People v C.C.
Annotate this CaseDecided on August 17, 2016
Justice Court of the Village of Tuckahoe, Westchester County
People of the State of New York,
against
C.C., Defendant.
5215-16
Michelle Goldberg, Assistant District Attorney, for plaintiff.
Robert M. Tudisco, Barger & Gaines, for defendant.
David Otis Fuller Jr., J.
The defendant moves to dismiss a violation information for harassment in the second degree [PL §240.26 (3)] for legal insufficiency under CPL §100.40 (c). The information alleges that on April 25, 2016 at about 4:14 p.m. on Bronx Street in the Village of Tuckahoe, the defendant
"did approach David Pope who was sitting inside his vehicle*** did bang on the window of
Mr. Pope's vehicle demanding that he get out of the vehicle. In an aggressive and hostile manner he used profanity and taunted Mr. Pope. He stated to Mr. Pope, why don't you get out of the car you fucking pussy? Are you afraid?' and also you're a cunt.' This course of conduct did alarm and seriously annoy Mr. Pope who felt threatened and in danger for his safety."
For purposes of deciding this motion to dismiss, all allegations in the information are presumed true.
PL §240.26 (3) reads as follows: "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:***3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."
The first sentence of the statute states its purpose; to prevent harassment, annoyance or alarm to another person.
The People declined to respond to the defendant's motion.
In New York, referring from her doorway to the complainant walking down the street as a "bitch" and to her son as a "dog" and saying that she would "beat the crap out of [the complainant] some day or night on the street" does not constitute harassment. People v. Dietze, [*2]75 NY2d 47, 50-52. Nor does a person saying, "I'll get you for this," to a police officer who has him in custody. People v. Todaro, 26 NY2d 325, 329-330. Threatening words, without more, cannot support a charge of harassment. To hold otherwise would deny freedom of expression guaranteed by the First Amendment to the Constitution.
But freedom of expression under the First Amendment has its limits. Banging on the window of a car with a person inside while daring him with epithets of foul abuse exceeds those limits. This is aggressive physical action in close proximity to a person, accompanied by threatening words, not just words alone.
As for supporting a charge of harassment, the banging on Mr. Pope's car window while he was inside, accompanied by vulgar taunts, is a course of conduct that is harassing and could be alarming or seriously annoying as well. Saying "I'll get you," while also shaking his hand at one's former attorney, has been held facially sufficient to support a charge of harassment. People v. Price, 178 Misc 2d 778, 782.
Consonant with the statute, the acts also served no legitimate purpose and the necessary intent may be implied from the acts themselves. People v. Strong, 179 Misc 2d 809, lv. to appeal denied, 94 NY2d 830.
The defendant argues that one incident by itself cannot constitute a course of conduct, citing People v. Valerio, 60 NY2d 669; People v. Otto, 40 NY2d 864; and People v. Hotchkiss, 59 Misc 2d 823. These decisions do not apply because they do not involve a comparable event and are easily distinguishable; calling someone "corrupt," being disruptive and refusing to leave a union hall, and words alone. To constitute a course of conduct, it is not necessary to commit acts repeatedly, People v. Tralli, 88 Misc 2d 117,118.
For the foregoing reasons, the motion to dismiss the information is denied.
Dated: August 17, 2016__________________________________
David Otis Fuller, Jr.
Village Justice
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