Opinion
570830/02.
Decided October 20, 2005.
Defendant appeals from a judgment of the Criminal Court, New York County, rendered April 18, 2002 after a nonjury trial (Analisa Torres, J.) convicting him of aggravated harassment in the second degree (Penal Law § 240.30) and harassment in the second degree (Penal Law § 240.26), and imposing sentence.
Judgment of conviction rendered April 18, 2002 (Analisa Torres, J.) reversed, on the law, the facts and as a matter of discretion in the interest of justice, and the accusatory instrument is dismissed.
PRESENT: Davis, J.P., GANGEL-JACOB, Schoenfeld, JJ.
Defendant's conviction of aggravated harassment in the second degree (Penal Law § 240.30) was not based on legally sufficient evidence and was, in any event, against the weight of the evidence, which showed only that defendant uttered a single epithet during each of the two brief, daytime telephone calls made by him to the complainant's office. "In determining whether defendant violated the telephone harassment statute, our task is not to decide whether defendant acted inappropriately in calling the complainant . . . or to pass judgment on whether defendant's statements were indecorous or indiscreet. Rather, the core issue before us is whether defendant's isolated telephone call[s] [were] shown beyond a reasonable doubt to have been actuated by the requisite criminal intent — viz., to 'harass, annoy, threaten or alarm' — or to have been initiated in a 'manner likely to cause annoyance or alarm' (Penal Law § 240.30[1])" ( People v. Silverberg, 1 Misc 3d 62, 66), an inquiry which, on this record, must be answered in the negative. In the absence of any threats of violence or harm, "[r]ude and angry words are not enough to constitute aggravated harassment." ( People v. Livio, 187 Misc 2d 302, 307.)
An independent basis to vacate defendant's conviction of second-degree harassment (Penal Law § 240.26) is found in the People's failure to establish that the two telephone calls here involved — made a full four months apart with no intervening direct contact between the defendant and complainant — constituted "a course of conduct" or "repeated" acts within the meaning of the statute ( see People v. Wood, 59 NY2d 811; People v. Ali, NYLJ Sept. 27, 1991, at 21, col 1 [App Term, 1st Dept], lv denied 79 NY2d 824).
This constitutes the decision and order of the Court.