DECISION AND ORDERDefendant is charged by information with one count of resisting arrest (Penal Law §205.30), one count of disorderly conduct (Penal Law §240.20[1]) and one count of harassment in the second degree (Penal Law §240.26[1]). Defendant moves to dismiss the accusatory instrument as facially insufficient on the ground that there was no “true threat” as required. Defendant also seeks other forms of relief. The People disagree.For the reasons set forth below, defendant’s motion to dismiss the information for facial insufficiency is granted. The Court also grants the People leave to supersede, if they so choose.The misdemeanor information alleges that on or about March 19, 2018 at about 12:00 a.m., inside 1995 Amsterdam Avenue in the County and State of New York:I [Police Officer Sacko Hadzovic] was informed by Ali Alahim, that the defendant stated in substance to Mr. Alahim “I’m going to fuck you up.”When I attempted to place the defendant under arrest for the above described conduct, I observed the defendant push Police Officer Orlando Fontanez…and the defendant flailed his arms, attempted to twist away from me, refused to put his hands behind his back, and pulled his arms out of my grasp.Under Penal Law §205.30, a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer…from effecting an authorized arrest of himself, or another person. The Court finds the allegations are insufficient to establish this charge as the arrest was not authorized as detailed below. Accordingly, defendant’s motion to dismiss the charge of resisting arrest is granted.Under Penal Law §240.20[1], a person is guilty of disorderly conduct when, “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he engages in fighting or in violent, tumultuous or threatening behavior.In determining whether an act has the requisite public ramifications, relevant factors include the time and place of the episode, the nature and character of the conduct, the number of other people in the vicinity, whether they are drawn to the disturbance and, if so, the nature and number of those attracted, and any other relevant circumstances. (See, People v. Weaver, 16 NY3d 123, 128 [2011] citing People v. Munafo, 50 NY2d 326, 331 [1980]); People v. Pritchard, 27 NY2d 246, 248-249 [1970]). “The risk of public disorder does not have to be realized but the circumstances must be such that defendant’s intent to create such a threat (or reckless disregard thereof) can be readily inferred.” (People v. Baker, 20 NY3d 354, 360 [2013] citing People v. Weaver, supra.).The facts as alleged do not satisfy these requirements in several respects. The allegation that defendant was inside 1995 Amsterdam Avenue at 12:00 a.m. does not support the requisite public dimension. There is no mention of crowds forming or defendant’s intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof. Accordingly, defendant’s motion to dismiss the charge of disorderly conduct is granted.A person is guilty of harassment in the second degree (Penal Law §240.26[1]) “when, with intent to harass, annoy or alarm another person: He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.”Defendant argues that the complaint is facially insufficient because the language used does not constitute a “true threat” to cause specific physical harm to the complainant. The People respond to this argument with only one sentence alleging that the statement was a clear, forceful, and directed threat to do bodily harm, and thus constituting harassment, and giving officers probable cause to make an arrest. [People's response p 2]“A ‘threat’ is a ‘communicated intent to inflict harm or loss on another or on another’s property, and that a threat is a ‘true threat when an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury.’” People v. Williams, 46 Misc3d 1208[A](Crim Ct, NY County 2015).“More generally, to constitute a ‘true threat,’ a remark must contain a threat that is ‘clear, unambiguous, and immediate’…[and] [w]here the language at issue ‘is incapable of constituting a true threat, as a matter of law, the complaint should be dismissed’ (internal citations omitted).” People v. Orr, 47 Misc3d 1213[A] [Crim Ct, NY County 2015]; People v. Spruill, 49 Misc3d 1202[A][Crim Ct, NY County 2015]. “[I]t is well established that prohibitions of pure speech must be limited to communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct (internal citations omitted)” People v. Marquan M., 24 NY3d 1,7 [2014]. In making such a determination “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence” People v. Golb, 23 NY3d 455, 467 (2014).The Court finds, applying these standards, that defendant’s alleged statement does not constitute a “true threat.” It is clear that defendant’s communication with the complainant was unwanted — he did, after all, report it to the police — and alarming to him. See, People v. Orr, supra. It is not, however, a true threat. The contents of the statement “I’m going to fuck you up” is subject to a variety of interpretations, is maybe offensive and insulting but it is not a “true threat” of an “act of unlawful violence.” See People v. Spruill, supra; People v. Orr, supra. It is close to the phrase “watch your step or something is going to happen to you” which was found not to be a true threat. People v. Khaimov, 26 Misc3d 1202[A][Crim Ct, NY County 2009].In light of the Court’s finding with respect to the statement, defendant’s motion to dismiss all counts for facial insufficiency is granted. The Court also grants the People leave to supersede.The foregoing constitutes the opinion, decision and order of the Court.Dated: January 17, 2019New York, New York
