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.
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.
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 NY2d 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 NY2d 47, 53-54 [1989] ; People v Todaro , 26 NY2d 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 NY2d at 53-54 ; People v Todaro , 26 NY2d at 330 ; see also Watts v United States , 394 US 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 NY2d 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.