DECISION AFTER TRIAL Abench trial was held in this proceeding charging the defendant with one count of harassment in the second degree pursuant to P.L. 240.26(1). “A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks, or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.” Defendant is charged with the above for allegedly getting into a physical altercation with Ann-Marie Whelan. The People allege that on February 26, 2020 at 6:45pm at 23 West Grand Street in Mount Vernon, NY, defendant pushed then slapped Ms. Whalen in the face with her hand. At trial, the People presented the testimony of the complainant Anne-Marie Whalen, Jasmine Denully and Mount Vernon Police Officer Mohammed Chandoo. The defendant testified on her own behalf. Complainant Ann-Marie Whalen’s Testimony Ms. Whalen testified that on February 26, 2020 she was at the subject location, a nail salon, getting a pedicure. While sitting in the pedicure chair she observed a young lady walk in with a young girl. She identified the young lady as the defendant. She testified that the defendant asked for a pedicure. The owner then directed defendant to the pedicure chair next to her and advised her that she would have to wait a little while before she could get serviced.. Ms. Whalen testified that she observed the nail technician put water in the basin for defendant to soak her feet. Ms.Whalen testified that the defendant kept complaining that the water was not hot enough despite being adjusted several times by the nail technician. Ms. Whalen stated that defendant became irate and started yelling in the salon when the nail technician advised her she needed to continue to wait. Ms. Whalen testified that defendant demanded a towel to dry her feet because she wanted to leave. When the technician did not respond quick enough defendant flung the towel and two massage stones went flying from the towel. Ms. Whalen testified that defendant then got up and appeared to be heading towards the door to leave. She stated that the defendant did not immediately leave but stayed in the salon and continued to curse and make a scene. Ms. Whalen stated that the owner told the defendant to leave and the defendant got irate. Ms. Whalen testified that she then observed the defendant swipe her hand over a store display, causing the items to fall to the floor. Ms. Whalen stated that at this point she called 911. Ms. W halen testified that she called 911 because the defendant would not leave the store. She also testified that the defendant called them racist bitches. Ms. Whalen stated that the police did not quickly respond to the scene. When the defendant did leave the store another customer followed defendant to get a picture of the car she was driving. Ms. Whalen testified that at this point she put her boots on and went outside. Ms. Whalen testified that she followed the defendant outside because she wanted to take a picture of the defendant’s license plate for the salon owner to give to the police because the defendant had damaged the salon owner’s property. She stated that she wanted to get a picture of the defendant sitting behind the wheel of the car and a close up picture of the Department of Sanitation plaque in the window. Ms. Whalen testified that she was on the sidewalk while attempting to take the photos. She stated that at this time the defendant was either in her car or getting in her. Ms. Whalen testified that the defendant then stopped getting into her car and walked around and stated “bitch get your phone out of my face.” Ms. Whalen stated that she responded that her phone was no where near her face. She testified that the defendant then walked towards her and stated get out of my face and grabbed her phone. She stated that defendant told her she had two seconds before she was going to throw the phone to the ground. Ms. Whalen said she told defendant to go ahead and throw it. Ms. Whalen testified that she reached for her phone with her right hand. However, defendant threw the phone anyway, pushed her and slapped her in the face. Ms. Whalen testified that she was able to retrieve her phone after the defendant threw it. She stated that she then took a video. Also, someone at the scene, not a police officer, took a photo of her face at the scene using her cell phone. She also testified that she took a photo in her bathroom the morning after the incident of a bruise on her shoulder/chest area where the defendant pushed her. On cross-examination, Ms. Whalen testified that she had been a regular patron of the nail salon and had a friendly relationship with the owner, Ms. Kim. She acknowledged that the incident that occurred with the defendant and the nail technician did not involve her and that the defendant appeared upset about the quality of service she had received. Ms. Whalen testified that she followed the defendant outside so she could take a picture of the defendant’s face, the vehicle license plate and the plaque in the window of the vehicle. She stated that defendant’s vehicle was in front of the business next door to the nail salon, about twelve feet away from her. She testified that even though it was 6:45pm, she was able to record the defendant from the sidewalk. Ms. Whalen testified that while she was standing on the sidewalk, and defendant was at her vehicle, defendant said to her “bitch get your phone out of my face.” Ms. Whalen testified that she continued to stay on the sidewalk after she took the photographs of the defendant because the defendant did not leave, and she did not want to be confined in a closed area with her. Ms. Whalen testified that she observed the defendant leave and then return to the scene shortly thereafter. She stated that she saw the defendant speaking with