Judge John Wilson
Simmons was charged with harassment by a superceding information, and moved for dismissal arguing the complaint was facially insufficient. The complaint alleged Simmons spat in an officer’s face striking his eyes and mouth, resulting in the officer being alarmed and fearing for his personal safety. The court found the factual allegations contained in the misdemeanor complaint were sufficient. It stated, even putting aside complainant’s status as a police officer, spitting was recognized as an act sufficient to support a cause of action for battery, under early common law. A court in People v. Carlson previously found that spitting on a victim was “offensive physical contact.” This court found Simmons’ reliance of People v. Bartkow misplaced, agreeing, instead, with the Carlson court, that the legislature intended the language “or otherwise subjects another person to physical contact” to be a catchall phrase to include actions of this defendant as described in the instant complaint. It ruled as the act of spitting in another’s face was a form of physical contact, the broad language of Penal Law §240.26(1) naturally included such offensive conduct, and to hold otherwise would be a “denial of common sense and established principles.” Hence, dismissal was denied.
