This post examines a recent opinion issued by the Justice Court, Town of Webster, New York, Monroe County: People
v. Grammatico, 2017 WL 22441 (2017). The judge begins the opinion by
explaining that
[t]he defendant was charged with
aggravated harassment in the second degree in violation of Penal Law Section 240.30(1)(a) alleged to have occurred on August 29, 2016. An
arrest warrant was then issued for the arrest of Nicolas A. Grammatico. The
defendant was arraigned in an `off hours’ arraignment on September 13, 2016. At
the time of his arraignment he was accompanied by his attorney. The defendant
was released on his own recognizance at that time. Subsequently defense counsel
filed a motion with the court requesting the dismissal of the information,
alleging that same was defective and being insufficient on its face pursuant
to [New York Criminal Procedure Law] §§ 100.15, 100.40, 170.30 and 170.35.
The accusatory instruments consisted of a complaint prepared by Officer Alex
Kirkpatrick and a two page supporting deposition sworn to by Robyn L.
Grammatico, the alleged victim herein.
People v. Grammatico, supra.
It was alleged in the complaint in pertinent
part that
` . . . the defendant made an alarming
phone call to the victim, Robyn L. Grammatico while she was at her home address
of 612 Wild Mallard Trail located in the Town of Webster, County of Monroe,
State of New York. While on the phone with the victim the defendant stated “I
am going to hurt you and make you pay for what you did to me”’.
The supporting deposition of Robyn
Grammatico alleged that the defendant is her step son. She further stated that
the defendant called her disparaging names. She also stated that despite her
requests not to do so, the defendant placed numerous phone calls to her which
were harassing and threatening in nature. However, the main thrust of her
supporting deposition is as follows: `Nicholas [sic] blamed me for the incident
on 5/8/16 [his mental health arrest] and told me “I am going to hurt you and
make you pay for what you did to me.”’ Ms. Grammatico went on to say that the
defendant has `access to various types of weapons’. Finally, she stated that `I
would like to mention that on 8/29/16 Nicholas [sic] also told me that he was
going after my brother Ronald Butera’.
People v. Grammatico,
supra.
The judge then identifies the “issue granted” in this case:
Do the words `I am going to hurt you
and make you pay for what you did to me’ amount to `a threat to cause physical
harm’?
People v. Grammatico,
supra.
The judge then began his analysis of that issue, explaining
that THE
current wording of Penal Law
Section 240.30 relative to aggravated harassment in the second degree was
put into affect on July 23, 2014. In particular subsection (1)(a) states as
follows:
`A person is guilty of aggravated harassment
in the second degree when:
1. With
intent to harass another person, the actor ...:
(a) communicates,
anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by
transmitting or delivering any other form of communication, a threat to cause
physical harm to, or unlawful harm to the property of, such person, or a member
of such person's same family or household as defined in subdivision one
of section 530.11 of the criminal procedure law, and the actor knows or
reasonably should know that such communication will cause such person to
reasonably fear harm to such person's physical safety or property, or to the
physical safety or property of a member of such person's same family or
household.’
There is no doubt that the defendant's
statement that `I am going to hurt you and make you pay for what you did to me’
is a threat. That term has been defined as `an expression to hurt, destroy,
punish, etc.’ (Webster's New World Dictionary and Thesaurus, [2nd Edition 2002]
) However, not all threats can form the basis of a violation of Penal Law § 240.30(1)(a). In fact a distinction has been drawn between a threat that is
unclear, ambiguous and non-immediate and a `true threat’. (See People
v. Orr, 47 Misc.3d 1213[A], 2015 N.Y. Slip Op. 50568[U],*2 [2015] ).
In other words there is a distinction between a generalized or vague threat and
a true threat of physical harm. The court in Orr held that
`Where the language at issue “is incapable of constituting a true threat, as a
matter of law, the complaint should be dismissed’”.
People v. Grammatico,
supra.
The judge goes on the explain that,
[n]evertheless, in reviewing
Informations for sufficiency the court must always weigh the language of the
applicable sufficiency statutes, i.e. CPL §§ 100.15, 100.40, 170.30 and 170.35
against the case law that discourages the dismissal of informations on sufficiency
grounds.
