Court Addresses Insufficiency of Accusatory Instrument in New York Aggravated Harassment Case

An appellate court recently issued an opinion affirming aggravated assault charges against a New York criminal defendant. Using one accusatory instrument for two separate incidents, prosecutors charged the defendant with harassment in the second degree, and two counts of aggravated harassment in the second degree. The complainant alleged that the defendant threatened her daughter in one incident, and the second incident involved multiple phone calls from the defendant. Among other issues, the complainant contended that she recognized the defendant’s voice, and the calls made her fear physical injury to her and her daughter. The defendant pleaded guilty to an underlying charge of disorderly conduct, which was added to the pleading. However, on appeal, the defendant challenges the accusatory instrument’s facial sufficiency.

An accusatory instrument is a document that alleges a criminal defendant’s violation of a petty or criminal offense. Under New York case law, a valid and sufficient accusatory instrument is a non-waivable jurisdictional prerequisite to criminal prosecution. Although the law does not require the instrument to be the most precise, it must provide the accused with sufficient notice and details to prepare an adequate defense. A defendant’s guilty plea will not correct a jurisdictional defect created by a facially insufficient accusatory instrument. In this case, all of the counts in the accusatory instrument were equal to or higher than the uncharged violation the defendant pleaded guilty to. For a successful appeal, all of the defendant’s accusatory instrument charges would have to be facially insufficient. Moreover, because the defendant waived the right to be prosecuted by information, the accusatory instrument must be reviewed under misdemeanor complaint standards.

A person is guilty of second-degree harassment if they intend to harass another person followed by specified conduct, and the actor knows that the conduct will cause the other person to fear harm. Most of these charges stem from a threat and actions such as phone calls, texts, emails, and physical threats, or a combination of these behaviors. Here, the complainant’s accusatory statement was facially valid because :

  1. The complaint alleged that she recognized the caller’s voice as the defendant.
  2. The accusatory instrument provided a reasonable cause to believe that these statements contained no other purpose than threatening or intimidating the complainant.
  3. For pleading purposes, the complainant established reasonable cause to believe that the accused used the phone calls to harass the complainant.

Thus, because second degree aggravated harassment is a class A misdemeanor, and the defendant pleaded guilty to disorderly conduct, the court did not need to address the sufficiency of the remaining counts in the accusatory instrument.

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