People v Orr

[*1] People v Orr 2015 NY Slip Op 50568(U) Decided on April 22, 2015 Criminal Court Of The City Of New York, New York County Statsinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2015
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Mshaka Orr, Defendant.



2014NY091191



For the Defendant: Charles A. Miller, Esq.For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Melissa Hindman.
Steven M. Statsinger, J.

Defendant, charged with aggravated harassment in the second degree, in violation of Penal Law § 240.30(1)(a), and harassment in the second degree, in violation of Penal Law § 240.26(3), moves to dismiss, arguing that the information is facially insufficient. This case requires the Court to examine the "true threat" doctrine. Here, the Court concludes that the statements defendant is charged with making to the complainant are not "true threats." Accordingly, the motion to dismiss is GRANTED as to Count One, which charges the defendant with violating § 240.30(1)(a). However, since a statement need not be a threat, let alone a true one, to violate § 240.26(3), the motion is DENIED as to Count Two.

Defendant also moves to suppress certain post-arrest statements. As to that, the Court GRANTS a Huntley/Dunaway hearing.

I. FACTUAL BACKGROUND

A. The Allegations

According to the accusatory instrument, on November 24, 2014, the defendant telephoned the complainant, with whom he has a child in common, and said: "I can have you handled." He then sent her via text the following two messages: "Go kill yourself bitch" and "You're not worth the air to take the jump bitch." These communications caused the complainant to fear for her safety.

B. Legal Proceedings

Defendant was arraigned on December 7, 2014, on a misdemeanor complaint charging him with charged with aggravated harassment in the second degree, in violation of Penal Law § 240.30(1)(a), and harassment in the second degree, in violation of Penal Law § 240.26(3). The court released the defendant, and adjourned the case for conversion.

On December 16, 2014, the People filed, off-calendar, a certificate of readiness and the supporting deposition of the complainant. At the next calendar call, the Court set a motion schedule.

Defendant filed the instant motion to dismiss on February 12, 2015, and the People responded on February 26. The motion has been sub judice since then.

II. THE INFORMATION

The misdemeanor complaint, sworn out Police Officer Eric Hayden, provides, in relevant part, that:

I am informed by Andrea Ward ... that [on November 24, 2014, inside 4 East 28 Street in New York County] she received several calls and texts from a number she knew to ... be the defendant's. Ms. Ward informs me that she recognized the voice of the caller to be that of the defendant's, and the defendant stated in substance, "I CAN HAVE YOU HANDLED." Ms. Ward further informs me that the defendant sent text messages that stated in substance, "GO KILL YOURSELF BITCH" and "YOU'RE NOT WORTH THE AIR TO TAKE THE JUMP BITCH." Ms. Ward informs me that the defendant's above conduct caused her to fear for her safety and caused significant alarm .

The filing of a supporting deposition from Ms. Ward converted the misdemeanor complaint to an information.

III. DISCUSSION

As the Court of Appeals recently cautioned, "any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence." People v. Golb, 23 NY3d 455, 467, 15 N.E.3d 805, 813, 991 N.Y.S.2d 792, 800 (2014). Communications that are not protected by the First Amendment are those "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, 19 N.E.3d 480, 485, 994 N.Y.S.2d 554, 559 (2014). This Court readily concludes that the statements alleged here do not meet this strict standard, as they are not "true threats." In fact, two of them are not threats at all. Thus, defendant's motion to dismiss is granted as to Count One. However, it is denied as to Count Two, because Penal Law § 240.26(3) does not require, as an element, that there be a communication, let alone that the communication be threatening.

A. Facial Sufficiency in General

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12 N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

B. The "True Threat" Doctrine

In order to comport with the First Amendment, "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." Marquan M., 24 NY3d at 7, 19 N.E.3d at 485, 994 N.Y.S.2d at 559. "True threats" encompass "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 1548 (2003) . More generally, to constitute a "true threat," a remark must be contain a threat that is "clear, unambiguous, and immediate." People v. Brodeur, 40 Misc 3d 1070, 1073, 969 N.Y.S.2d 774, 776 (Crim Ct Kings County 2013). Where the language at issue "is incapable of constituting a true threat, as a matter of law, the complaint should be dismissed." People v. Bonito, 4 Misc 3d 386, 777 N.Y.S.2d 900 (Crim Ct NY County 2004).

