"Don't let me use my boxing on you" was not a true threat, harassment dismissed


[Defendant Benjamin Tackie ("Defendant") stands charged with aggravated harassment in the second degree, Penal Law §240.30(1)(a), and harassment in the second degree, id. §240.26(1). He moves to dismiss both charges for facial insufficiency, pursuant to C.P.L. §170.30(1)(a), 170.35(1)(a), and 100.40(1), and for other alternative relief.]

Defendant stated to the complainant (the one who got him arrested) "Don't let me use my boxing on you" and the Court finds that this does not constitute a true threat, incitement, obsenity, fraud, child pornography, defamation or statements integral to criminal conduct. Simply put, the Court found that this statement alone does not rise to the level of a true or genuine threat.

Rule [facial insufficiency]: To be facially sufficient, the factual allegations of an accusatory instrument must provide reasonable cause to believe that the defendant committed the charges asserted therein. C.P.L. §100.40(1)(b). The accusatory instrument must include non-hearsay allegations of fact that, if true, establish "every element of the offense charged and the defendant's commission thereof." Id. §100.40(1)(c). Generally, a deficiency as to the factual allegations supporting the elements of the crime entitles a defendant to dismissal on the ground that the information is defective. Id. §§170.30(1)(a); 170.35(1)(a). But "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000).

Harassment: [The Court of Appeals recently reiterated that "prohibitions of pure speech must be limited to communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct." People v. Marquan M., 24 NY3d 1, 7 (2014) (citing United States v. Alvarez, 567 S. Ct. 2537, 2544 (2012); Brown v. Entertainment Merchants Ass'n, 131 S. Ct 2729, 2733 (2011); People v. Dietze, 75 NY2d 47, 52 (1989)).]

Accordingly, The Case was Dismissed.

The case is The People v. Tackie, 2014BX049086, NYLJ 1202719133780, at *1 (Crim., BX, Decided February 10, 2015).


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