Opinion
2017NY027164
10-11-2017
The People of the State of New York, Plaintiff, v. Platta Slawomir, Defendant.
Appearances of Counsel For the Defendant: Tacopina & Seigel, by Chad Seigel, Esq. For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Kathleen Coulson
Appearances of Counsel For the Defendant: Tacopina & Seigel, by Chad Seigel, Esq. For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Kathleen Coulson Steven M. Statsinger, J.
Defendant, charged with one count each of aggravated harassment in the second degree and harassment in the second degree, Penal Law §§ 240.30(1)(a), 240.26(1), moves to dismiss. Accused of warning the complainant that if she "[told] anyone about [his] cheating" he would "kill [her] and ruin [her] life," defendant argues that there was no "true threat" of violence. The motion to dismiss is DENIED. I. FACTUAL BACKGROUND A. The Allegations
The accusatory instrument alleges that, on April 13, 2017, defendant placed a telephone call to the complainant in which he said, in substance, "If you tell anyone about my cheating, I will kill you and your family and ruin your life; I will send a patient to your practice to make false reports against you and ruin your career." The complainant recognized the caller's telephone number and voice as belonging to the defendant. B. Legal Proceedings Defendant was arraigned on May 11, 2017, on a misdemeanor complainant charging him aggravated harassment in the second degree and harassment in the second degree. The Court released the defendant and adjourned the case for conversion.
On June 1, 2017, off-calendar, the People filed the complainant's Supporting Deposition and, on June 15, Court deemed the misdemeanor complaint converted to an information.
Defendant filed the instant motion on August 2, 2017, and the Court directed the People to respond by September 7. They declined to do so. The matter has been sub judice since the September 7. II. DISCUSSION
Defendant makes several distinct arguments in support of his claim that the information fails to allege a "true threat." The Court has considered and rejected each argument, and will address them, in turn, in Subsection B, below. A. Facial Sufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 ( 2014); People v Alejandro, 70 NY2d 133, 138-39 (1987) . Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29 (citing People v Henderson, 92 NY2d 677, 679 (1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12 NY3d at 229.
The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360.
Under these standards, the information is facially sufficient. B. The Information is Facially Sufficient
A "threat" is a "communicated intent to inflict harm or loss on another or on another's property." People v. Williams, 46 Misc 3d 1208(A) (Crim Ct NY County 2015), citations and internal quotation marks omitted. However, not every threat can be prosecuted as a crime. In order to comport with the First Amendment, "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." People v. Marquan M., 24 NY3d 1, 7 (2014). "True threats" encompass "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359 (2003).
There is no "true threat" when the communication either did not contain a threat of future violence at all, or the threatening language was not sufficiently specific. People v. Orr, 47 Misc 3d at 1213(A) (Crim Ct NY County 2015). Conversely courts always find a "true threat" in cases where the communication conveyed a clear and unambiguous message that the recipient could not help but understand as a threat of future violence. Id. (collecting cases).
Here, defendant actually begins his lengthy legal argument by conceding that a "cursory glance" at the accusatory instrument would indeed reveal that a "true threat" has been pled. Siegel Aff. ¶ 14. That concession is appropriate, since defendant is accused of threatening to kill the complainant if she revealed his infidelity. Defendant nevertheless urges the Court to disregard the obvious conclusion that this "cursory glance" would lead to and instead reach different conclusion. As detailed below, defendant's arguments are utterly without merit.
1. The Threat is not "Hyperbole and Exaggeration"
Relying on People v. Brodeur, 40 Misc 3d 1070 (Crim Ct Kings County 2013), defendant first characterizes his statement as mere "hyperbole and exaggeration," and therefore not a true threat. Siegel Aff. ¶ 14. But Brodeur hardly stands for the proposition that, on facial sufficiency review, a reviewing court should, or even can, determine that a death threat was merely an exaggeration.
There, the Court was reviewing the legal sufficiency of the trial evidence, not a pleading. It concluded, after hearing all of the evidence, including the testimony of the complainant, that the complainant himself did not take many of the defendant's threats seriously. Accordingly, the court acquitted the defendant of those counts that charged violations of statutes containing an element requiring proof of an effect on the victim, Penal Law §§ 120.45(1) ("a "course of conduct ... likely to cause reasonable fear of material harm to the physical health, safety or property of [the victim]"), and 240.26(3) (a "a course of conduct ... or acts which alarm or seriously annoy [the victim] and which serve no legitimate purpose").
But, significantly, even though the court agreed that the complainant did not take all of the defendant's threats seriously - that he did indeed view some of them as "hyperbole and exaggeration" - the court still convicted the defendant of essentially the same offense defendant is accused of here, an attempt to commit Penal Law § 240.30(1)(a). This is hardly surprising, since that statute, unlike the others addressed in Brodeur, does not require the People to prove an effect on the recipient of the threat. It requires only a threatening statement that the defendant knows or has cause to know will frighten the victim. § 240.30(1)(a). That element is satisfied by the pleading here. There is a reasonable inference that, when the defendant threatened to kill the complainant if she revealed his infidelity, he either knew or had cause to know that he would frighten her.