C. The Information Does Not Allege a "True Threat" and Does Not Make Out a Prima Facie Case Under Penal Law § 240.30(1)(a).

1. Introduction

Defendant is charged under Penal Law § 240.30(1)(a), which makes it a crime to, inter alia, communicate by telephone, with the intent to harass or annoy, " a threat to cause

physical harm to, or unlawful harm to the property of, [another] person, or a member of such person's same family or household." The defendant must also "know[] or reasonably should know that such communication will cause [the other] person to reasonably fear harm." Defendant argues that the phrase "I can have you handled" is "vague and does not constitute a direct threat to cause physical harm to another person." Miller Aff. at ¶ III (8). He also argues that the two text messages described in the accusatory instrument — "go kill [*2]yourself bitch" and "you're not worth the air to take the jump bitch" — contain "no threat by the speaker ... to cause physical harm to the complainant or anyone else." Id. Rather, according to defense counsel, they seem to "figuratively invite the complainant to get lost, similar to the adage Go Fly a Kite.'" Id. In very large part, the Court agrees.

This Court recently noted that a "threat" is a "communicated intent to inflict harm or loss on another or on another's property, " and that a threat is a "true threat when an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury." People v. Williams, 46 Misc 3d 1208(A) (Crim Ct NY County 2015) (Statsinger, J.), citations and internal quotation marks omitted. In connection with this motion, the Court has extensively surveyed New York case law on this issue. That survey reveals that, invariably, communications consistent with the definitions in Williams have been found to be "true threats," while those that fall short of it have not been.

2. Cases Where a "True Threat" Occurred

The following cases are those in which a court found a communication to constitute a "true threat." They all share a common feature: in each, the communication conveyed a clear and unambiguous message that the recipient could not help but understand as a threat of future injury: Williams, 46 Misc 3d at 1208(A) (defendant threatened to have complainant evicted); Smith v. NYC Dept of Educ., 109 AD3d 701, 972 N.Y.S.2d 221 (1st Dept. 2013) (death threats against an arbitrator); People v. Brodeur, 40 Misc 3d 1070, 969 N.Y.S.2d 774 (Crim Ct Kings County 2013) (defendant threatened to kill the complainant); People v. Mitchell, 24 Misc 3d 1249(A), 899 N.Y.S.2d 62 (Sup Ct Bronx County 2009) (defendant threatened to kill complainant and her child); People v. Evans, 21 Misc 3d 260, 867 N.Y.S.2d 862 (Crim Ct Kings County 2008) (defendant told complainant he would get his "goons" to "beat her up"); People v. Brady, 19 Misc 3d 1139(A), 866 N.Y.S.2d 93 (Monroe County Ct 2008)(defendant wrote a letter to complainant stating that complainant should "stay out of his business or he would do something that even the courts could not reverse"); People v. Taylor, 19 Misc 3d 1114(A), 859 N.Y.S.2d 906 (Crim Ct Kings County 2008) (defendant told complainant he was going to "fuck him up"); People v. Limage, 19 Misc 3d 395, 851 N.Y.S.2d 852 (Crim Ct Kings County 2008) (in a text, defendant told complainant that he was outside her residence and that she would end up in the hospital); People v. Hernandez, 7 Misc 3d 857, 795 N.Y.S.2d 862 (Crim Ct NY County 2005) (defendant threatened to cut complainant's face and damage his car); People v. Olivio, 6 Misc 3d 1034(A), 800 N.Y.S.2d 353 (Crim Ct NY County 2005) (defendant told complainant, "If I see you with another woman I'll fuck you up."); People v. Cooper, 4 Misc 3d 788, 781 N.Y.S.2d 201(Dist Ct Nassau Co 2004) (defendant called the complainant and warned that if the complainant's husband did not stop calling the defendant's wife, defendant would "bury her," and that she had "been warned"); People v. Prisinzano, 170 Misc 2d 525, 648 [*3]N.Y.S.2d 267 (Crim Ct NY County 1996)) (defendant told complainant that "when the cops leave, the blood is going to run off of your bald fucking head," "[o]nce the police leave, I'm going to get you,"; and "once the police leave you'll get yours").

