DECISION AFTER TRIAL Abench trial was held in this proceeding charging the defendant with 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.” At trial the complainant, Jashima Eldridge, testified that she resides on the first floor of a 3-family dwelling. Defendant resides in the same building, but in another unit on the second floor. On September 24, 2020, Ms. Eldridge parked her car across the street from the building (approximately 30 feet from the entrance door). As complainant was walking across the street, using crutches because of a broken foot, she observed the defendant driving. She testified that the defendant stopped the car in the middle of the street and started yelling that she wanted to fight the complainant. Ms. Eldridge stated that they exchanged words. During the argument, defendant got out of her car, approached Ms. Eldridge, and repeatedly stated, inter alia, “I want to fight, we can do this right now”, “I can go to jail”. She testified that the defendant also threatened to break her other foot. Ms. Eldridge stated that she was fearful because she had a broken foot, had to utilize crutches, and could not defend herself. She testified that defendant’s teenage children and defendant’s son’s girlfriend surrounded her in the street and made threatening statements including defendant saying: “You and your children will be shot and found dead somewhere”. However, she managed to get away from them and went inside and called the police. There was no physical contact between the complainant and defendant. Defendant testified that she has been residing at the subject premises for three years. She stated that four months after moving in, the problems started between her and Ms. Eldridge. They would get into disputes about defendant’s children. She testified that on September 23, 2020, the day before the alleged incident, she was informed that the complainant had approached her children. The next day, she observed Ms. Eldridge while she was driving. Defendant testified that while still inside of her vehicle, she stated “we can handle it right here” to the complainant, and that they were both grown women and should handle it between them. Defendant then got out of her vehicle and approached the complainant. She testified that she never threatened the complainant and that her children never approached the complainant. Defendant maintains that Ms. Eldridge has called the police on her 30 times and just wants to see her locked up. She further testified that she did not observe Ms. Eldridge on crutches the day of their confrontation. In this case, the defendant is charged with harassment in the second degree for allegedly making verbal threats of physical contact. There was no testimony that any improper or attempted physical contact of any kind was committed by the defendant. “The crux of section P.L. §240.26(1) is the element of physical contact: actual, attempted or threatened” (People v. Bartkow, 96 NY2d 770, 772 (2001)). New York case law holds that “While genuine threats of physical harm fall within the scope of the statute, an outburst without more, does not violate the statute” (People v. Marom, 63 Misc 3d 145(A) (citing People v. Dietze, 75 NY2d 47, 53-54 [1989]; People v. Todaro, 26 NY2d 325, 330 [1970]; People v. Ruggerio, 4 Misc 3d 133 [A] [App Term, 2d Dept.. 9th & 10th Jud Dist 2004]). Here, the defendant and the complaining witness have had a quarrelsome relationship for several years, which came to a boiling point on September 24, 2020. The defendant argues that the testimony taken at face value demonstrates that the People failed to meet its burden of proof beyond a reasonable doubt because no proof was offered other than word of mouth, and that does not establish a clear and immediate threat under People v. Dietze, 75 NY2d 47. The People argue that the defendant did not only engage in verbal threats but in other conduct including the defendant and her family members surrounding the complainant and blocking her path to the entrance door of her building while the complainant was temporarily disabled with a broken foot. Also, the defendant’s body language in approaching the complainant caused her to fear contacting Covid-19 because the defendant and her family members were not wearing masks. According to the People, the combination of defendant’s verbal statements and attendant circumstances created an immediate threat to the complaining witness. The dispute involves threatening statements and conduct allegedly engaged in by the defendant. The complaining witness testified that defendant pulled up in her car, got out and approached her saying “I want to fight, we can do this right now”, “I can go to jail”, “I’ll break your other leg”. At the outset, the court finds the statement “I can go to jail” is vague, ambiguous and is not a threat at all. In order to sustain a charge of harassment in the second degree, the defendant’s statement and conduct must convey a threat of immediate physical violence that incites fear and alarm in the complainant. In Dietze, the Court of Appeals found that defendant’s threats to “beat the crap out of the [complainant] some day or night in the street”, without more, were insufficient to support the charge of harassment in the second degree. Similarly, defendant’s words that “I want to fight, we can do this right now”, “I’ll break your other leg”, standing alone, are insufficient to sustain the charge of harassment in the second degree under P.L. §240.26(1). Had this been the extent of it, the alleged remarks made by the defendant would be nothing more than spontaneous crude outbursts (see People v. Dietze, 75 NY2d 47; People v. Todaro, 26 NY2d 325). However, the defendant did not only make the alleged statements. The court heard credible testimony from the complainant that the defendant, her teenage children and defendant’s son’s girlfriend surrounded complainant in the street blocking her pathway to the entrance door of her building while defendant repeatedly made statements about wanting to fight, and further stated “you and your children will be shot and found dead somewhere”. On cross examination, complainant testified of being afraid of defendant’s threat because defendant’s boyfriend pulled a gun on her in the past. She also testified that while being surrounded by the defendant and family members, defendant’s son girlfriend said, “we will F…you up”, while defendant continually stated, “let’s fight…” and this was all occurring while the complainant was on crutches. While defendant’s words alone may not have created a true threat, the court finds that those words coupled with the overt actions of surrounding the complainant in the street were sufficient to establish a genuine threat of immediate physical harm. The facts in this case are distinguishable from Dietze, as the defendant’s statements in that case were not accompanied by overt actions, while in this case they are. Also, the statement in Dietze, defendant threatened to beat the complainant in the future e.g. “some day or night on the street”, rather than the immediate threat of harm in this case. See People v. Vega, 95 AD3d 773; 945 NYS2d 288 (1st Dept. 2012). In People v. Marom, 63 Misc 3d 145 (A), Appellate Term, Second Department held that a defendant’s statement “I will kill you” is nothing more than a crude outburst and insufficient to support the harassment charge. There was no additional proof evidencing a clear and present danger as required by People v. Dietze, 75 NY2d at 51. While the defendant’s alleged statement that “You and your children will be shot and found dead somewhere” appears to fall within this category of a crude outburst, the court finds that the attendant circumstances of being surrounded by defendant and others who appear willing to engage in violence on behalf of defendant, as well as the complainant’s uncontroverted testimony that defendant’s boyfriend pulled a gun on her in the past are sufficient additional evidence to establish an immediate and genuine threat that incited fear and alarm in the complainant. People v. Dietze, 75 NY2d 47; People v. Urias, 20 Misc.3d 134(A), 867 NYS 2d 19 [App. Term 2nd Dept. 2008]. Based upon the credible evidence, the Court finds that the People have proven defendant guilty of harassment in the second degree in violation of P.L. §240.26(1) beyond a reasonable doubt. Dated: November 8, 2021
