Opinion
2008SK84709.
Decided December 18, 2008.
Matthew MacIntyre — A.D.A. — for the People.
Ken Womble — B.D.S. — for the Defendant.
Procedural History
Defendant was served a summons dated May 7, 2008, and was charged with harassment in the second degree (PL § 240.26 and [3]), a violation. Police Officer Ryan issued the summons. He affirmed therein, pursuant to PL § 210.45, under penalty of perjury, that he "did observe the deft threatening to kill Franklin Bent . . . Franklin Bent states he wants charges pressed."
On July 16, the defendant was arraigned and pled not guilty.
A trial was conducted before this court on September 26, 2008. The People presented a single witness, the complainant, Franklin Bent. The defendant, Brian Barrow, testified on his own behalf.
Facts
The complainant, Mr. Franklin Bent, resides at 2111 Albermarle Road, in Brooklyn. He has lived there for 32 years. The defendant resides in the apartment below Mr. Bent, apartments 1E and 2E respectively. On May 7, 2008, Mr. Bent was not working. He left his apartment at approximately 11:00 A.M. As he came down the stairs of the building, he observed the defendant, Brian Barrow, exiting his apartment. Mr. Barrow called out to Mr. Bent, and while in the lobby of the building, the defendant threatened the complainant stating that he would kill him, and otherwise hurt him, and that he was sick and tired of what Mr. Bent was doing to him. (Trial Transcript, pg. 14 lines 6 — 12). As Mr. Bent proceeded to leave the building, the defendant followed him and continued stating "I'm going to hurt you", and "I'm going to kill you one of these days" to the complainant. (Trial Transcript, pg. 22, lines 1-2).
The People introduced photographs taken by a camera in the lobby of 2111 Albermarle Road. They are a series of 11 photographs, the first one timed at 11:11:57, which shows the complainant coming down the stairs. In the third and fourth photographs, timed at 11:12:02, and 11:12:03, the defendant is shown to be pointing at the complainant's back. In the next few photographs, the defendant is shown to be following the complainant through the lobby and out toward the door. In the last two photographs, timed at 11:14:22, and 11:14:23, the defendant is shown to be following the complainant on the outside path leading away from the building.
Once outside the building, the complainant saw a police officer, and informed him that the defendant was harassing him. The police officer spoke to the defendant and did issue the defendant the summons at that time.
The defendant, Brian Barrow, also testified at the trial. Mr. Barrow has lived in the apartment below Mr. Bent since 1995. He complained of "constant noise" emanating from the complainant's apartment above him. "Constant boots on the floor 3:00 in the morning and the constantly badgering me everywhere I go." (Trial Transcript, pg. 42, lines 10-13).
The defendant testified that at the place and time of the occurrence, the complainant was standing in the doorway, blocking the defendant's exit, and that the complainant would not move even after the defendant asked him to move out of the way. He testified further that the complainant told the defendant that he was going to kill him. (Trial Transcript, pg. 44 line 10).The defendant's version of the events is not borne out by what is shown in the photographs, or by the timing of the photographs. Further, on cross-examination, the defendant retracted his earlier statement and denied that the complainant threatened to kill him. (Trial Transcript, pg. 53 line 3).
Penal Law § 240.26 (1)PL § 240.26 (1) reads as follows:
A person is guilty of harassment in the second degree when, with intent to harass, annoy, or alarm another person:
1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do same;
In People v Bartkow, 96 NY2d 770 (2001), where the defendant tried to reduce the charge of menacing to harassment, the Court distinguished that "[t]he crux of section 240.26 (1) is the element of physical contact: actual, attempted or threatened" at 772.
In a facial insufficiency motion seeking inter alia, to dismiss PL § 240.26 (1), where the defendant told the complainant that he was "gonna f k [informant] up", and that [informant] was a "bitch" and that he was "gonna get [informant]", this court joined other courts in finding that "verbal threats alone may not be sufficient to meet this burden". People v Taylor, 19 Misc 3d 1114, at *1 (Crim.Ct., Kings County 2008, Nadelson, J.) ; People v Dietze, 75 NY2d 47 (1989).
In the leading case on this issue , People v Dietze, 75 NY2d 47 (1989), the Court of Appeals held that "unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" at 51. In that case, the defendant stated that she would "beat the crap out of [complainant] some day or night in the street". The Court found that there was nothing in the record to demonstrate that the statement "was anything more than a crude outburst." at 53-54.
Some physical action is required to sustain a harassment charge. Such requisite contact can be relatively minor, such as jabbing a finger in the complainant's chest ( People v Hare, 66 Misc 2d 207 [App. Term, 1st Dept., 1971]); chest butting the arresting officer ( People v Lynn, 33 AD3d 673 [2nd Dept., 2006]); blocking the complainant's car with his own car while stating "I'll kill you" ( People v Dorns, 88 Misc 2d 1064 [Justice Ct, Westchester County 1976]); shaking his hand at the complainant while stating "I'll get you for this" ( People v Price, 178 Misc 2d 778 [Crim. Ct., New York County 1998]).
This court finds that the People did not make out the elements of PL § 240.26 (1).
Penal Law § 240.26 (3)PL § 240.26 (3) reads as follows:
A person is guilty of harassment in the second degree when, with intent to harass, annoy, or alarm another person:
(3) He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
The Court of Appeals has repeatedly held that to establish that the defendant violated PL § 240.26 (3) there must be evidence that the defendant's conduct was not an isolated incident. People v Wood, 59 NY2d 811 (1983); People v Valerio, 60 NY2d 669 (1983); See also, People v Hogan, 172 Misc 2d 279 (Crim Ct, Kings County, 1997) order aff'd. 181 Misc 2d 748 (1998).The term "a course of conduct" has been defined as a "pattern of conduct composed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose." People v Payton, 161 Misc 2d 170 (Crim.Ct., Kings County 1994. Bruno, J).
In People v Tralli, 88 Misc 2d 117 (App. Term 9th and 10th Jud. Districts 1976), the court found that where the defendant's actions are calculated and deliberate in relation to the victim, a one-time act may be sufficient to establish a course of conduct under the statute. In contrast, in the case at bar, defendant's actions involved a spontaneous, emotional, and verbal outburst. Where the complainant alleged abusive and degrading statements to her over a period of time, which behavior caused her to leave the house to get away from the defendant, the court found that the elements of 240.26 (3) were sufficiently made out. People v Masullo, 16 Misc 3d 1105 (Justice Court, Westchester County 2007). However, a single outburst, no matter how abusive, is not criminal under the harassment statute. People v Hogan, 172 Misc 2d 279 (Crim Ct, Kings County 1997).
Conclusion
For the reasons stated above, all charges against this defendant are dismissed. This court finds that the defendant is not guilty of the charges.
This opinion constitutes the decision and order of this Court.