People v Curtis

[*1] People v Curtis 2006 NY Slip Op 50924(U) [12 Misc 3d 1156(A)] Decided on May 18, 2006 Just Ct 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2006
Just Ct

The People of the State of New York,

against

Lawrence A. Curtis, Defendant.



1907-06



Faye Vitagliano, Esq., Assistant District Attorney

Edward D. Czaja, Esq., Attorney for Defendant

Thomas J. DiSalvo, J.

History of the Case.

The defendant was charged with Harassment in the Second Degree, in violation of P.L. Section 240.26(1) on January 21, 2006. An arrest warrant was issued for his arrest on January 23, 2006. The defendant was arraigned on January 27, 2006 and was released on his own recognizance. The matter was adjourned for disposition and appearance of counsel on February 15, 2006. On that date the matter was set down for trial on April 28, 2006.

Facts of the Case.

The people presented two witnesses, i.e. the complainant, Darcy E. Geddis and Charles M. Mundry, an acquaintance of the complainant. Their testimony indicated that the complainant and the defendant have a son in common. On January 21, 2006 their said son played in two hockey games at the Webster Ice Arena. The complainant and the defendant were parties to a Monroe County Family Court Order, which allegedly provided for periods of residency of the child with each of his parents.[FN1] It was reported that the order provided for the mother to transport the child to his various athletic activities and for the father pick up the child at the conclusion of same to begin his period of visitation. However, on the day in question, the [*2]

child had two games. The first game was in the early afternoon and the second game was in the late afternoon. However, the defendant did not pick up the child at the end of the first game. As a result, the complainant determined that the defendant had waived his visitation rights for that weekend.

At the conclusion of game two, the Darcy E. Geddis, Charles A. Mundry, and their respective sons, walked to the complainant's car, since they had car pooled to the hockey game. As the complainant's son put his equipment in the trunk of his mother's car, the defendant approached and according to complainant said to their son "You're going with me". He then reputedly put his arm around his son and attempted to escort him to his car. The complainant then advised the defendant that he had forfeited his visitation rights that weekend by failing to pick up their son after the first game earlier that day. The complainant then followed the defendant and their son to the defendant's car. The complainant testified that the defendant tried to push her away twice while while he was attempting to get himself and his son into his car. On cross-examination the complainant testified that she "may have grabbed his

[defendant's] jacket" as the defendant was walking to his car with his son. She further stated that she put herself between the defendant's car and the defendant, while he was holding onto the boy and trying to get him in his car.

The People's other witness, Charles M. Mundry, testified to the defendant having directed the defendant's son out of the mother's car. He testified to the defendant having grabbed his son by the shoulders and saying "He's going with me". The witness said he saw the defendant push the boy into the driver's side of defendant's car and push the complainant away with his left hand, which resulted in the complainant falling backward on the ground. It was at that point that the witness said he called 911. He then indicated that at that point the son had gotten out of his father's car. The defendant grabbed his son and again pushed the defendant way. The witness testified that it appeared that the defendant was about to punch the defendant, but that he was able to stop him from doing so. In any event, the defendant eventually

left the scene without his son. The people rested after some brief cross-examination of said witness by defense counsel.[FN2]

The defendant then took the stand. He testified to receiving an e-mail from the complainant earlier that day, advising him that he could pick up the child from the hockey arena at 7:00 P.M. that day. Upon conclusion of the second hockey game, the defendant indicated that he approached his son by the complainant's car and said "Common bud we're going". He stated that the complainant told him "You're not taking him. It's my weekend." He further testified to being pushed by the complainant, who then stated "Hit me; Hit me; Hit me". The defendant testified to the complainant flailing at him with her arms, which required the defendant to protect himself by blocking same. In the meantime, the complainant allegedly told the defendant "You're not taking him". The defendant indicated that he told Mr. Mundry to "Go ahead", [*3]

when Mundry said he would call 911. The defendant further testified on direct examination that he did not raise a fist in an attempt to hit the complainant, but only tried to block the complainant from hitting him. On cross-examination, the defendant testified that he did not push the complainant, but that they shoved each other. He stated he was only attempting to keep the complainant away from his son.

Issue Presented.

Did the People establish that the defendant intended to harass, annoy or alarm the complainant herein?

Were the actions of the defendant sufficient to sustain a conviction to Harassment in theSecond Degree as defined by P.L. 240.26(1)?

Conclusion.

The defendant was charged with a violation of Penal Law Section 240.26(1), i.e. Harassment in the Second Degree. The statute does not require that the people prove the subjective state of mind of the complainant. In other words, the People are not required to show that the complaining party felt harassed, annoyed or alarmed, because of being struck, shoved, kicked or subjected to physical contact or because of attempts by the defendant to do so. Instead, the People bear the burden of proving that the defendant intended his own actions to cause the prohibited affect on the complaining party. It is true that "Intent to harass, annoy or alarm required for conviction of harassment may be inferred from surrounding circumstances." People v. Dorns, (1976) 88 Misc 2d 1064,1065, 390 N.Y.S.2d 546, 547. Nevertheless, in order to convict the defendant of Harassment in the Second Degree, as defined by P.L. 240.26(1) the people must prove by proof beyond a reasonable doubt, in accordance with C.P.L. 70.20, every lement of the charge. In this case the element in dispute is the intent of the defendant. P.L. Section 70.10 states that " Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof ...."

The evidence presented by the People fails to establish as true that the defendant intended his actions to harass, annoy or alarm the complainant.[FN3] In fact, when reviewed in the light most favorable to the People and taking into account the testimony of the defendant, it would appear that the actions of both the defendant and the complainant were made with the misguided intention of physically enforcing what the each believed to be their court ordered visitation rights. The evidence is not legally sufficient for a trier of fact to believe that the defendant intended any of his behavior to harass, annoy or alarm the complainant within the [*4]

meaning of offense charged. Instead his actions appeared to be in reaction to those of the

complainant.

In addition, it would appear that the actions of the defendant were simply not sufficient

to establish the offense charged. The sine qua non of any harassment charge is the repetitive

nature of the actions of the harassing party. The words harass and annoy both connote such a

meaning. In this case, the actions of the defendant occurred on one date over a narrow period of

time.

In any event, in order to be consistent, the defendant's actions, even if intentionally alarming in nature, must be persistent over time in order to be considered harassment. A simple isolated incident would not be sufficient. Just as " petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives'" are not sufficient to establish the charge of Assault in the 3rd Degree, P.L. 120.00, [See Matter of Phillip A. (1980) 49 NY2d 198, 200, 424 N.Y.S.2d 418,420], an isolated incident involving petty shoves and raised fists are not sufficient to establish Harassment in the Second Degree as defined by P.L. 240.26(1). As a result, the people have failed to prove beyond a reasonable doubt every element of the offense charged. Therefore, the defendant is found to be not guilty of the offense of Harassment in the Second Degree, as defined by Penal Law Section 240.26(1), and the charge is hereby dismissed. This constitutes the decision and order of this Court.[FN4]

Dated: Webster, New York

May 18, 2006

____________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1: The order was never presented as an exhibit at the trial.

Footnote 2: The defense made a motion for a trial order of dismissal pursuant to C.P.L. 290.10. The Court reserved on said motion.

Footnote 3: Webster's Seventh Collegiate Dictionary defines these terms as follows: Harass means "to annoy continually or chronically" at page 379; Annoy means "to disturb or irritate especially by repeated acts" at page 36; Alarm means "to strike with fear", at page 20.

Footnote 4: Based on the verdict, the Court makes no ruling on the defendant's motion for a trial order of dismissal.