Opinion
No. 16090005.
01-03-2017
The PEOPLE of the State of New York, v. Nicolas A. GRAMMATICO, Defendant.
John M. Regan, Jr., Esq., for Defendant. Shani Mitchell, Esq., Assistant District Attorney.
John M. Regan, Jr., Esq., for Defendant.
Shani Mitchell, Esq., Assistant District Attorney.
THOMAS J. DiSALVO, J.
Facts of the Case.
The defendant was charged with aggravated harassment in the second degree in violation of Penal Law Section 240.30(1)(a) alleged to have occurred on August 29, 2016. An arrest warrant was then issued for the arrest of Nicolas A. Grammatico. The defendant was arraigned in an "off hours" arraignment on September 13, 2016. At the time of his arraignment he was accompanied by his attorney. The defendant was released on his own recognizance at that time. Subsequently defense counsel filed a motion with the court requesting the dismissal of the information, alleging that same was defective and being insufficient on its face pursuant to CPL §§ 100.15, 100.40, 170.30 and 170.35. The accusatory instruments consisted of a complaint prepared by Officer Alex Kirkpatrick and a two page supporting deposition sworn to by Robyn L. Grammatico, the alleged victim herein. It was alleged in the complaint in pertinent part that
"... the defendant made an alarming phone call to the victim, Robyn L. Grammatico while she was at her home address of 612 Wild Mallard Trail located in the Town of Webster, County of Monroe, State of New York. While on the phone with the victim the defendant stated ‘I am going to hurt you and make you pay for what you did to me’ ".
The supporting deposition of Robyn Grammatico alleged that the defendant is her step son. She further stated that the defendant called her disparaging names. She also stated that despite her requests not to do so, the defendant placed numerous phone calls to her which were harassing and threatening in nature. However, the main thrust of her supporting deposition is as follows: "Nicholas [sic] blamed me for the incident on 5/8/16 [his mental health arrest] and told me ‘I am going to hurt you and make you pay for what you did to me.’ " Ms. Grammatico went on to say that the defendant has "access to various types of weapons". Finally, she stated that "I would like to mention that on 8/29/16 Nicholas [sic] also told me that he was going after my brother Ronald Butera".
Issue Presented
Do the words "I am going to hurt you and make you pay for what you did to me" amount to "a threat to cause physical harm"?
Legal Analysis
The current wording of Penal Law Section 240.30 relative to aggravated harassment in the second degree was put into affect on July 23, 2014. In particular subsection (1)(a) states as follows:
"A person is guilty of aggravated harassment in the second degree when:
1. With intent to harass another person, the actor ...:
(a) communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person's same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family or household."
There is no doubt that the defendant's statement that "I am going to hurt you and make you pay for what you did to me" is a threat.That term has been defined as "an expression to hurt, destroy, punish, etc."(Webster's New World Dictionary and Thesaurus, [2nd Edition 2002] ) However, not all threats can form the basis of a violation of Penal Law § 240.30(1)(a). In fact a distinction has been drawn between a threat that is unclear, ambiguous and non-immediate and a "true threat". (See People v. Orr, 47 Misc.3d 1213[A], 2015 N.Y. Slip Op. 50568[U],*2 [2015] ). In other words there is a distinction between a generalized or vague threat and a true threat of physical harm. The court in Orr held that "Where the language at issue ‘is incapable of constituting a true threat, as a matter of law, the complaint should be dismissed’ "
Id.
Nevertheless, in reviewing Informations for sufficiency the court must always weigh the language of the applicable sufficiency statutes, i.e. CPL §§ 100.15, 100.40, 170.30 and 170.35 against the case law that discourages the dismissal of informations on sufficiency grounds.
