusatory instrument (People v. Contes, 60 NY2d 620, 621 [1983]). The court should approach factual allegations with a fair, not overly restrictive, or technical reading. The allegations must give defendant enough notice to prepare a defense and prevent defendant from being tried twice for the same offense (Casey at 360). “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Case, 42 NY2d 98, 99 [1977]). The Complaint In the instant matter, the factual allegations of the complaint deemed an information by the filing of the SD read, in pertinent part, as follows: Incident #1: Deponent [PO ROMEO POLIARD] is informed by ERIKA SUQUILANDA, that at the above time and place, informant observed defendant run directly at her while screaming. Deponent is further informed by informant that, informant ran into her room and locked the door, when defendant banged on informant’s bedroom door multiple times, while stating in sum and substance: BITCH, I DON’T WANT YOU HERE. I’M GOING TO FUCK YOU UP. I AM GOING TO KILL YOU, COME OUT HERE. YOU PUSSY, FUCKING BLACK BITCH, I HATE YOU. YOU DID ALL THIS SHIT, FUCKING CALLED THE COPS. Deponent further states that ERIKA SUQUILANDA is in possession of a valid order of protection issued by LISA A DALEY, Court Attorney Referee of the Bronx Family Court, Docket # O-04080-23BX, on March 17, 2023, and valid until June 09, 2023, and said order directs defendant in pertinent part to refrain from harassing, or threatening ERIKA SUQUILANDA. Deponent is informed by informant that, defendant had knowledge of aforementioned order of protection, in that said order was served on the defendant by Police Officer Garcia, Shield # 30381. Deponent is further informed by informant that, as a result of defendant’s aforementioned conduct, informant experienced annoyance, alarm, and fear for her physical safety. Incident # 2 Deponent is informed by ERIKA SUQUILANDA, that at the above time and place, informant observed defendant run directly at her while screaming. Deponent is further informed by informant that, informant ran into her room and locked the door, when defendant banged on informant’s bedroom door multiple times, while stating in sum and substance: COME OUT, YOU PUSSY. I AM GOING TO CALL MY GIRLFRIEND; I AM GOING TO GET YOU FUCKED UP. Deponent states that, ERIKA KA SUQUILANDA is in possession of a valid order of protection issued by LISA A DALEY, Court Attorney Referee of the Bronx Family Court, Docket # O-04080-23BX, on March 17, 2023, and valid until June 09, 2023, and said order directs defendant in pertinent part to refrain from harassing, or threatening ERIKA SUQUILANDA. Deponent is informed by informant that, defendant had knowledge of aforementioned order of protection, in that said order was served on the defendant by Police Officer Garcia, Shield # 30381. Deponent is further informed by informant that, as a result of defendant’s aforementioned conduct, informant experienced annoyance, alarm, and fear for her physical safety. The Parties’ Arguments Defendant argues that he did not violate the order of protection in question and the accusatory instrument must be dismissed as facially insufficient because the instrument does not make out the elements of harassment in the second degree, a requirement to meet the violation of the limited order of protection since said order allowed for contact between defendant and complainant. Defendant relies on People v. Dietze for the proposition that the charge amounts to criminalizing protected speech such as a crude outburst which does not amount to harassment (see Dietze, 75 NY2d 47 [1989]). Defendant further argues that stating, “I AM GOING TO KILL YOU,” among other utterances that can be characterized as profanities, are words that are “merely a crude outburst,” and are “not a true threat,” and thus not harassment, a requirement for there to be a charge of contempt of court in the second degree since the order of protection in question is limited and allowed for contact between defendant and complainant in their shared home (defense counsel’s affirmation at 7-8). In response, the People argue that the complaint provides “adequately detailed facts that support the charges and notice for defendant to prepare a defense,” and “alleges facts of an evidentiary character…tending to support the crimes of which defendant is charged” (People’s affirmation in opposition at 3). The People further argue that the speech in question, the subject of what is alleged to have been uttered that led to the violation of the order of protection issued by Lisa A. Daley, Family Court Referee, is not protected speech in that they were made in a private dwelling shared by the parties (defendant and complaining witness); and were threats made after defendant ran directly at the complainant while screaming, causing the complainant to flee and barricade herself behind the locked door; and that, defendant banged on the door numerous times and made the threat that he would kill complainant (People’s affirmation in opposition at 8). The People further argue that whether the speech in question is punishable is an issue for the trier of fact and not an issue at the pleading stage (People’s affirmation in opposition at 8). The Court’s Analysis I. The Words Uttered by Defendant Are Not Protected Speech In his motion, defendant did not challenge the facial sufficiency of the charge of criminal contempt in the second degree, but rather raises the issue of whether the speech that is credited with being the source of the charge of harassment in the second degree amounts to the act of harassment and therefore forms the basis for the violation of the order of protection. Defendant maintains that his statements were only an outburst and, therefore, are constitutionally protected and cannot be punished. As a threshold matter, the Court must determine whether the words spoken by defendant constitute protected speech under the state and federal constitutions. Specifically, whether the words were merely vulgar or a crude outburst and therefore not punishable as threats uttered against another person. The Court must also determine if the words uttered considered against the backdrop of defendant’s behavior are sufficient to make out all the elements of harassment in the second degree. The Court agrees with the reasoning in Dietze that “unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized (Dietze at 51). The