police officers that had arrived on the scene. Ms. Whalen refused medical treatment. She testified that she was a little shaken up about the incident but remained calm. Ms. Whalen acknowledged that she advised the police officers that she was an attorney and discussed potential charges for the defendant. She also testified that she text her fiancé while on the scene about an incident at the salon. She told him that she was okay but got slapped. Ms. Whalen testified that she is about 5′ 6′ or 5′ 7″ tall and a larger woman in height and weight than the defendant. Jasmine Denully The People’s other witness testified that she was at the nail salon getting a manicure and pedicure. Ms. Denully testified that she had been a regular patron of the nail salon and had a friendly business relationship with the owner, Ms. Theresa Kim. While getting a manicure, she observed a young lady walk in with a little girl. The witness identified the young lady as the defendant. She testified that she heard the defendant say she wanted a pedicure and saw the owner of the nail salon instruct her to sit in the pedicure chair. Ms. Denully testified that she observed the defendant putting her feet in the water and heard her say something about the water temperature. She testified that she observed the owner go over and adjust the water. She also heard the request for a towel and saw the owner get up and place a new dry towel at the defendant’s feet. The witness saw defendant and Ms. Kim arguing. The witness testified that she then saw the defendant get up and place the pedicure rocks in a towel. She stated that the defendant threw them towards the owner. Ms Denully then observed the defendant and the little girl walking towards the door to exit. She testified that on her way out, defendant knocked the candy dish and window display to the floor. Ms. Denully testified that upon observing this she felt compelled to go outside and ascertain the defendant’s identification. She stated the other customer also followed the defendant out of the store. The witness testified that she called 911. She then observed the defendant and her niece get into a white car. She further testified that the other client was videotaping the defendant’s license plate from the sidewalk. Ms. Denully stated that the defendant then got out of her vehicle and started “F-bombing” saying “don’t fucking take my video”, “who the F do you think you are”, “you fucking racist. They’re ganging up on me, they’re all out here. They threw stuff at me. They’re not taking care of me.” The witness testified that the defendant then slapped the other client across the face and knocked the client’s phone out of her hand. The witness maintains that the other client did not make eye contact or engage with the defendant but was merely taking a video of the license plate. The witness testified that she called 911 for a third time. Police Officer Mohammed Chandoo’s Testimony Officer Chandoo testified that he has been a member of the Mount Vernon Police Department for two and a half years. His general duties include patrolling and responding to calls. On February 26, 2020 at 6:45pm he received a call from dispatch to respond to 23 West Grand Street in Mount Vernon. He responded to the scene w ith his partner, Officer Santos as back up to officers already on the scene. Officer Chandoo testified that upon arriving on the scene he observed “two victims” that appeared to be upset, flustered and angry. He also stated that the defendant was flustered, angry and yelling. Officer Chandoo testified that he spoke with Ms. Denully. He stated that she appeared to be a little upset, was talking fast and was adamant about having the defendant arrested for assault. During their conversation Ms. Denully informed the officer that Detective Bennett was a friend of hers. He also stated that he observed Ms. Whalen speaking with another officer, Officer Debenedictis. He stated that Ms. Whalen showed them some redness around her neck area, said she was in pain but refused medical treatment. The officer testified that he was on the scene about an hour and much of the time he was outside with the defendant and defendant’s niece and sister-in-law. He stated that the defendant told him she had gotten into an argument with the people inside the store and that she messed up some of their decorations near the front window. He further testified that the defendant informed him that she got into a confrontation with one of the victims about taking her phone. The officer testified that after he spoke with the defendant, he observed the sergeant arrive. He stated that the sergeant went inside the nail salon and spoke with Ms. Whalen and Ms. Denully. Then the sergeant came out and asked the defendant about her niece and the vehicle. The officer stated that the sergeant did not ask the defendant anything else about what had occurred. Defendant was placed under arrest. Defendant’s Testimony Defendant testified that on February 26, 2020 she went to the Kim Salon in Mount Vernon to get a pedicure. She testified that she got to the salon around 6:25pm, five minutes before the salon takes their last customer. She had her seven-year-old niece with her. Defendant stated that the salon worker seemed to have an attitude when she asked for a pedicure, but nevertheless told her she would take her as a client. Defendant testified that she was directed to the back to a pedicure chair and sat next to the complainant, Ms. Whalen. She testified that her feet were soaking in the water for ten minutes. The water temperature was initially fine but then turned cold the longer she sat there. Defendant stated that her niece was getting bored and she asked if she could turn on the massage