The same is true for Penal Law § 240.26(1), the other statute charged here. That section, like § 240.30(1)(a), only addresses to the intent of the defendant, and does not contain an element requiring proof of any particular effect on the victim. The allegation that the defendant threatened to kill the complainant makes out a prima facie case under this section, as well.
Accordingly, there is nothing in Brodeur - or any other case - that would cause this Court to conclude that the accusatory instrument should be dismissed because the defendant now asserts that, when he told the complainant he would kill her, he did not really mean it.
2. The Remainder of the Threat Does not Negate it.
Defendant's next argument is that the things that the defendant is alleged to have said to the complainant after threatening to kill her - in substance that he would "ruin" her life and her career - somehow negate the threat of violence. Seigel Aff. ¶ 15. The crux of this argument is that, in their totality, the defendant's statements show that he did not "communicate a serious expression of intent" to threaten the complainant. Id.
But this argument is simply not available on facial sufficiency review. At trial, defendant is free to argue to the finder of fact that he did not intend to convey an intent to threaten to kill this complainant, and can support this by pointing to the other threats that he made. If the finder of fact accepts this argument, and concludes that there is a reasonable doubt as to his intent, it might well acquit him. But there nevertheless remains a reasonable inference, based on the face of the pleading, that the defendant threatened to kill the complainant, and that he meant it when he said it.
3. That the Threat Was "Conditional" Does not Means that it Was not "True"
Defendant's third argument is that defendant's threat to kill this complainant was not a "true threat" because it was conditional - he told the complainant that he would kill the complainant only if she reported his infidelity. Seigel Aff. ¶¶ 16-17, 20. Defendant's argument that a "conditional" threat is not a "true threat" is incorrect.
Many "conditional" threats are indeed "true" threats. "While the use of the word 'conditional' in the true threat cases is sometimes misleading and imprecise, it is clear that the occurrence of an upcoming event before the threat can be fulfilled will not, by itself, prevent its prosecution. It is only when the words convey a threat so remote, preposterous or humanly impossible that they should be said, on their face, to be outside the potential realm of prosecution as true threats." People v. Prisinzano, 170 Misc 2d 525, 537 (Crim Ct NY County 1996). Accord Watts v. United States, 394 U.S. 705, 708 (1969) (defendant's remark that "if they ever make me carry a rifle the first man I want to get in my sights is L.B.J." was not a true threat, where the condition was a "purely hypothetical event, which defendant's words made clear would not actually occur"). In Prisinzano, an information that described what the defendant threatened he would do to the complainants "once the police leave" was facially sufficient. His words, "on their face, demonstrate[d] a serious threat to inflict physical injury on the complainants as soon as the police left the area." Id.
As the Second Circuit has observed, "of course, a conditional threat—e.g., 'your money or your life' - is nonetheless a threat." United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994). The test is objective, asking whether "an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret it as a threat of injury." Id. Even Brodeur, a case that the defendant relies on heavily, agrees that a conditional threat can still be a true threat: "[T]his Court similarly rejects Defendant's assertion that a conditional threat cannot violate the statute." 40 Misc 3d at 1076.
And this Court agrees as well. The conditional nature of the threat alleged in this case does not make the threat any less "true," as there remains a reasonable inference that this complainant would have seen a genuine threat of injury in defendant's threat to kill her if she revealed his infidelity.
4. The Court Cannot Examine Allegations Not Contained in the Information
Defendant's final two arguments are based on an analysis of what the defense asserts are Facebook communications between the complainant and the defendant from around the time of this offense.
First, according to the defense, those communications suggest that the defendant never actually threatened the complainant at all. Seigel Aff. ¶ 21-26. But, of course, this argument has nothing at all to do with facial sufficiency review, which is limited to the four corners of the accusatory instrument:
While the factors raised by the defense may ultimately convince a trier of fact that the defendant is not guilty of the charges currently pending against him, they are inappropriate for consideration on a facial sufficiency motion. In deciding a defense
motion to dismiss an information for facial insufficiency, the Court reviews the information solely within its four corners ... . As long as the factual allegations give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.People v. Pasquazi, 48 Misc 3d 1226(A) (Crim Ct NY County 2015), citations omitted.
Defendant's final argument relies on those same Facebook communications to argue that, even if a threat was made, the complainant "did not perceive [it] as 'genuine' and 'serious.'" Seigel Aff. ¶ 26. For this same reason, the Court rejects this argument, as well. C. Conclusion
Defendant's motion to dismiss is denied. IV. CONCLUSION
For the foregoing reasons, defendant's motion to denied This constitutes the Decision and Order of the Court. Dated: October 11, 2017 New York County, New York _______________________ Steven M. Statsinger Judge of the Criminal Court