Orticelli Jo Aff001
Orticelli Jo Aff001
Plaintiff,
NOTICE OF MOTION
-against- D49-903583
NICHOLAS J. ORTICELLI,
Defendant.
PLEASE TAKE NOTICE, that pursuant to the Criminal Procedure Law § 255.20, the
December 6,2019, will move this Court, at the 1250 Union Road West Seneca, NY 14224, on
December 11,2019, at 5:00 p.m., for an order granting the following relief:
2. Such other and further relief as the Court may deem just and proper.
Plaintiff,
AFFIRMATION OF
JAMES OSTROWSKI
NICHOLAS J. ORTICELLI,
Defendant.
1. I am the attorney for the defendant and make this affirmation in support of
speedy trial.
2. On November 19, 2019, the court denied the above motions with the
exception of the retaliation motion about which the court ordered further
briefing.
"A".
misapprehended by the court in determining the prior motion, but shall not
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include any matters of fact not offered on the prior motion. A motion for
5. The Court has the inherent power to entertain a motion to reargue or renew. See,
6. There were several motions and grounds for dismissal pending before the Court as
follows:
v. Hearsay attachments
following elements
1. Intent to annoy
2. Course of conduct
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x. Lack of geographic jurisdiction
1. No statement of readiness
following elements
1. Intent to harass
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xi. Speech is protected under First Amendment
8. Speedy trial. The People argued that the violation information was timely filed
because of various periods of time motions were pending and which time is
excluded by the statute. In truth, given a proper calculation of time, the defendant
motions are irrelevant. The information was filed on or about March 14, 2019.
The defendant's motion to dismiss was not filed until Apri118, 2019, more than
thirty days later. In no way did the defendant impede the People from filing a
proper information within thirty days. Even if arguably he did so, the People
cannot state readiness for trial based on a defective information. People v. Colon,
9. Thus, the information should have been dismissed with prejudice, which also calls
for dismissing the misdemeanor charge arising out of the same set of facts.
10. Although the defendant alleged numerous defects against the violation charge, the
People responded to only one, course of conduct. However, the information itself
mentioned only one act and cannot be salvaged by reference to the attachments
for the several reasons noted above and in the prior motion papers.
11. With respect to the misdemeanor charge-which should have been dismissed as
part of our speedy trial motion-the People did not at all respond to defendant's
12. The Court directed the People to respond and they did so on December 3,2019.
13. However, their response is cursory, cites state law principles only in response to
our constitutional arguments, and fails to refute our prima facie case of retaliation.
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See, my affirmation of July 12, paragraphs 4-18 and my affirmation of August 21,
14. Indeed, the failure to respond in any meaningful way raises an inherence that the
District Attorney's office does not want to disclose the true facts herein for fear of
embarrassment or worse and calls for summary judgment, or, at the very least, an
15. A review of the time line raises a strong inference that the misdemeanor charge
was filed in retaliation not only against defendant's First Amendment rights but
his rights to seek a trial in this matter under the state and federal constitutions.
16. The defendant filed a very detailed motion to dismiss the violation on April 18,
2019.
17. The Complainant met with the Town Prosecutor on or about May 3rd.
18. A few days later, I received a call from the Town Prosecutor offering an ACD
20. On information and belief, on May 19th the complainant contacted a friend of the
defendant's and proposed to drop all charges if there was an agreement not to
sue-''NicklNancie agrees not to civilly litigate over this matter or anything that
led up to it."
21. When no such agreement was made, the complainant or his agents presumably
contacted the District Attorney's office at a level above the Bureau Chief (see my
affirmation of August 20th, par. 6) and a decision was made to increase the charge,
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apparently to coerce defendant into agreeing to an ACD to cut off the possibility
of civil charges.
22. Thus, we have laid out a strong case that the filing of the misdemeanor charge
was in retaliation against the Defendant's First, Fifth and Sixth Amendment rights
23. On the merits of the misdemeanor charge, the People responded only to the lack
of a true threat and ignored the other fourteen points. However, they did so by
paraphrasing the alleged threat and leaving out the term "figuratively." The only
case they cited does not apply here as it involved a direct threat that the defendant
was on his way to the complainant's house. People v. Crump, 77 AD3d 1335 (4th
Dept. 2010). There was thus a direct threat of immediate violence. Those
24. The People failed to respond to any of the other numerous grounds for dismissal
25. The Court's oral decision on the record reached the following conclusions:
b. Both informations were sufficient as they gave the defendant sufficient notice
c. The allegations made out a sufficient true threat at the pleading stage.
d. The First Amendment does not protect speech invoking "a serious expression
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27. People v. Casey, 95 NY2d 354 (2000), is not a harassment case and merely held
that the objections raised by the defendant had been waived by failing to raise
them in the trial court. Thus, the holding of Casey does not refute any of the
28. People v. Olivia, 6 Mise 3d 1034(A) (Crim. Ct. N. Y. Co. 2005) is a harassment
case but one which involved a telephone call directly to the complainant. Thus, it
29. In this regard, it is significant that not only is the complainant not a Facebook
communication within the meaning of the statute as well as the lack of intent.
30. Further, the content of the threat in Olivia differs considerably from the alleged
31. With respect to the issue of whether the alleged statement is protected speech, the
Court overlooked the use of the term "figuratively," which appears in the alleged
32. That term explicitly negates any violent intent and places the alleged statement in
the realm of blowing off steam, which is a prime purpose of the First
violence.
33. With respect to our speedy trial argument, the Court overlooked our points that
the prosecutor never announced readiness for trial on the violation charge and that
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the violation information was jurisdictionally defective as outlined in our initial
motion papers.
34. The Court also overlooked the remainder of the arguments raised by the defendant
as follows:
following elements
1. Intent to harass
WHEREFORE, the defendant respectfully requests that the Court dismiss the information
filed against him with prejudice, together with such further relief as the Court deems just and
proper.
8
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