STATE OF NEW YORK: JUSTICE COURT

TOWN OF WEST SENECA

THE PEOPLE OF THE STATE OF NEW YORK,

Plaintiff,

NOTICE OF MOTION

-against- D49-903583

NICHOLAS J. ORTICELLI,

Defendant.

PLEASE TAKE NOTICE, that pursuant to the Criminal Procedure Law § 255.20, the

defendant NICHOLAS J. ORTICELLI, upon the affirmation of James Ostrowski, dated,

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:

1. Reargument and renewal of the defendant's motions to dismiss the

informations as defective, violative of the state and federal constitutions;

retaliatory and as violative of the defendant's right to a speedy trial.

2. Such other and further relief as the Court may deem just and proper.

Dated: Buffalo, New York

December 6, 2019 AM S OSTROWSKI
Att ey for Defendant
CHOLAS J. ORTICELLI
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
[email protected]
To:

Megan E. Mahoney, Esq.

Erie County District Attorney's Office
25 Delaware Ave.
Buffalo, New York 14202
STATE OF NEW YORK: ERIE COUNTY
WEST SENECA TOWN COURT

THE PEOPLE OF THE STATE OF NEW YORK,

Plaintiff,
AFFIRMATION OF
JAMES OSTROWSKI

-against- Case No. D49-19-903583

NICHOLAS J. ORTICELLI,

Defendant.

JAMES OSTROWSKI, an attorney at law admitted to practice at this State, affirms as

follows under penalties of perjury:

1. I am the attorney for the defendant and make this affirmation in support of

his motion for reargument and renewal of the defendant's motions to

dismiss the informations as defective, violative of the state and federal

constitutions; retaliatory and as violative of the defendant's right to a

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.

3. A copy of the transcript of the court's decision is attached hereto exhibit

"A".

4. Reargument "shall be based upon matters of fact or law allegedly overlooked or

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

reargument, addressed to the discretion of the court, is designed to afford a party

an opportunity to establish that the court overlooked or misapprehended the

relevant facts, or misapplied any controlling principle oflaw." People v

Garraway, 2015 NY Slip Op 50865(U) (Criminal Court, Bronx County 2015).

5. The Court has the inherent power to entertain a motion to reargue or renew. See,

People v. DeFreitas, 2015 NY Slip Op 25135 (Crim. Ct. N. Y. Co. 2015).

6. There were several motions and grounds for dismissal pending before the Court as

follows:

a. Defective violation information (April 18, 2019)

1. Not on personal knowledge

11. Not a course of conduct

iii. No time or place of offense stated

IV. Unauthenticated attachments

v. Hearsay attachments

Vi. Misquoted alleged threat

Vll. Statement not violative of statute

V111. Statement for a legitimate purpose

IX. Failure to allege evidentiary facts or reasonable cause for the

following elements

1. Intent to annoy

2. Course of conduct

3. Lack of legitimate purpose

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 x. Lack of geographic jurisdiction

Xl. Statute is unconstitutionally overbroad

XII. Speech is protected under First Amendment

xiii. Due process vagueness

b. Speedy trial motion (July 12,2019)

1. No statement of readiness

11. Jurisdictionally defective information

c. First Amendment retaliation (July 12, 2019)

d. Defective misdemeanor information (August 21,2019).

1. Not on personal knowledge

11. No time or place of offense stated

111. Unauthenticated attachments

IV. Hearsay attachments

v. Misquoted alleged threat

VI. Statement not violative of statute

Vll. Statement for legitimate purpose

V111. Failure to allege evidentiary facts or reasonable cause for the

following elements

1. Intent to harass

2. Lack of true threat of physical harm

3. Lack of legitimate purpose

IX. Lack of geographic jurisdiction

x. Lack of communication to complainant

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 xi. Speech is protected under First Amendment

7. The People responded by affidavit dated September 30, 2019.

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,

59 NY2d 921 (1983).

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

claim of retaliatory prosecution.

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,

2019, paragraphs 5-9.

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

evidentiary hearing on the matter.

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.

See, U. S. Constitution, 5th and 6th Amendments.

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

(which would negate any possible lawsuit).

19. This offer was promptly rejected by my client.

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

and is thus unlawful.

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

elements are lacking here.

24. The People failed to respond to any of the other numerous grounds for dismissal

so a summary dismissal was appropriate here as well.

25. The Court's oral decision on the record reached the following conclusions:

a. Denied our speedy trial claim because I consented to an adjournment.

b. Both informations were sufficient as they gave the defendant sufficient notice

to prepare for trial.

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

of an intent to commit" violence. [7:7-20]

26. The Court cited two cases.

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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

objections raised in our motion papers.

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

does not justify a charge involving an alleged Facebook post.

29. In this regard, it is significant that not only is the complainant not a Facebook

friend of the defendant's as alleged previously, but, on information and belief, is

actually blocked from the defendant's Facebook page, which considerably

strengthens the defendant's previous arguments related to the lack of a

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

threat here as it fails to contain a self-negating adverb such as "figuratively."

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

Facebook attachment but not the information itself.

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

Amendment: we want people to blow off steam as an alternative to actual

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:

a. Defective misdemeanor information (August 21,2019).

1. Not on personal knowledge

11. No time or place of offense stated

111. Unauthenticated attachments

IV. Hearsay attachments

v. Misquoted alleged threat

VI. Statement not violative of statute

V11. Statement for legitimate purpose

V111. Failure to allege evidentiary facts or reasonable cause for the

following elements

1. Intent to harass

2. Lack oflegitimate purpose

IX. Lack of geographic jurisdiction

x. Lack of communication to complainant.

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.

Dated: Buffalo, New York

December 6, 2019 JAMES OSTROWSKI
Attorney for Defendant
63 Newport Ave.

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 Buffalo. New York 14216
(716) 435-8918
[email protected]