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Appellate Term of the Supreme Court of New York, Second DepartmentDec 2, 2005
814 N.Y.S.2d 563 (N.Y. Misc. 2005)
814 N.Y.S.2d 5632005 N.Y. Slip Op. 52096

2004-1679 K CR.

Decided December 2, 2005.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Patricia E. Henry, J.), rendered November 8, 2004. The judgment convicted defendant, upon his plea of guilty, of aggravated harassment in the second degree.

Judgment of conviction unanimously affirmed.


Upon a review of the record, we find that insofar as the accusatory instrument charged defendant with aggravated harassment in the second degree (Penal Law § 240.30 [a]), it is facially sufficient and not jurisdictionally defective. The accusatory instrument states that defendant, with the "intent to cause annoyance or alarm," caused a "communication to be initiated . . . anonymously or otherwise, by telephone." The factual portion thereof states that from April to October 2004, defendant called the complainant's cell phone every day, approximately 10 times a day, and told the complainant that if she were a man he would kill her but it was not worth it, and that complainant told defendant, whose voice she recognized, to stop calling her. The complainant further stated therein that the aforementioned actions caused her "to fear physical injury and to become seriously harassed, alarmed and annoyed."

Despite the fact that the factual allegations of the accusatory instrument do not recite the statutory language verbatim, and do not specifically allege that defendant's acts were "in a manner likely to cause annoyance or alarm," they, nonetheless, provide defendant with notice sufficient to prepare a defense and are adequately detailed to prevent him from being tried twice for the same offense ( see People v. Casey, 95 NY2d 354, 360). Moreover, said factual allegations conform to the requirements of CPL 100.15, since they, along with the supporting deposition, provide reasonable cause to believe that the defendant committed aggravated harassment in the second degree and are comprised of non-hearsay allegations of fact that establish, if true, every element of the offense charged ( see CPL 100.40). Defendant's remaining contentions have no merit or are unpreserved for appellate review.