Court also understands that the same holding stands for the proposition that the right to freedom of expression is not absolute and that speech that evokes violence can be proscribed and punished by the state. “Speech can be vulgar, even abusive, and provocative and yet still be protected under federal and state constitutions (see Dietze citing Lewis v. City of New Orleans, 415 US 130, 133–134 [1974]; Steinhilber v. Alphonse, 68 NY2d 283 [1986]). However, speech may be proscribed and punished when uttered to inflict injury or evoke violence or breach of peace (see Lewis at 133; Gooding v. Wilson, 405 US 518 [1972]; People v. Feiner, 300 NY 391 [1950]; People v. Tylkoff, 212 NY 197, 200 [1914]; People v. Harvey, 307 NY 588, 592 [1954]). The actions allegedly taken by defendant as described on the face of the complaint illustrate that the words uttered were more than a mere outburst and were instead voiced with the intent to cause harm and evoke immediate violence and a breach of the peace in the home defendant shared with the complainant. Specifically, defendant’s actions, together with the language he used, indicate more than an outburst. As described in the complaint, defendant’s behavior demonstrated a desire to make the complainant fear for her safety and therefore his actions directly resulted in causing her annoyance and alarm. Particularly, the act of “running directly at her [complainant] while screaming” which caused her to “r[u]n into her room and locked the door, when defendant banged on informant’s [complainant] door multiple times, while stating… “BITCH, I DON’T WANT YOU HERE. I AM GOING TO FUCK YOU UP. I AM GOING TO KILL YOU, COME OUT HERE. YOU PUSSY, FUCKING BLACK BITCH, I HATE YOU. YOU DID ALL THIS SHIT, FUCKING CALLED THE COPS” (see complaint at pages 1-2). Almost an hour later, defendant again ran toward complainant causing her to run into a room to lock a door while defendant “banged on informant’s bedroom door multiple times, while stating in sum and substance: COME OUT, YOU PUSSY. I AM GOING TO CALL MY GIRLFRIEND; I AM GOING TO GET YOU FUCKED UP” (see complaint at pages 1-2). Consequently, this Court holds that defendant’s pronouncements that he would “kill” complainant and get her “fucked up” did not constitute a mere outburst and, therefore, are not protected speech. II. The Accusatory Instrument Is Facially Sufficient A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (see PL §240.26 [1] [emphasis added]). A person is guilty of contempt in the second degree when he engages in any of the following conduct: “[i]ntentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law” (see PL §215.50 [3]). Further, intent means a conscious objective or purpose. Thus, a person acts with intent to harass, annoy, or alarm a person when his or her conscious objective or purpose is to do so (see CJ2d [NY] Penal Law §240.26 [1], https://www.nycourts.gov/judges/cji/2-PenalLaw/240/240- 26.pdf [last accessed September 28, 2023]). It is a fair inference that a reasonable person would interpret the words, “I AM GOING TO KILL YOU,” and “I AM GOING TO CALL MY GIRLFRIEND; I AM GOING TO GET YOU FUCKED UP” as a direct threat that can lead the same person to fear for their physical safety and to suffer annoyance and alarm. Defendant engaged in this behavior twice, and within an hour’s time between incidents while the complainant resorted to hiding in a locked room. This Court’s opinion is that mere insults or profanities such as name calling and curse words without expressing “I am going to kill you,” or “I am going to get you fucked up” would have amounted to a mere outburst. Here, however, the short interval between utterances of clear and distinct words which evinced a desire to perpetrate violence against another person coupled with the aggressive nature of defendant’s movements and actions illustrate his purposeful intent to threaten, frighten, annoy, and alarm the complainant. All the elements of harassment in the second degree are met in the factual allegations raised in the complaint when viewed in the light most favorable to the People. Further the factual allegations are confirmed with the supporting deposition and the underlying order of protection filed with the court. It follows then, that the complaint is also facially sufficient regarding the contempt charge. Said order of protection directed Respondent to refrain from harassing or threatening the complainant. Defendant did not challenge the facial sufficiency of the charges of contempt of court and relied solely on the argument that the People did not make out the harassment charge in their factual pleadings and that the words uttered by defendant were constitutionally protected. Accordingly, defendant’s motion seeking to dismiss the accusatory instrument is DENIED. III. Defendant’s Motion to Dismiss for Failure to Make a Valid Statement of Readiness Defendant contends that if the Court finds that the information is facially insufficient the People’s SoR is illusory. For the reasons set forth herein, the Court holds that the information is facially sufficient. The People’s speedy trial clock calculation commenced on March 20, 2023, the day after arraignment. On June 8, 2023, the People filed their CoC, SoR, and SD, thereby stopping the speedy trial clock. The time chargeable to the People is 81 days. Consequently, the prosecution declared their readiness within 90 calendar days, the time statutorily prescribed (CPL §30.30). Therefore, their statement of readiness is not illusory. Defendant’s motion to dismiss for failure to make a valid statement of readiness is DENIED. IV. Suppression of Statement Evidence Defendant’s motion seeking suppression of statement evidence is GRANTED to the extent that a Huntley/Dunaway hearing is ordered. V. Sandoval/Ventimiglia Motion Defendant’s Sandoval/Ventimiglia motion is REFFERED to the trial court for consideration. VI. Reservation of Rights Defendant’s motion to reserve the right to make further motion is GRANTED to the extent authorized by CPL §255.20 (3). VII. Discovery Obligations The People are directed to comply with continuing discovery obligations pursuant to CPL Article 245. The defendant is directed to certify discovery compliance within 30 days of the date of this decision and order pursuant to CPL §§245.20 (4) and 245.50 (2). This opinion constitutes the decision and order of the Court. Dated: October 5, 2023
