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Wicked Statement not legally sufficient to sustain New York Harassment in the Second Degree


Some New Yorkers use flagrant language that some may find offensive. One has the right to do that. The First Amendment protects speech but not all speech. Penal Law Statutes in New York criminalize certain speech, such as threats. While folks from Brooklyn may tell you to fuhgettaboutit other New Yorkers may take offense to certain language perceived as a threat. The charge that is usually lodged by the New York Police Department is a Harassment in the Second Degree charge. The language for this penal law offense, Harassment in the Second Degree, includes the (mens rea element) intent to harass, annoy or alarm another person. As I tell students, criminal intent is not a tangible thing one can readily identify or diagnose. Harassment in the Second Degree, however, can transform certain language into "threats" should the victim report this as a crime.

The defendant here is charged with Criminal Contempt in the Third Degree in violation of Penal Law § 215.50(3) and Harassment in the Second Degree in violation of Penal Law § 240.26(1). The issue is facial sufficiency, a challenge that can be raised for the first time on appeal:

Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. The failure to satisfy these requirements creates a jurisdictional defect to the criminal action, thus warranting dismissal (see People v Alejandro, 70 NY2d 133, 137 [1987]; People v Kalin, 12 NY3d 225, 229 [2009]).

As noted above, although unpleasant and sometimes uncalled for, People are allowed to say irritating, foul and vulgar language without recourse civilly or criminally. Harassment in the Second Degree:

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person" he "strikes, shoves, kicks or otherwise subjects such other person to physical contact or threatens to do the same" (PL § 240.26(1)). "The crux of section 240.26 (1) is the element of physical contact: actual, attempted or threatened" (People v Bartkow, 96 NY2d 770, 772 [2001]). In People v Raymond Moreno, 47 Misc 3d 138(A) (App Term 2d Dept 2015), a defendant cursed at a police officer inside the ferry terminal, stating "fuck you, the cop that got shot in the face deserved it, you guys are going to get yours." The court held these allegations were insufficient to show reasonable cause that the defendant engaged in harassment in the second degree as there was no indication that the defendant engaged in physical contact or threatened to do so (Moreno, at *4). The court further held that defendant's comments that "you guys are going to get yours" was a "hypothetical, non-serious outburst, not a clear or present threat of serious evil," particularly as it was directed not at an individual, but at police officers in general (id. at *5).

As the Court notes, although plainly unpleasant, the phrase "you wicked bitch, today for me tomorrow for you, watch and see what I'm going to do," cannot be said to contain a specific threat of physical harm to be inflicted upon the complainant. See, e.g., People v Shehabeldin, 39 Misc 3d 149(A), [App Term 2d Dept 2013] (statements by angry bus passenger that she "should shoot" the bus driver and that she "should come back and shoot him" insufficient for harassment charge)). Harassment in the Second Degree requires more to make such language criminal.

Accordingly, the Court grants the dismissal as to the harassment charges. Defense attorneys and New York Criminal Defendants charged with Harassment should note the obvious first amendment issues with the utterance of what the People of the State of New York may define as harmful speech. Absent physical conduct, there should be a great deal of scrutiny afforded to speech before it can be considered criminal. Should you be faced with a harassment charge or any other criminal charge, call the Law Offices of Cory H. Morris, 631-450-2515.

The case is People v. Murray, 2017 N.Y. Slip Op 27205 (Crim. Ct. 2017).


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