People v LaRuez

[*1] People v LaRuez 2005 NY Slip Op 50116(U) Decided on February 3, 2005 Justice Court Of Town Of Webster, Monroe County DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 3, 2005
Justice Court of Town of Webster, Monroe County

The People of the State of New York

against

Cheryl K. LaRuez, Defendant.



20865-04



Ronald J. Passero, Esq., Attorney for Defendant

Matthew J. Rich, Esq., Assistant District Attorney

Thomas J. DiSalvo, J.

History of the Case

Thomas J. DiSalvo, J. 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: Theallegations of the factual part of the information, together with thoseof any supporting depositions which may accompany it, provide reasonablecause 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 [*2]

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)[FN1], 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

"... 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 [*3]

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".[FN2]

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 [*4]

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.[FN3] As a result,

the defendant's motion to dismiss the complaint as insufficient pursuant to CPL 100.15(3) and

CPL 100.40(1)(b) is hereby granted.

This constitutes the decision and order of this court this 3rd day of February, 2005.

__________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1: 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.

Footnote 2: The defendant was charged pursuant to harassment in the second degree, which was previously numbered as P.L. 245.25(1).

Footnote 3: 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.