When it comes to Harassment in the Second Degree, New York L 240.26, one of the most frequently charged offenses in New York City and likely throughout the State, one issue that criminal attorneys and prosecutors litigate time and time again is what constitutes a meaningful and real threat of harm. Wherever mere words are punishable by law, either civilly or criminally, vagaries and inconsistencies of law inevitably follow. Not only that, but the interaction of such criminal statutes or common law bases for civil liability inevitably run up against the very important and foundational First Amendment protection of free speech.
In a recent criminal case in Mamaroneck Justice Court in Westchester County, the defendant was charged with Harassment relating to comments he allegedly made to his wife inside of their home relating to his concerns over his wife’s perceived misuse of martial assets in the context of their legal separation. The unusual aspect of the alleged statements in this case was that the supposed threat was a direct quote from an action movie, The Equalizer, starring Denzel Washington. “Brick by brick, dollar by dollar, body by body, I’m going to start with you, and I’m going to run through every person that has ever helped you.” Both the defendant and his wife had recently watched the film together.
It is well established that vague statements or general threats, or threats that are conditioned on some future condition or action, are generally insufficient to make out the charge of Harassment under the statute. In addition to that, counsel for the defendant in this instance argued that the fact that the statement was a direct quote from a movie the two had just watched made it even more clear that this was not to be taken literally nor as an immediate or real threat.
The trial court, in deciding on the defense’s motion to dismiss for facial insufficiency, held instead that the statement did constitute an immediate and unambiguous threat of harm. The Court went further to say that the fact that the words were a direct quote from a movie somehow made the threat even more “chilling” and serious. It is absolutely fair to say that another judge on another day could easily have held just the opposite and sided with the defense’s contentions under these circumstances, but the fact that reasonable minds could so easily differ in this area underlines the very real and almost unavoidable ambiguity that comes from criminalizing words, particularly the kinds and categories of words that are covered by a criminal statute that are so fuzzily defined. These kinds of problematic interpretations of language become even more subject to interpretation and misapplication in the context of a married couple or any parties that are well-known to each other. In these close relationships, words and gestures can take on very subtle but clear meaning, and a nod of the head that might not even be noticed between strangers could be a very real and terrifying threat given the right background and context. Likewise, a statement that might be rightly taken as a clear threat of immediate bodily harm among between strangers, might be the most obvious and unambiguous joke between a boyfriend and girlfriend.
As long as a statute like PL 240.26 is on the books in New York, it is imperative that prosecutors, judges and defense attorneys take the time and energy to look beyond the words themselves. The larger context of a relationship and immediate circumstances of the same can have a great impact on the strength or weakness of criminal charges.
To learn more about misdemeanor crimes relating to harassment and fear, review New-York-Lawyers.org or the specific webpages at NYDeskAppearanceTicket.Com for misdemeanor offenses.
Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors.