Opinion
2003-1223 SCR.
Decided July 1, 2004.
Appeal by defendant from a judgment of the District Court, Suffolk County (H. Trotto, J.), rendered on August 1, 2003, convicting her of harassment in the second degree (Penal Law § 240.26) and imposing sentence.
Judgment of conviction unanimously reversed on the law and accusatory instrument dismissed.
PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Viewing the evidence in the light most favorable to the prosecution ( People v. Contes, 60 NY2d 620, we find it legally insufficient to establish defendant's guilt of harassment in the second degree beyond a reasonable doubt ( see People v. Dietze, 75 NY2d 47, 53-54; People v. Todaro, 26 NY2d 325). While genuine threats of physical harm fall within the scope of the statute, an outburst, without more, does not violate the statute ( see Dietze, 75 NY2d at 53-54; Todaro, 26 NY2d at 330; see also Watts v. United States, 394 US 705, 708). In the case at bar, defendant's speech did not present "a clear and present danger of some serious substantive evil" ( Dietze, 75 NY2d at 51) which might be forbidden or penalized. There was nothing to indicate that the statement complained of was anything more than just a crude outburst. In the absence of such proof, the evidence was insufficient to establish guilt beyond a reasonable doubt ( see Dietze, 75 NY2d 47; Todaro, 26 NY2d at 330).
We note that under the circumstances presented, the trial court's examination of the complainant was improper. For example, the evidence of other direct confrontations between defendant and 8 or 10 neighbors was irrelevant.