3. Cases with no "True Threat"

By contrast, in the cases discussed below, which are those where a New York court has found that a communication was not a true threat, the communication almost variably lacked the one of central elements common to those above - it either did not contain a threat of future injury at all, or the seeming threat was not sufficiently specific.

Most of the non-true-threat cases have turned on a lack of specificity. That is what was lacking lacking in People v. Tackie, 46 Misc 3d 1218(A) (Crim Ct Bronx County 2015), where the alleged threat was "Don't let me use my boxing on you." In People v. Thompson, 28 Misc 3d 483, 905 N.Y.S.2d 449 (Crim Ct Kings County 2010), likewise, the defendant told the complainant, "I am on my way over there, "then appeared outside the complainant's apartment building a few minutes later. Even in combination, these facts did not constitute a "clear, unambiguous, and immediate threat to the complainant." Id. Similarly, in People v. Yablov, 183 Misc 2d 880, 706 N.Y.S.2d 591 (Crim Ct NY County 2000), the phrase "I'll get you," in the context of the complete statement was "too vague to pose an immediate threat of physical harm." A similar result was reached in People v. Behlin, 21 Misc 3d 338, 863 N.Y.S.2d 362 (Crim Ct Kings County 2008), where the defendant told the complainant, a school principal, that she had better "watch it" and that he was going to "get" her. This was not a "clear, unambiguous and immediate threat." Id.

In addition, unwanted, even highly offensive, communications have failed to constitute true threats, where either no potential future injury was specified, or the injury threatened was not one covered by the statute. People v. Franco, 15 Misc 3d 1136(A), 841 N.Y.S.2d 822 (Crim Ct NY County 2007), involved a letter making vulgar and unwanted amorous advances to complainant. But "defendant's ineptitude, and even offensiveness, as a suitor [was] insufficient to establish the charged offense." Id. Another case involving an inept suitor is People v. Bonitto, 4 Misc 3d 386, 777 N.Y.S.2d 900 (Crim Ct NY County 2004). There, a jail inmate sent two letters to a stranger. In the first, he asked her for permission to call her. In the second, sent one month later, defendant observed that if he could not get the complainant's attention, he would resort to resort to "Plan B." The court held that even "[t]he reference to Plan B' [was], at most, vague and ambiguous and seems to be explained by the final sentence of the letter, which advises that the defendant, in the absence of a response, will call the complainant." Id. In People v. Goris, 39 Misc 3d 1217(A), 975 N.Y.S.2d 368 (Crim Ct Kings Co 2013), the defendant chastised the complainant for not taking his phone calls and for being disrespectful, but there was "no indication of a threat." In People v. Khaimov, 26 Misc 3d 1202(A), 906 N.Y.S.2d 782 (Crim Ct NY County 2009), defendant called the complainant and said, "Watch your step or something is going to [*4]happen to you. Stop calling him about child support. Your daughter is a prostitute." The court found that this "alleged threat is not clear, is ambiguous and does not appear to be a true threat." Id. Finally, People v. Pierre-Louis, 34 Misc 3d 703, 927 N.Y.S.2d 592 (Dist Ct Nassau County 2011), involved vulgar and vituperative voice mails left for an A.D.A., including the remark "I'm coming at you with fury." Although the defendant's language was abusive and vulgar, it was clear that, in context, the only threat was to try to have the A.D.A. fired. Id.