chair. They denied her request. She asked them to warm the water back up. The owner obliged. Defendant testified the water got cold again because at this point, she was in the salon for twenty-five minutes. Defendant testified that she told the owner that she had no problem with leaving and asked for a napkin to dry her feet. Defendant testified that the owner told her she did not make an appointment and you keep asking for things and to get out. The owner told her she was working on a client. The client she was referring to was Ms. Whalen, sitting directly next to her. Defendant stated that the owner repeated for her to get out and did not give her anything to dry off her feet. At this point, defendant asked her niece to hand her the dry napkin that was at the edge of her seat. Defendant testified that in the midst of her niece handing her the napkin, the owner snatched the napkin out of her niece’s hand and threw it in the defendant’s face. Defendant testified that at this point she was very upset. She put her shoes on and escorted her niece out of the nail salon and put her in the car. Defendant went back to the salon to voice her concern and frustration. She stated that she told that them they were very racist, directing her frustration to the owner. She told her that they were disrespectful on the way they treated her while she was with her young niece. Defendant testified that she did not have any issues with the customers in the store, including Ms. Whalen and Ms. Denully. Defendant stated she knocked over a candy dish when leaving the salon. She stated that she called her sister-in-law to come get her niece. While waiting outside sitting in her car with her niece, she observed the occupants from the nail salon come outside. She testified that the owner of the salon took pictures first. Then Ms. Whalen came out and started taking pictures of her license plate. Defendant testified that she was not parked in front of the nail salon but parked two to three cars away from the front of the salon. Defendant stated that the owner went back inside after taking the pictures. However, Ms. Whalen approached the passenger side of her vehicle. Defendant testified that she was on the driver’s side and her niece was seated in the back on the passenger side. She then observed Ms. Whalen come to the front of the car with her camera raised up. Defendant testified that at this time she felt like Ms. Whalen was harassing her and her niece. Defendant exited the vehicle and told Ms. Whalen to get away from her car. Defendant testified that at this time Ms. Whalen was on the passenger side of her vehicle, the same side as her niece. Defendant then takes out her phone and begins to record Ms. Whalen. They are arguing with one another. As they get closer to one another, defendant puts her phone back in her pocket. She stated that when she put her phone away Ms. Whalen got closer to her, within about six inches and defendant warned her to back up out of her face. They continued arguing and got face to face. Defendant stated that she felt Ms. Whalen was threatening her. Ms. Whalen continued to record defendant. Defendant snatched the phone out of Ms. Whalen’s hand. Defendant stated that Ms. Whalen then grabbed her by the collar of her jacket. Defendant then slapped Ms. Whalen. She stated that Ms. Whalen continued to hold her by her jacket. Defendant told Ms. Whalen that if she did not release her, she would throw the phone. They continued to argue. Defendant testified that she threw the phone and Ms. Whalen released her. Defendant testified that the other occupants of the nail salon came out. Defendant left the scene but then returned because she remembered they had called the cops while she was inside. She testified that she basically circled the block and came back to the scene and waited for the cops so she could tell her side of the story. Issue Presented Did the People establish, beyond reasonable doubt, that the defendant intended to harass, annoy or alarm the complainant herein? Were the actions of the defendant sufficient to sustain a conviction for Harassment in the Second Degree? Conclusions of Law The key to establishing a violation of harassment in the second degree is evidentiary facts which support or tend to support an intent by the defendant to annoy, harass or alarm the victim (People v. Malusky, 127 Misc 2d 84 [City Ct. Rochester 1985]). The statute does not require the People to prove the state of mind of the complainant, but rather whether a reasonable person would believe that the defendant had an intent to harass, annoy or alarm when she engaged in the course of conduct complained of (People v. Jones, 54 Misc. 3d 1214 (A) (City Ct. Gloversville 2017]; see People v. Concannon, 28 NY2d 854 [1971]; People v. Jemzura, 29 NY2d 590 [1971]. Mens rea can be inferred from the act itself or from the defendant’s conduct and the surrounding circumstances (People v. Caulkins, 82 AD 3d 1506 [3d Dept. 2011]) “Even in instances where there is proof of physical contact between the complainant and the defendant, more is required.” (People v. Jones, 54 Misc 3d 1214 (A)). For instance, in People v. Caulkins, 82 AD3d 1506 [3d Dept. 2011], the Appellate Division overturned a Harassment in the Second-Degree conviction finding that the defendant did not intend to harass the mother of his child during an argument. In that case, the complainant, Ms. Smith testified that when she saw the father of her son/defendant walking on the other side of the street, she crossed the street and approached him. They started to argue about their son. According to the complainant, defendant then shoved her left shoulder with an open hand and said “this [is] done”. The Appellate Division held