"The prime facie requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y .S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information need only contain allegations of fact that ‘give an accused sufficient notice to prepare a defense and that are adequately detailed to prevent a defendant from being tried twice for the same offense’ People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88,91, 740 N.E.2d 233 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a ‘fair and not overly restrictive or technical reading.’ id., assume that those allegations are true, and consider all reasonable inferences that maybe drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.2d 715, 721–722, 967 N.E.2d 1160, 1166–67 (2012. See also Casey, 95 N.Y.2d at 360, 717 N.Y .S.2d at 91, 740 N.E.2d at 236. (People v. Williams, 46 Misc.3d 1208[A] 2915 N.Y. Slip Op. 50017, *2 [U] [2015] )
Judge Steven M. Statsinger, of the Criminal Court of New York has extensively discussed the issue of what constitutes a threat as opposed to a true threat in two written decisions, i.e. People v. Williams, 46 N.Y.S.3d 1208[A], 2015 N.Y. Slip Op. 5001 [U] [2015] decided on January 8, 2015 wherein he denied defense counsel's motion to dismiss a criminal contempt 2nd degree charge, because he found the statement "I'm going to court to have you and your mother removed from the house. You're going to regret this and it's going to hurt real bad, I'll promise you that" to be a "true threat" in the context of a no-offensive behavior order of protection. Id. at *3. Later that year the judge issued another written decision in People v. Orr, 47 Misc.3d 1213[A], 2015 N.Y. Slip Op. 50568 [U] [2015], wherein the court dismissed the charge of aggravated harassment 2nd degree, P.L. 240.30(1)(a). In that case the defendant telephoned his ex-girlfriend and said "I can have you handled". Then in a text he said "Go kill yourself bitch and "You're not worth the air to take the jump bitch". Id. at *1. The court concluded that the defendant's statements were not true threats. Id. at *5.
The offense charged herein is not based on a specific physical action, such as an assault or a larceny. Instead, the offense is based on words allegedly used by the defendant that were directed to another person. Penal Law Section 100.40(1)(c) requires that "Non-hearsay allegations of the factual part of the information and/or any supporting deposition establish if true, every element of the offense charged and the defendant's commission thereof." The key element of subdivision (1)(a) of the aggravated harassment in the second degree statute is that of "a threat to cause physical harm". Thus not all threats constitute an element of the charge. For example a threat to make use of the court system against another individual is not prohibited, i.e. threat to sue for custody of a child. In fact, "More generally, to constitute a ‘true threat’ a remark must ... contain a threat that is ‘clear, unambiguous, and immediate.’ "
(CJI2d[NY] Penal Law § 240.30[1][a] )
( People v. Orr, 15 N.Y.S.3d 713, 2015 N.Y. Slip Op. 50568(U) *2 [2015] ).
Nevertheless, a court need not evaluate a particular statement completely disconnected from other alleged statements set out in the accusatory instruments. To do otherwise is to ignore how the totality of the statements in question would be interpreted by a reasonable person to whom the statements were directed. "The defendant must also ‘know[ ] or reasonably should know that such communication will cause [the other] person to reasonably fear harm.’ " The supporting deposition of Ms. Grammatico indicated that the defendant allegedly also called her a "bitch" and "a gold digging bitch". However, those statements are not threats.Even taken as a whole, one is still left to wonder what were the intentions of the defendant.The word hurt in the current context can have a number of meanings, other than an intent to injure to person or property. It can be that he intends to hurt the relationship between Ms. Grammatico and the defendant's father. It can be that the defendant intends to take legal action against her. The same analysis must apply to the alleged statement that the defendant "was going after" Ms. Grammatico's brother. The court's analysis of the defendant's statements cannot be reduced to guessing about the meaning of a defendant's words or the defendant's intentions. If either of those options become the case then the accusatory instruments lack the essential element of P.L. 240.30(1)(a), that is "of a threat to cause physical harm".
Id. at *3.
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This by no means discounts the actions of the defendant, if true, as being alarming and/or annoying. Interestingly, in People v. Orr, Judge Statsinger having granted the defendant's motion to dismiss the charge of aggravated harassment in the second degree, PL § 240.30(1)(a), denied the defendant's motion to dismiss the charge of harassment in the second degree, pursuant to PL § 240.26(3) involving the same alleged statements of that defendant. Therefore, even if statements do not amount to a threat they can constitute the violation of harassment in the second degree.
Conclusion
The statements alleged to have been made by the defendant as set out in the information herein do not constitute a true threat as that term has been interpreted by the courts of this state. In that regard the statements allegedly made by the defendant herein were unclear and ambiguous. Nor was there any immediacy suggested by the language of the defendant. Thus the motion of defense counsel requesting the dismissal of the information herein is hereby granted pursuant to CP.L. §§ 100.15(3), 100.40(1)(c), 170.30(1)(a) and 170.35(1)(a). This constitutes the decision and order of the court.