People v Montague (Thomas)

Jun 11, 2013
2011-1271 D CR
Versions:2013 NY Slip Op 50982(U)

Decided on June 11, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ

The People of the State of New York, Respondent, — against Thomas M. Montague, Appellant.

Appeal from a judgment of the City Court of Beacon, Dutchess County (Timothy G. Pagones, J.), rendered March 17, 2011. The judgment convicted defendant, upon his plea of guilty, of harassment in the first degree.

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument dismissed.

The People charged the 50-year-old defendant with harassment in the first degree (Penal Law § 240.25). The information and supporting deposition state, in pertinent part, that the alleged victim, a 19-year-old female, received a message from defendant on Facebook in which defendant insisted that she knew him and had seen him in the Town of Beacon. After the victim responded that she did not know defendant, she “deleted him as a [Facebook] friend.” The information and the supporting deposition, taken together, further provide that, over the next two days, defendant, whom the victim recognized from his Facebook photo, repeatedly drove by her in his car, while “staring” at her as she walked home from school. This conduct, according to the supporting deposition, made her “uncomfortable” and “scare[d]” and, according to the information, “in reasonable fear of physical injury.” Defendant pleaded guilty to the offense and was sentenced to a conditional discharge. On appeal, defendant challenges the accusatory instrument‘s facial sufficiency and the adequacy of the representation of his trial counsel who failed to move to dismiss the information on that ground.

Defendant‘s jurisdictional challenge to the accusatory instrument‘s facial sufficiency survives defendant‘s guilty plea (see People v Hansen, 95 NY2d 227, 230 [2000]; People v O‘Connor, 36 Misc 3d 159[A], 2012 NY Slip Op 51813[U] [App Term, 9th & 10th Jud Dists 2012]), and we find that the information failed to allege sufficient facts which, if true, established reasonable cause to believe that, by his course of conduct, defendant had placed the victim “in reasonable fear of physical injury” (Penal Law § 240.25). While disturbing to the victim and undoubtedly inducing discomfort and fear, no facts were alleged upon which to base an inference that defendant‘s conduct was ever threatening or abusive in tone or content, and there was no prior encounter between defendant and the victim that would cause defendant‘s conduct to be permeated with such hostile overtones that the victim‘s alleged “fear of physical injury” (Penal Law § 240.25) was “objectively reasonable” (Matter of Tyrone T. v Katherine M., 78 AD3d 545, 545 [2010]; see People v Demisse, 24 AD3d 118, 119 [2005]; People v Feliciano, 2002 NY Slip Op 50077[U] [App Term, 1st Dept 2002]; William C. Donnino, Practice Commentary, McKinney‘s Cons Laws of NY, Penal Law § 240.25).

In light of the foregoing, we need not address defendant‘s remaining contention.

Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.

Decision Date: June 11, 2013