`The prime facie requirement does not
necessitate that the information allege facts that would prove defendant's
guilt beyond a reasonable doubt. People
v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y .S2d 652, 657, 504 N.E.2d 1079,
1084 (1986). Rather, the Information need only contain allegations of fact that
‘give an accused sufficient notice to prepare a defense and that are adequately
detailed to prevent a defendant from being tried twice for the same offense’ People v. Casey, 95 N.Y.2d 354, 360, 717
N.Y.S.2d 88,91, 740 N.E.2d 233 236 (2000). A court reviewing for facial
insufficiency must subject the allegations in the Information to a ‘fair and
not overly restrictive or technical reading.’ id., assume that those
allegations are true, and consider all reasonable inferences that maybe drawn
from them. CPL §§ 100.40, 100.15; People
v. Jackson, 18 NY3d 738, 747, 944 N.Y.2d 715, 721–722, 967 N.E.2d 1160,
1166–67 (2012. See also Casey, 95
N.Y.2d at 360, 717 N.Y .S.2d at 91, 740 N.E.2d at 236. (People v. Williams, 46 Misc.3d 1208[A] 2915 N.Y. Slip Op. 50017, *2
[U] [2015]).
People v. Grammatico,
supra.
The judge continues his analysis, pointing out that
[t]he offense charged herein is not
based on a specific physical action, such as an assault or a larceny. Instead,
the offense is based on words allegedly used by the defendant that were
directed to another person. Penal Law Section 100.40(1)(c) requires that `Non-hearsay
allegations of the factual part of the information and/or any supporting deposition
establish if true, every element of the offense charged and the defendant's
commission thereof.’ The key element of subdivision (1)(a) of the aggravated
harassment in the second degree statute is that of `a threat to cause physical
harm’. Thus not all threats constitute an element of the charge. For
example a threat to make use of the court system against another individual is
not prohibited, i.e. threat to sue for custody of a child. In fact, `More
generally, to constitute a ‘true threat’ a remark must ... contain a threat
that is ‘clear, unambiguous, and immediate.’
Nevertheless, a court need not evaluate
a particular statement completely disconnected from other alleged statements
set out in the accusatory instruments. To do otherwise is to ignore how the
totality of the statements in question would be interpreted by a reasonable
person to whom the statements were directed. `The defendant must also “know[ ]
or reasonably should know that such communication will cause [the other] person
to reasonably fear harm.”’ The supporting deposition of Ms. Grammatico
indicated that the defendant allegedly also called her a `bitch’ and `a gold
digging bitch’.
However, those statements are not
threats. Even taken as a whole, one is
still left to wonder what were the intentions of the defendant. The word hurt
in the current context can have a number of meanings, other than an intent to
injure to person or property. It can be that he intends to hurt the
relationship between Ms. Grammatico and the defendant's father. It can be that
the defendant intends to take legal action against her.
The same analysis must apply to the
alleged statement that the defendant `was going after’ Ms. Grammatico's
brother. The court's analysis of the defendant's statements cannot be reduced
to guessing about the meaning of a defendant's words or the defendant's
intentions. If either of those options become the case then the accusatory
instruments lack the essential element of P.L. 240.30(1)(a), that is `of a
threat to cause physical harm’.
People v. Grammatico,
supra.
The Judge went on to point out that
[t]his by no means discounts the
actions of the defendant, if true, as being alarming and/or annoying.
Interestingly, in People v. Orr, Judge Statsinger having
granted the defendant's motion to dismiss the charge of aggravated harassment
in the second degree, Penal Law § 240.30(1)(a), denied the defendant's motion
to dismiss the charge of harassment in the second degree, pursuant to PL § 240.26(3)
involving the same alleged statements of that defendant. Therefore, even if
statements do not amount to a threat they can constitute the violation of
harassment in the second degree.
People v. Grammatico,
supra.
He concludes the opinion with the following observations:
The statements alleged to have been
made by the defendant as set out in the information herein do not constitute a
true threat as that term has been interpreted by the courts of this state. In
that regard the statements allegedly made by the defendant herein were unclear
and ambiguous. Nor was there any immediacy suggested by the language of the
defendant. Thus the motion of defense counsel requesting the dismissal of the
information herein is hereby granted pursuant to [New York Criminal Procedure
Law] §§ 100.15(3), 100.40(1)(c), 170.30(1)(a) and 170.35(1)(a).
This constitutes the decision and order of the court.
People v. Grammatico,
supra.
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