A Potential Defense to Harassment & Menacing: When the Scope of a Crime is to Large

Regardless of the degree of the crime, Menacing is an extremely serious offense as both a misdemeanor and a felony. Not as serious, but an offense worthy of concern, Harassment in the Second Degree is an arrest charge that should in no way be taken lightly. New York criminal lawyers know that a conviction for either of these offenses will likely leave you reeling for years to come. Because of this, finding legal and evidentiary ways to challenge these arrests are always on the forefront of any defense. The below case is just one example of a legal based approach to these Menacing and Harassment.

The court in People v. Boyette, 2013 NY Slip Op. 23314 addressed the “scope-of-time,” that encompasses an allegation and how it relates to both Menacing and Harassment. In Boyette, the defendant was convicted of, among other things, 2nd Degree Menacing and 2nd Degree Harassment. On appeal, the Appellate Term reversed and dismissed the charges against the defendant.

According to the Court, the People’s accusations of Menacing in the Second Degree (New York Penal Law 120.14) and Harassment in the Second Degree (New York Penal Law 240.26(3)) were overly broad. In short, the People alleged that “‘approximately ten times over a period of seven years’ defendant had placed the victim in fear of physical injury ‘by verbally abusing her, grabbing and breaking a mirror, choking [her], throwing chairs at or towards the victim.'” In addition, “‘on September 24, 2008 at approximately 1:30pm, the Defendant grabbed the complainant’s face, [and] slammed her head [against] the wall.'” The People also alleged that these offenses were “connected together and form[ed] part of a common scheme or plan.” In other words, this conduct was ongoing and not merely a one or two time transgression.

In ultimately knocking out the Second Degree Menacing charge, the Court held that because the charges alleged an “overinclusive duration of time”, they must must be dismissed. In supporting the decision, the Court wrote that when determining a reasonable time period in which an offense is alleged to have taken place, a court must look at “all relevant circumstances” including “among other things: (1) the age and intelligence of the victim and other witnesses; (2) the surrounding circumstances; and (3) the nature of the offense, including whether it is likely to occur at a specific time or is likely to be discovered immediately.” People v. Sedlock, 8 N.Y.3d 535, 539 (2007), quoting People v. Morris, 61 N.Y.2d 290, 296 (1984). Continuing in the same vein, the Court noted that where the charges set forth a “time interval which is so large that it is virtually impossible for a defendant to answer the charges and to prepare a defense,” dismissal of the allegations should follow. People v. Beauchamp, 74 N.Y.2d 639, 641 (1989). Finally, in situations where the time period is not per se unreasonable, “[t]he significantly longer period” is another factor to be scrutinized weighing the “People’s inability to provide more precise times” against “the important notice rights of the defendant” Sedlock at 539, quoting People v. Watt, 81 N.Y.2d 772, 775 (1993).

In applying the above “rules” to the facts of the case, the Court stated that because Harassment and Menacing are continuing offenses, see, People v. Shack, 86 N.Y.2d 529, 541 (1995), there should be a “greater tolerance for broader time periods” see, People v. Sanchez, 84 N.Y.2d 440, 448 (1994). However, the factual allegations, specifically that the defendant menaced and harassed the victim approximately ten times, plus one time on September 24, 2008, over a period of seven years was unreasonable. Concluding, the Court wrote that the defendant “was entitled to pretrial notice of the charges so that he would be able to adequately prepare a defense.” Beauchamp, at 641. Since the time period was overly broad, the court dismissed these specific charges against the defendant.

Its worth noting that although the Court dismissed NY PL 240.26(3) and NY PL 120.14, by no means did that mean this defendant, or any, would be cleared of all crimes. That is, if prosecutors could establish that on a specific date or time the defendant struck the complainant and caused a physical injury it certainly is possible a Third Degree Assault could be substantiated and proper notice given. Any criminal defense attorney can advise that winning one battle does not mean you have or will win the war.

To better understand New York violent crimes and crimes of harassment and fear such as NY PL 120.14 and NY PL 240.26, review the links above or go directly to New-York-Lawyers.org or the NewYorkCriminalLawyerBlog.Com.

Founded by two New York criminal defense attorneys who both served as Assistant District Attorneys in Manhattan, Saland Law PC represents clients in all stages of criminal prosecutions in New York City and many surrounding counties.

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