People v DiBrino

[*1] People v DiBrino 2007 NY Slip Op 51320(U) [16 Misc 3d 1106(A)] Decided on July 3, 2007 Just Ct Of Vil. Of Tuckahoe, Westchester County Fuller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2007; it will not be published in the printed Official Reports.

Decided on July 3, 2007
Just Ct of Vil. of Tuckahoe, Westchester County

The People of the State of New York, Plaintiff,

against

Frank DiBrino, Defendant.



3544-07



Joseph Villanueva, for defendant

Janet DiFiore, District Attorney,

(Carmelina Sapienza, of counsel), for plaintiff.

David Otis Fuller, J.

Can throwing a full envelope at someone support a charge of harassment in the second degree?

The information signed by the defendant's wife charges that the defendant violated

"Section 240.26 Subdivision 1 of the Penal Law of The State Of New York, in that at the time and place aforesaid, the said defendant (s) did with intent to harass, annoy or alarm another person, he strikes, shoves kicks or otherwise subjects him to physical contact or attempts or threatens to do the same." TO WIT; On March 12, 2007 at approximately 2:35 PM near the intersection of Lincoln Ave at Oakland Ave in Tuckahoe, NY Frank DiBrino, with intent to harass and alarm Diane DiBrino did subject Diane DiBrino to physical contact by throwing a letter (Verizon bill in envelope) at her face causing stinging pain and a red mark on the left side of her face from her chin to her cheek."

Section 240.26 (1) of the Penal Law reads as follows:

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

He or she strikes, shoves, kicks or otherwise subjects such other person to [*2]

physical contact, or attempts or threatens to do the same; ***"

The defendant moves to dismiss the information on the ground that, by an objective

standard, a reasonable person, his wife in this case, could not have felt harassed,

annoyed or alarmed by having an envelope thrown at her face, citing People v. Malausky,

127 Misc 2d 84, 87.

In assessing the perception of the alleged victim as material to intent, it is

difficult to perceive how a reasonable person might not have felt harassed, annoyed or

alarmed in this case. The thrown envelope is alleged to have caused "stinging pain and a

red mark on the left side" of the wife's face "from her chin to her cheek." It is basic

that the accused is presumed to have intended the nature and consequences of these acts.

As for the acts themselves, although no decision was found where throwing an

envelope was used to support a harassment charge, there are analogous cases.

Courts have held that spitting or throwing pennies at someone, (People v.Carlson, 183

Misc 2d 630, 634, and citing People v. Brodsky (NYLJ April 23, 1999 at 35,col. 5) ,

were allegations sufficient to satisfy the physical contact required by the statute. Direct

bodily contact was not necessary.

Since spitting or throwing pennies has been held to support the conduct needed,

throwing an envelope at such a distance and with such force as to cause stinging and a

red mark on the face should also be sufficient.

Of course, finding the information sufficient is not the same as finding proof beyond

reasonable doubt. People v. Henderson, 92 NY2d 677, 680. It is simply enough [*3]

to sustain the information as making out a prima facie case of the harassment charged

with these non-hearsay allegations of intent and behavior.

Accordingly, the defendant's motion to dismiss is denied.

____________________________

DAVID OTIS FULLER, JR.

VILLAGE JUSTICE

Dated: July 3, 2007