Opinion
20865-04.
Decided February 3, 2005.
Ronald J. Passero, Esq., Attorney for Defendant.
Matthew J. Rich, Esq., Assistant District Attorney Thomas J. DiSalvo, J.
History of the Case
The defendant was charged with the violation of harassment in the second degree, P.L. 240.26(1). A complaint dated August 31, 2004, was signed by Frank P. Barbato, who is a neighbor of the defendant. Penal Law Section 240.26(1) states 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 the same."
The defendant was arraigned in the presence of her attorney on October 5, 2004.
Subsequent to the arraignment, a motion to dismiss the complaint, alleging that the complaint was insufficient on its face, in that it did not comply with CPL 100.15(3) and CPL. 100.40(1)(b), was filed by defense counsel. A Notice of Cross Motion and Responding Affirmation was filed by the people. The matter was set down for argument on the motions on December 15, 2004.
The court reserved decision on said motions.
Facts of the Case
The complaint herein alleges that on August 26, 2004 at approximately 5:00 P.M. in a driveway at 855 Buttermilk Circle in the Town of Webster, the defendant told Mr. Barbato that "his days are numbered" and the "she was going to get your complainant". The complainant went on to allege that the defendant stated that she "was going to [expletive deleted] your complainant up."
Issue Presented
Were threatening and crude statements, if made by the defendant, sufficient to support a conviction for harassment in the second degree, as defined by P.L. 240.26(1)?
Legal Analysis
CPL 100.15(3), referring to a complaint, states in pertinent part "The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." Since the complaint in question was verified by the complainant himself, the requirements set out by CPL 100.15(3) are in fact satisfied by the very fact that the allegation is a first person account of the violation in question.
CPL 100.40(1)(b) states that
"An information, or count thereof, is sufficient on its face when: The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information."
In the instant case, no supporting deposition was executed. However, the complaint herein alleges that the defendant made crude and threatening remarks to the complainant. In order to decide whether the allegations made in the complaint are sufficient, the court must view them in the light most favorable to the people. In other words, assuming the statements alleged to have been made by the defendant were proven to have been made, the court must then determine if those statements would in fact sustain a conviction to harassment in the second degree, pursuant to PL 240.26(1).
There is no allegation that any improper or attempted contact of any kind took place.
"The crux of section 240.26(1) is the element of physical contact: actual, attempted or threatened" People v. Bartkow, (2001) 96 NY2d 770, 772, 725 NYS2d 589. Therefore, the issue becomes whether or not the words of the defendant were in fact sufficiently threatening.
The Court of Appeals in People v. Dietze, (1989) 75 NY2d 47, 53; 550 NYS2d 59 reversed the conviction of someone convicted of harassment in the second degree, 240.25(1), who threatened to "`beat the crap out of [complainant] some day or night in the street'". This was based on the court's determination that the statement of the defendant was not something that
Harassment in the second degree was amended and renumbered from 240.25 to 240.26 in 1992. However the language of subsection 1 has remained the same.
". . . should reasonably been taken to be serious or was confirmed by other words or acts showing it was anything more that a crude outburst. While genuine threats of physical harm fall within the scope of the statute, such an outburst, without more, does not (See, People v. Todaro, 26 NY2d 325, 330; see also, Watts v. United States, 394 US 705, 708)." Dietz at 53.
An essential element of harassment in the second degree, pursuant to P.L. 240.26(1), which the people must prove is intent. In order to survive a motion to dismiss for insufficiency there must be prima facie proof that the statement or statements made by the defendant were conceived of beforehand. In People v. Straci, (1997) 174 Misc2d 926, 927, 667 NYS2d 613 the Village of Sleepy Hollow Village Justice stated as follows:
"Where the challenged conduct is clearly spontaneous in nature rather than thought out in advance, courts have found the element of intent to be lacking. As one previous court stated, `the defendant did not intend `to harass, annoy or alarm' the [complainant] . . . but rather merely demonstrated by an immature outburst his displeasure'" ( People v. Caine, 70 Misc2d 178, 179 [Suffolk Dist Ct 1972])."
There is nothing that has been presented to this court that indicates that the statements made by the defendant were anything more than spontaneous remarks made in anger. Even a veiled threat, in and of itself, would be insufficient to sustain a charge of Harassment in the second degree pursuant to P.L. 240.26(1). See People v. Todaro, (1970) 26 NY2d 325, 310 NYS2d 303 wherein Court of Appeals reversed a conviction for Harassment in the second degree, where the defendant had told a police officer "I'll get you for this".
The defendant was charged pursuant to harassment in the second degree, which was previously numbered as P.L. 245.25(1).
After reviewing the facts and circumstances presented by the complaint one must say that "The criminal law is not properly invoked every time an individual resents the way he or she has been treated by another." People v. Straci at 928. In this case the complaint fails to establish intent by showing that the statements allegedly made by the defendant were premeditated. Nor does the complaint provide a basis that would lead a reasonable person to concluded that the statements of the defendant, if made, should be taken seriously. As a result, the defendant's motion to dismiss the complaint as insufficient pursuant to CPL 100.15(3) and
It determining whether the requisite intent was present the ". . . courts will look to a `reasonable person' test on this issue." People. v. Straci at 927.
CPL 100.40(1)(b) is hereby granted.
This constitutes the decision and order of this court this 3rd day of February, 2005.