In New York State, especially in New York City, arrests for Second Degree Aggravated Harassment, New York Penal Law 240.30, are fairly routine. Routine doesn’t mean the crimes are taken lightly by the NYPD or the District Attorney of Manhattan, Brooklyn, Queens or the Bronx. In fact, it is quite the opposite. Whenever there are threats of violence the NYPD will make the arrest and often let prosecutors figure out later what to do with the case. That is not to say the NYPD is not diligent, but all branches of law enforcement are overly cautious and seemingly would rather make an arrest that is later challenged or voided, then leave a threat of violence alone that ultimately festers into an actual act of violence. This line of thinking by law enforcement begs the following question. What is the legal standard that must be crossed for a threat to rise to the level of a valid arrest and prosecution? The following helps answer this question.
In People v. Gibbs, 2015BX030697, NYLJ 1202745708238, at *1 (Crim., BX, Decided November 30, 2015), the accused called a friend (I guess it would technically be a former friend) and according to the accusatory instrument (the complaint) stated:
“DAVID TRIED TO TOUCH ME. DAVID IS A RAPIST. I’LL HAVE TO DEFEND MYSELF IF HE TRIES TO TOUCH ME AGAIN. I’M GOING TO PUT YOU AND DAVID IN JAIL. DAVID OWES ME MONEY. WATCH WHEN I SEE YOU. I DON’T KNOW WHY YOU HAVE TO INVOLVE THE POLICE. THIS HAS NOTHING TO DO WITH YOU. IF YOU THINK IT’S BAD WHAT I DID TO DAVID, YOU’RE GOING TO SEE WHAT’S GOING TO HAPPEN TO YOU.”
As a result of the above message that was left on her mobile phone, the complainant stated that she was annoyed, alarmed and feared for her physical safety. As such, according the District Attorney, the complaint charged the defendant with violating New York Penal Law 240.30(1)(a), Aggravated Harassment in the Second Degree. Despite the prosecution’s confidence in their case, a judge was asked to determine whether or not the allegations as contained in the four corners of the charging papers was legally sufficient. Ultimately, the court found that it was not.
When determining whether a accusatory instrument in New York sufficiently establishes the crime of PL 240.30(1)(a), the following elements must be satisfied. First, do the papers support that the accused had the intent to harass the complainant? Second, did the defendant cause a communication to occur? Third, was there a threat of physical harm? Fourth, did the defendant know or have reason to know that the complainant would reasonably fear harm or physical safety? Each and every one of these elements must be satisfied on the face of the complaint.
“Unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized” (People v. Dietze, 75 NY2d 47, 51 , citing Terminiello v. Chicago, 337 US 1, 4-5 ). Only particular kinds of communication may be prohibited, such 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 ).
Analyzing the law further, the judge recognized the following:
True threats are those that “by their utterance alone, inflict injury or tend naturally to evoke immediate violence” (People v. Golb, 23 NY3d 455, 467 , quoting Dietze at 52). In order for a communication to qualify as a true threat, “an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury” (People v. Olivio, 6 Misc 3d 1034[A], *2 [Crim Ct, New York County 2005] [internal citations omitted]). Furthermore, a true threat is one that is “clear, unambiguous, and immediate” (People v. Orr, 47 Misc 3d 1213[A], *2 [Crim Ct, New York County 2015]; People v. Brodeur, 40 Misc 3d 1070, 1073 [Crim Ct, Kings County 2013]; People v. Yablov, 183 Misc 2d 880, 886 [Crim Ct, New York County 2000]).
Applying the legal rules above, the court stated that the voice message “lacks the characteristics of a true threat. It is not a statement that tends naturally to evoke immediate violence because it is unclear what is actually being threatened.” Simply, because it is not known what the defendant would do, the language is too ambiguous to support the charge of PL 240.30.
It is worth pointing out that the prosecution could likely have avoided the dismissal and legal sufficiency issue by adding into the accusatory information that the defendant had broken the David’s jaw.
That type of threat and referencing this injury certainly would have caused fear for the complainant’s safety. For whatever reason, however, the People did not provide this information within the four corners of the charging document.
Although this case was ultimately dismissed, the importance of the decision extends well beyond the accused. It is critical that when charging Second Degree Aggravated Harassment, and specifically New York Penal Law 240.30(1)(a), that each element is made out in a complaint and there is no ambiguity as to potential threat and consequences. If the prosecution fails to provide this, you and your criminal defense attorney may have a case that is ripe for dismissal.
To learn more about Second Degree Aggravated Harassment, search this blog where many cases have been analyzed and reviewed. Further information is available through the links to the New-York-Lawyers.org website.
The New York criminal lawyers at Saland Law PC represent clients in both domestic and non-domestic Second Degree Aggravated Harassment arrest and Desk Appearance Tickets throughout New York City and many suburban townships. Both founding partners and New York City criminal defense lawyers at Saland Law PC served as Assistant District Attorneys in the Manhattan District Attorney’s Office.