[969 N.Y.S.2d 775] Charles J. Hynes, District Attorney (Chow Xie, Esq., of counsel), for the People.
Steven Hubert, Esq., Legal Advisor for Defendant.
MICHAEL J. GERSTEIN, J.
" All the world's a stage, And all the men and women merely
players," William Shakespeare famously wrote in As You Like It. The " stage" for this case is the world of what was formerly downtown Manhattan performing artists, now largely relocated to Brooklyn, particularly Williamsburg and the surrounding neighborhoods. The " players" in our case consist of the two " stars", complainant Harry Stuckey and Defendant Christopher Brodeur and a number of supporting players, [969 N.Y.S.2d 776] all involved in the performing arts scene as musicians, poets, filmmakers and the like.
The case centers around a large loft space at 99 Richardson Street, in Williamsburg, which Stuckey, Defendant, and other performing artists were interested in obtaining to use as a venue for their artistic work, living and storage space, events and parties. After months of searching, Defendant finally located the space, and raised $12,000 for the initial rent and security required by the landlord. However, Defendant lacked sufficient financial resources to satisfy the landlord, so Defendant ultimately turned to Stuckey, who agreed to take the lease in the name of a corporation, V. Media Inc., of which he was President. As set forth below, Stuckey and Defendant soon had a falling out, leading to the charges herein.
The superceding Information sets forth one count each of three different charges, occurring between approximately January 11-February 19, 2009. Defendant is charged with Attempted Aggravated Harassment in the Second Degree (PL § 110/240.30(1)(a)), and Stalking in the Fourth Degree (PL § 120.45(3)), both Class B misdemeanors, and Harassment in the Second Degree (PL § 240.26(2)), a violation. The factual allegations set forth in the Information are that " Defendant did repeatedly verbally threaten to kill [Stuckey], ruin [his] business and [his] life," and that Defendant " did place a poster on [Stuckey's] front door that contained [Stuckey's] name, a hand drawn picture of [Stuckey] and false accusations about [Stuckey] being a thief, a drug dealer and a child molester."
The evidence in this case raises multiple issues, most importantly the juxtaposition of the statutes at issue with the First Amendment to the United States Constitution and the right of Defendant to free speech. The First Amendment of the United States Constitution forbids the silencing of speech merely because it is objectionable or offensive to the listener. Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Only " well-defined and narrowly limited classes ... including the lewd and
obscene, the profane, the libelous, and the insulting or fighting words which by their very utterance inflict injury or tend to incite an immediate breach of the peace" may properly be proscribed. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
With regard to Penal Law § 240.30(1), the line between constitutionally protected speech and prohibited actions is less than bright, and has proven problematic in application. That statute has been held unconstitutional by at least one federal court, United States v. Vives, 305 F.Supp. 289 (S.D.N.Y.2004), reversed on other grounds, 405 F.3d 115 (2d Cir.2004), with one Judge dissenting and agreeing with the District Court that the statute was unconstitutional. Our New York State courts have found the statute constitutional, but have interpreted it narrowly, to apply only " where substantial privacy interests are being invaded in an essentially intolerable manner," People v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d 968 (App. Term 2d Dept. 1977), and only by " true threats," sometimes referred to as those which are " clear, unambiguous and immediate." People v. Yablov, 183 Misc.2d 880, 706 N.Y.S.2d 591 (Crim. Ct. N.Y. Co.2000). As the Court of Appeals reiterated in People v. Dietze, 75 N.Y.2d 47, 549 N.E.2d 1166, 550 N.Y.S.2d 595 (1989), speech alone may neither be forbidden nor penalized " unless [it] presents a clear and present danger of some serious substantive evil."
While a threat must be sufficiently clear, unambiguous, and immediate, see e.g. [969 N.Y.S.2d 777] Yablov, 183 Misc.2d 880, 706 N.Y.S.2d 591 (complaint alleging that defendant left angry messages on her ex-boyfriend's answering machine, including the statement " we'll get you," and called him 22 times in a period of 12 hours was insufficient to establish Harassment or Aggravated Harassment where the defendant made no specific threat), and People v. Limage, 19 Misc.3d 395, 851 N.Y.S.2d 852 (Crim. Ct. Kings Co.2008) (complaint alleging that defendant sent six threatening text messages to complainant's phone in less than 17 hours stating that he was outside of her residence and that she would end up in the hospital facially sufficient), a physical threat is not an element. See People v. Little, 14 Misc.3d 70, 830 N.Y.S.2d 428 (App. Term 2d Dept.2006).
" A genuine threat is one that is serious, should reasonably have been taken to be serious, or was confirmed by other words or conduct." People v. Hernandez, 7 Misc.3d 857, 860, 795 N.Y.S.2d 862, citing People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 . " True threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an
unlawful act of violence to a particular individual or group of individuals." People v. Olivio, 6 Misc.3d 1034 (A), *2, 2005 WL 551856 (Crim. Ct. N.Y. Co.2005), quoting Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The evidence must be show that, " an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury,' whether or not the defendant subjectively intended the communication to convey a true threat." People v. Mitchell, 24 Misc.3d 1249(A), 899 N.Y.S.2d 62 (Table) (Sup.Ct. Bronx Co.2009), citing People v. Olivio, 6 Misc.3d 1034(A), 2005 WL 551856, and United States v. Francis, 164 F.3d 120, 123 (2d Cir.1999).
It is perhaps easier to determine what language does not meet this standard for P.L. § 240.30(1) than that which qualifies as a crime. For example, it is not likely that a baseball fan who tweets " kill the umpire" following a perceived missed call, or a parent on the way home who calls his or her teenage child and tells them that they will be killed if their room is not clean by the time the parent arrives, would be found guilty under the statute, even though the speaker's words, taken at face value, would constitute an immediate threat which the listener might deem annoying and alarming, and, at least for the teenager, an intolerable invasion of substantial privacy interests. Neither the umpire nor the teenager is likely to suffer any physical harm, even if the umpire's calls do not improve and the teen's room remains messy.
Our jurisprudence therefore has found many statements to not be violative of the statute, as not constituting the required " true threat." See, e.g., People v. Goris, 39 Misc.3d 1217(A), 2013 WL 1762201 (Crim. Ct. Kings Co., Apr. 11, 2013); People v. Thompson, 28 Misc.3d 483, 496, 905 N.Y.S.2d 449 (Crim. Ct. Kings Co. May 12, 2010); People v. Khaimov, 26 Misc.3d 1202(A), 906 N.Y.S.2d 782 (Crim. Ct. Kings Co. Nov. 2, 2009); People v. Behlin, 21 Misc.3d 338, 863 N.Y.S.2d 362 (Crim. Ct. Kings Co.2008); People v. Bonitto, 4 Misc.3d 386, 777 N.Y.S.2d 900 (Crim. Ct. N.Y. Co.2004).
While only a single count of each of the three charges is alleged, the Court will analyze separately the verbal threats and the poster referred to in the Information. Significantly, the facts as to both are virtually undisputed, although Defendant denies that either qualifies as a crime. Defendant freely admitted during his testimony that he stated on several [969 ...