that the defendant’s physical contact was insufficient to support the harassment charge given the surrounding circumstances. There are a string of other cases that support the finding that behavior which is spontaneous or initiated by something other than the intent to harass, annoy or alarm will not sustain a charge for Harassment in the Second Degree. In People v. Jones, 54 Misc 3d 1214 (A), the Gloversville City Court found that a suspect’s action in lifting his arm and jerking away from a police officer after the officer touched his arm was a “fleeting, innocuous, and a spontaneous reaction to unwanted physical contact, not indicative of any intent to harass, annoy or alarm.” (See also People v. Schmidt, 76 Misc 2d 976 (harassment conviction overturned in favor of defendant who engaged in a physical confrontation with police which included pushing and shoving). In People v. Starci, 174 Misc 2d 926 [Justice Ct. Sleepy Hollow 1997], the justice court found that there was no intent to support a harassment charge where the defendant’s action in grabbing the wrist of a subordinate employee and leading her to another room in the course of an argument was merely spontaneous and motivated by a desire to preserve office decorum. In People v. Curtis, 12 Misc 3d 1156 (A) [Justice Ct. Town of Webster 2006], the court dismissed the harassment charge upon a finding that the defendant did not intend to harass, annoy or alarm the complainant. In Curtis, the complainant-mother and defendant-father engaged in a verbal dispute in a parking lot after attending their son’s hockey game. The father insisted that it was his weekend to take the son to his home and the mother insisted the defendant had forfeited his visitation rights for that weekend. Defendant escorted his son away from the complainant’s car, towards his car. The complainant followed them. According to the testimony, the defendant pushed the complainant away a few times and the complainant fell to the ground as defendant was trying to get in the car with his son. The defendant testified that the complainant pushed him, flailed at him with her arms and shouted at the defendant “hit me, hit me” and “you’re not taking him”. Defendant testified that he and the complainant were shoving each other. In finding the defendant not guilty of the harassment charge, the justice court held: [I]t would appear that the actions of both the defendant and the complainant were made in a misguided intention of physically enforcing what each believed to be their court ordered visitation rights. The evidence is not legally sufficient for a trier of fact to believe that the defendant intended any of his behavior to harass, annoy or alarm the complainant within the meaning of offense charged. Instead his actions appeared to be in reaction to those of the complainant. (People v. Curtis, 12 Misc 3d 1156 (A) (emphasis added). Having weighed the relative probative force of the conflicting testimony1, the Court finds that the People failed to prove beyond a reasonable doubt that the defendant acted with the requisite intent when she engaged in a physical confrontation with the complainant. Both of the prosecution’s witnesses testified that the defendant was clearly visibly upset with the services she received when she exited the nail salon with her young niece. She was yelling and knocked over a candy dish display in frustration. She believed she had been the victim of a racist encounter with the store owner. Both Ms. Whalen and Ms. Denully, believing that they were acting as good citizens, followed the defendant, her niece and the owner out of nail salon. They did what has become common place in today’s society whenever a public dispute occurs — pull out a cell phone and start recording or taking pictures. The credible testimony established that Ms. Denully stayed on the sidewalk leaning against the store window and tried to take a picture of the defendant’s license plate from a distance before placing a second or third call to 911. However, Ms. Whalen continued to get closer to the defendant’s car, approaching defendant’s passenger side, where her young niece was seated. Ms. Whalen testified that she wanted to get a close up shot of their faces and the sanitation plaque in the front window of defendant’s vehicle2. Defendant testified that she had no problem with the witnesses and owner taking pictures of her license plate but got more agitated as she saw Ms. Whalen, who had nothing to do with her dispute with the owner, getting closer to her car filming her and her niece. This prompted the defendant confront Ms. Whalen about the videos she was taking. A struggle ensued for Ms. Whalen’s phone during which time the defendant testified that Ms. Whalen grabbed her by the collar of her jacket. Defendant slapped Ms. Whalen and threw her phone. Ms. Whalen then released the defendant. The Court finds that the incidental physical contact that occurred during this rapidly escalating dispute was not intended by the defendant to harass, annoy or alarm the complainant. Instead it would appear that the actions of both the defendant and complainant were made with the intention of enforcing what each believed to be their right, Ms. Whalen to record in public and the defendant to protect her niece and prevent Ms. Whalen from recording them. The Court finds that defendant’s actions were spontaneous actions and in reaction to Ms. Whalen’s actions (see People v. Curtis, 12 Misc 3d 1156(A). For these reasons, the Court finds the defendant not guilty as the People failed to prove beyond a reasonable doubt that the defendant intended to harass, annoy and alarm Ms. Whalen. This constitutes the Decision and Order of this Court. Dated: November 13, 2020