4. There is No "True Threat" Here.

It is clear that defendant's communications with the complainant were unwanted - she did, after all, report them to the police - and alarming to her. They are not, by any stretch, however, true threats. The phrase "I can have you handled," is subject to a variety of interpretations, but is really no more clear or specific a threat than the phrase "I'll get you," which at least two courts have concluded did not constitute a true threat. Yablov, 183 Misc 2d at 880, 706 N.Y.S.2d at 591; Behlin, 21 Misc 3d at 338, 863 N.Y.S.2d at 362. It also analogizes closely to the phrase "something is going to happen to you," also not a true threat. Khaimov, 26 Misc 3d at 1202(A), 906 N.Y.S.2d at 782.

The text messages described in the information fall even farther from the "true threat" standard, as they are not threats at all. The phrases "go kill yourself bitch" and "you're not worth the air to take the jump bitch" are clearly efforts to insult and degrade the complainant. But they not threats, in that they do not warn the recipient of any sort of future harm.

5. Conclusion

Because the communications directed at the complainant were not true threats, Count One, which charges a violation of Penal Law § 240.30(1)(a), is facially insufficient. That count is accordingly dismissed.

D. The Facts Alleged Make Out a Prima Facie Case Under Penal Law § 240.26(3)

The Court reaches a different conclusion, however with respect to Count Two, which charges the defendant with violating Penal Law § 240.26(3).

That section provides that a "person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person ... [h]e ... engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." Unlike § 240.30(1)(a), however, this section does not require, as an element, that there be a threat. Thus, while threats can certainly violate this section, see, e.g., People v. Curko, 4 Misc 3d 159(A), 950 N.Y.S.2d 724 (App. Term 9th and 10th Dists. 2012), this offense can be made out by conduct alone, not speech, or by communications that are not threatening, or by a combination of both.

For example, in People v. Kelly, 44 Misc 3d 1203(A), 997 N.Y.S.2d 100 (Crim Ct NY County 2014) (Statsinger, J.), this Court held that an information made out a sufficient [*5]prima facie case under § 240.36(3), where the defendant was charged with repeatedly approaching the complainant in Central Park and following him. People v. Seitz, 44 Misc 3d 1226(A), 998 N.Y.S.2d 307 (Crim Ct NY County 2014) (Statsinger, J.) involved a combination of nonthreatening communications and harassing conduct. And, finally, in People v. Richards, 22 Misc 3d 798, 869 N.Y.S.2d 731 (Crim Ct NY County 2008), defendant violated § 240.26(3) by repeatedly blocking the path of a pedestrian and aggressively trying to persuade her to buy a balloon.

The facts alleged here are all of a piece with the above cases. While defendant cannot be said to have threatened the complainant, as discussed in great detail above, that does not render the § 240.26(3) count insufficient, because all of the elements of that offense are otherwise sufficiently pled. First, defendant engaged in a course of conduct - a "pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." Kelly, 44 Misc 3d 1203(A), 997 N.Y.S.2d 100 at *3. Calling the complainant and texting her twice on the same day meets this definition.

In addition, this course of conduct alarmed the complainant and caused her to fear for her safety; she has sworn to this in her supporting deposition. And, finally, defendant's conduct served "no legitimate purpose" other than to alarm or seriously annoy the complainant. Williams, 45 Misc 3d 1202(A), 3 N.Y.S.3d 286 at *2-3. Defense counsel has conceded as much in his own affidavit, in which he characterizes the text messages as an invitation to the complainant "to get lost, similar to the adage Go Fly a Kite.'"[FN1]

Accordingly, since all of the elements of Penal Law § 240.26(3) are sufficiently pled, the information is facially sufficient as to Count Two, and the motion to dismiss that count

is denied.

IV. CONCLUSION

For the foregoing reasons, defendant's motion to dismiss for facial insufficiency is granted as to Count One and denied as to Count Two. In addition, the Court grants a Dunaway/Huntley hearing.

This constitutes the Decision and Order of the Court.

Dated: April 22, 2015_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court

Footnotes

Footnote 1:One slang dictionary quite aptly defines this phrase as "As nice way to say go f**k yourself." http://www.urbandictionary.com/define.php?term=go+fly+a+kite, last accessed April 15, 2015.