People v Mutell (James)

[*1] People v Mutell (James) 2018 NY Slip Op 51862(U) Decided on December 13, 2018 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2017-957 S CR

The People of the State of New York, Respondent,

against

James M. Mutell, Appellant.

Raymond Negron, for appellant. Suffolk County District Attorney (Rosalind C. Gray of counsel), for respondent.

Appeal from a judgment of the District Court of Suffolk County, First District (Carl J. Copertino, J.), rendered March 27, 2017. The judgment convicted defendant, after a nonjury trial, of aggravated harassment in the second degree, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a misdemeanor complaint with aggravated harassment in the second degree (Penal Law § 240.30 [1]) as a result of telephone communications which included two consecutive messages that had been left on the victim's business answering machine at approximately 10:45 p.m on a specified date. The first message contained the following statements, among others: "I suggest you remove yourself from my life," "Kiss your daughter good night tonight," "Your day will be fucking coming motherfucker," "You're gonna pay," and "You just watch what happens." The second message contained the following statements, among others: "You sleep tonight motherfuckers," "You keep track of me motherfuckers," and "You keep track." Following a nonjury trial, defendant was convicted of aggravated harassment in the second degree and sentenced to eight months' incarceration.

A defendant is guilty of violating Penal Law § 240.30 (1) if, with intent to harass the victim, he or she communicates by telephone a threat to, among other things, cause physical harm to the victim. On appeal, defendant challenges the facial sufficiency of the accusatory instrument with respect to the element of threatening physical harm. Since defendant did not waive the right to be prosecuted by information, the facial sufficiency of the accusatory instrument must be evaluated under the standards that govern the sufficiency of an information (see People v Hatton, 26 NY3d 364, 368 [2015]; People v Kalin, 12 NY3d 225, 228 [2009]; see also CPL 100.15; 100.40 [1]). Defendant also argues that the trial evidence was not legally sufficient to prove that defendant made a threat of physical harm.

In order for Penal Law § 240.30 (1) not to run afoul of the First Amendment right to free [*2]speech, it cannot criminalize threats that are not "true threats" (see People v Marquan M., 24 NY3d 1, 7 [2014]). A "true threat" encompasses "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 US 343, 359 [2003]). "The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death" (id. at 359-360 [internal quotation marks and citation omitted]).

" '[W]hether [the] words used are a true threat is generally best left to the triers of fact' " (United States v Amor, 24 F3d 432, 436 [2d Cir 1994], quoting United States v Carrier, 672 F2d 300, 306 [2d Cir 1982]). We decline to hold that the series of statements made by defendant in two consecutive phone messages late at night is, as a matter of law, incapable of constituting a true threat of physical harm, and, thus, we find that the accusatory instrument is not jurisdictionally defective. Furthermore, that language, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]) and indulging in all reasonable inferences in the People's favor (see People v Ford, 66 NY2d 428, 437 [1985]), was legally sufficient at trial to establish defendant's guilt of aggravated harassment in the second degree.

Additionally, we find that the sentence of eight months of incarceration was not excessive, as it did not constitute an abuse of sentencing discretion or a failure to observe sentencing principles (see Penal Law § 70.15 [1]). We also decline to modify the sentence in the interest of justice (cf. CPL 470.15 [6] [b]; People v Suitte, 90 AD2d 80 [1982]).

Accordingly, the judgment of conviction is affirmed.

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2018