178 Misc. 2d 778 | N.Y. City Crim. Ct. | 1998
OPINION OF THE COURT
Defendant John Price is charged with three counts of aggravated harassment in the second degree, in violation of Penal Law § 240.30 (1), and one count of harassment in the second degree, in violation of Penal Law § 240.26 (1). He now moves to dismiss the accusatory instrument for facial insufficiency.
The accusatory instrument charges that the defendant sent a letter via Federal Express to Frances Berman, his attorney,
The defendant contends that the accusatory instrument is not facially sufficient because “the speech activity in which the
The requirements for aggravated harassment and harassment differ, thus they will be discussed in turn.
AGGRAVATED HARASSMENT
Penal Law § 240.30 (1) provides that “A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she * * * [c] ommunicates, or causes a communication to be initiated by mechanical or electronic means or * * * any other form of written communication, in a manner likely to cause annoyance or alarm”.
In People v Dietze (75 NY2d 47 [1989], supra), the defendant had been convicted of harassment under Penal Law former § 240.25 (2) for calling the complainant a "bitch" and her son a "dog'" (at 50), knowing that they were mentally retarded.
The defendant’s reliance on People v Amalfi (141 Misc 2d 940 [Rochester City Ct 1988], supra) is also misplaced. In Amalfi the information was deemed facially insufficient where the defendant, the girlfriend of the complainant’s ex-husband, made threats “ ‘to get a gun and kill’ ” (at 941) the complainant in a telephone conversation initiated by the complainant.
Accordingly, because the content of the two alleged communications evinces an intention to harass, annoy, threaten or alarm the complainant, two counts of aggravated harassment
HARASSMENT
Penal Law § 240.26 (1) states that, “A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person * * * [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same”. In People v Todaro (26 NY2d 325 [1970], supra), cited by the defense, the defendant had been convicted of harassment under Penal Law former § 240.25 (1), the predecessor of Penal Law § 240.26 (l).
In Dietze (75 NY2d 47 [1989], supra), discussed above, in addition to her conviction for Penal Law former § 240.25 (2), the defendant also was convicted of violating Penal Law former § 240.25 (1) for having stated to the complainant that she “would ‘beat the crap out of [the complainant] some day or night on the street’ ”. The Court reversed the conviction because nothing in the record demonstrated that the defendant’s threat “was either serious, should reasonably have been taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst.” (Supra, at 53-54.) The Court added, “While genuine threats of physical harm fall within the scope of the statute, such an outburst, without more, does not”. (Supra, at 54.)
The instant accusatory instrument states that the defendant “was not permitted to leave” the court “at the same time” as the complainant. This statement may shed no light on the defendant’s actions, indicating only that the court officers took reasonable precautions. Or perhaps, at trial, additional facts may be brought to light explaining why such precautions were taken. These are issues to be determined by the finder(s) of fact.
Accordingly, the defendant’s motion to dismiss the fourth count of the information, charging a violation of Penal Law § 240.26 (1), is denied.
. Although not explicitly stated, it appears Ms. Berman represented the defendant in Housing Court.
. June 18, 1998 was a Thursday, apparently the Thursday the defendant had referred to in his telephone message. This incident appears to have occurred after a Housing Court appearance.
. The accusatory instrument adds that “the defendant was not permitted to leave [111 Centre Street] at the same time” as Ms. Berman.
. The People do not address any of the defendant’s arguments in their “affirmation in response to the defendant’s omnibus motion.” They merely state that the information does meet the requirements for facial sufficiency.
. The defendant made an additional statement, that she “would ‘beat the crap out of [the complainant] some day or night on the street’ ” (supra, at 50). For that statement she had been convicted of violating Penal Law former § 240.25 (1). See discussion below.
. Penal Law former § 240.25 (2) read, “A person is guilty of harassment when, with intent to harass, annoy or alarm another person * * * [i]n a public place, he uses abusive or obscene language, or makes an obscene gesture”.
. The defendant also stated, according to the information, that she “ ‘didn’t have to bother coming up there [to Rochester]’; she would ‘just make a phone call and have it done’; that she ‘had connections’ ” (supra, at 941).
. The two statutes are identical, except that section 240.26 contains gender neutral language.