People v Tackie

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[*1] People v Tackie 2015 NY Slip Op 50117(U) Decided on February 10, 2015 Criminal Court Of The City Of New York, Bronx County Rodriguez-Morick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2015
Criminal Court of the City of New York, Bronx County

The People of the State of New York,


Benjamin Tackie, Defendant.


Defense CounselJeremy Robert Davidson, Esq.The Legal Aid Society260 East 161st Street, 10th FloorBronx, New York 10451 The PeopleAndrew J. LeeAssistant District AttorneyBronx County District Attorney Office198 East 161st StreetBronx, New York 10451
Jeanette Rodriguez-Morick, J.

Defendant Benjamin Tackie ("Defendant") stands charged with aggravated harassment in the second degree, Penal Law § 240.30(1)(a), and harassment in the second degree, id. § 240.26(1). He moves to dismiss both charges for facial insufficiency, pursuant to C.P.L. § 170.30(1)(a), 170.35(1)(a), and 100.40(1), and for other alternative relief.

For the reasons that follow, Defendant's motion to dismiss is GRANTED.[FN1]

Background [FN2]

During a telephone call between Defendant and complainant Daphane Jean ("Complainant"), Complainant told Defendant to stop calling her friend, whereupon Defendant became agitated and stated, "DON'T LET ME USE MY BOXING ON YOU."


To be facially sufficient, the factual allegations of an accusatory instrument must provide reasonable cause to believe that the defendant committed the charges asserted therein. C.P.L. § 100.40(1)(b). The accusatory instrument must include non-hearsay allegations of fact that, if true, establish "every element of the offense charged and the defendant's commission thereof." Id. § 100.40(1)(c). Generally, a deficiency as to the factual allegations supporting the elements of the crime entitles a defendant to dismissal on the ground that the information is defective. Id. §§ 170.30(1)(a); 170.35(1)(a). But "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000).

A.Aggravated Harassment in the Second Degree

A person is guilty of aggravated harassment in the second degree when, (1) [*2]"[w]ith intent to harass another person"; (2) "the actor communicates, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, a threat to cause physical harm to . . . such person"; and (3) the actor "knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety . . . ." Penal Law § 240.30(1)(a). The Legislature amended this statute in July 2014 in response to the Court of Appeals' holding in People v. Golb that the prior version of the same statute was unconstitutionally vague on its face.[FN3] 23 NY3d 455, 467 (2014) (noting that "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"), rearg. denied, 24 NY3d 932 (2014).

The Court of Appeals recently reiterated that "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." People v. Marquan M., 24 NY3d 1, 7 (2014) (citing United States v. Alvarez, 567 S. Ct. 2537, 2544 (2012); Brown v. Entertainment Merchants Ass'n, 131 S. Ct 2729, 2733 (2011); People v. Dietze, 75 NY2d 47, 52 (1989)).

Here, Defendant's single, equivocal statement—i.e., "DON'T LET ME USE MY BOXING ON YOU"—hardly constitutes "fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct." See id.; see also Dietze, 75 NY2d at 54. Nor can the statement "only reasonably be interpreted as presenting a clear and present danger of some serious substantive evil, sufficient for criminal liability to attach." See People v. Wilson, 59 AD3d 153, 154 (2009) (quoting Dietze, 75 NY2d at 51 (1989)). " 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. at 359 (2003) (citing Watts v. United States, 394 U.S. 705, 708 (1969)). Such threats arise when "an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury,' whether or not the defendant subjectively intended the communication to convey a true threat." Bonitto, 4 Misc 3d at 389 (quoting United States v. Francis, 164 F.3d 120, 123 (2d Cir. 1999)).

Turning to the merits of Defendant's motion here, the court finds that the charge of Penal Law § 240.30(1)(a) is insufficient because his statement does not rise to the [*3]level of a "true" or "genuine threat" of physical harm. The sole statement attributed to Defendant lacks the specificity of communications that trigger criminal liability under the statute. Cf. People v. Wilson, 59 AD3d 153, 153 (1st Dep't 2009) ("If you cared about your daughter's well-being, about her safety, you will drop the charges."); see also People v. Mitchell, 24 Misc 3d 1249(A), 2009 NY Slip Op. 51931(U), at * 1 (Bronx Co. Sup. Ct. 2009) ("I'm gonna kill you, I'm gonna hurt, I'm sorry and I love, you're a ho, a bitch, a slut, if you ever let my baby see another man I'm gonna hurt you and no one will stop me from killing you."); People v. Olivio, 6 Misc 3d 1034(A), at * 1 (NY Co. Crim. Ct. 2005) ("[W]ho are the women. . . . [I]f I see you with another woman I'll fuck you up."); People v. Tiffany, 186 Misc 2d 917, 918 (NY Co. Crim. Ct. 2001) ("If you try to keep my son away from me I'm going to put a bullet in your head.").

Defendant's motion to dismiss this charge is therefore granted.

B.Harassment in the Second Degree

Penal Law § 240.26(1) provides that "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person . . . [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same[.]"

In this case, because the second-degree harassment charge is based wholly on verbal threats, the pleadings in support of the charge must comply with the free-speech protections already discussed above with respect the aggravated harassment charge. See Dietze, 75 NY2d at 53-54 ("Defendant's conviction under section 240.25(1) [i.e., present 240.26(1)] must also be reversed. There is nothing in the record demonstrating that defendant's statement that she would beat the crap out of [complainant] some day or night in the street' was either serious, should reasonably have been taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst." (brackets in original)).

For reasons already stated, see supra (where the court held the aggravated harassment charge insufficient), the statement attributed to Defendant is not a "genuine threat."

Accordingly, Defendant's motion to dismiss this charge is granted.

This constitutes the Decision and Order of the Court.

Dated: February 10, 2015

Bronx County, New York



Jeanette Rodriguez-Morick

Judge of the Criminal Court Footnotes

Footnote 1:In deciding this motion, the court has considered the following materials: Defendant's motion [i.e., Notice of Motion, dated December 23, 2014; the affirmation of Jeremy Robert Davidson, Esq. ("Davidson Aff."), dated December 23, 2014; and Memorandum of Law, dated December 23, 2014]; the People's affirmation in opposition, dated January 13, 2015 ("Aff. in Opp'n"); the complaint, dated September 12, 2014; and the court action sheets.

Footnote 2: For purposes of this motion, the court is required to presume the factual allegations to be true, People v. Jackson, 18 NY3d 738, 741 (2012); C.P.L. § 100.40(1)(c), and must "draw reasonable inferences from all the facts set forth in the accusatory instrument," see Jackson, 18 NY3d at 747.

Footnote 3:A person was guilty under the prior version of Penal Law § 240.30(1)(a) "when, with intent to harass, annoy, threaten or alarm another person, he or she . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm."