Opinion
2019-980 RI CR
07-30-2021
The People of the State of New York, Respondent, v. Anthony Lagano, Appellant.
Brill Legal Group, P.C. (Peter E. Brill of counsel), for appellant. Richmond County District Attorney (Morrie I. Kleinbart and Thomas B. Litsky of counsel), for respondent.
Unpublished Opinion
MOTION DECISION
Brill Legal Group, P.C. (Peter E. Brill of counsel), for appellant.
Richmond County District Attorney (Morrie I. Kleinbart and Thomas B. Litsky of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raja Rajeswari, J.), rendered April 12, 2019. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree, and imposed sentence.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
After a nonjury trial, defendant was convicted of harassment in the second degree (Penal Law § 240.26 [1]), and sentence was imposed.
Viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 N.Y.2d 620 [1983]), we find that the evidence was legally insufficient to establish defendant's guilt of harassment in the second degree beyond a reasonable doubt (see People v Dietze, 75 N.Y.2d 47, 53-54 [1989]; People v Todaro, 26 N.Y.2d 325 [1970]; People v Marom, 63 Misc.3d 145 [A], 2019 NY Slip Op 50675[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Ruggerio, 4 Misc.3d 133 [A], 2004 NY Slip Op 50747[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). While genuine threats of physical harm fall within the scope of the statute, an outburst, without more, does not constitute a violation (see People v Dietze, 75 N.Y.2d at 53-54; People v Todaro, 26 N.Y.2d at 330; see also Watts v United States, 394 U.S. 705, 708 [1969]). In the case at bar, defendant's speech did not present "a clear and present danger of some serious substantive evil" (People v Dietze, 75 N.Y.2d at 51) which might be forbidden or penalized.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.