Papers considered:Defendant’s MotionWith Affirmation of Stewart A. McMillan, Esq. and Memorandum of LawPeople’s Affirmation of James P. Tobin, Assistant District Attorney, in OppositionDECISION AND ORDER Defendant, Channing Creecy, is charged by superseding information, supported by a deposition of the alleged victim, with the violation of harassment in the second degree, in violation of Penal Law section 240.26(1), in that, with intent to harass, annoy or alarm another, he threatened to subject the victim to physical contact, by stating to her:”Brick by brick, dollar by dollar, body by body, I’m going to start with you, and I’m going to run through every person that has ever helped you.”By written motion, Defendant moves to dismiss the charge and for other relief.Motion to DismissDefendant contends that the information is facially insufficient because the statement alleged does not contain a threat of imminent harm, and was “ambiguous or subject to interpretation.”For purposes of this motion, defendant concedes that he made the statement directly to his wife, in their home, in the context of discussions over their legal separation. Specifically, defendant asserts, he made the statement while angered over what he considered to be his wife’s improper use of marital assets for personal expenses, and as a way to inform her that he would discover the details of any dissipation of marital assets. The parties agree that the statement was a quotation from a Denzel Washington action movie entitled, “The Equalizer,” which the parties had recently seen together.For a violation information to be facially sufficient, “the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, [must] provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information”, and “non-hearsay allegations of the factual part of the information and/or any of the supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.” CPL §100.40(1). The People are entitled to all “reasonable inferences from all the facts set forth in the accusatory instrument,” People v. Jackson, 18 N.Y.3d 738, 747 (2012), and the facts must be viewed in a light most favorable to the People. People v. Barona, 19 Misc.3d 1122(A) (Crim. Ct. NY Co. 2008).Defendant argues that his words do not constitute an immediate, unambiguous threat of physical contact. The authorities on which he relies, People v. Khaimov, 26 Misc.3d 1202(A) (Crim. Ct. NY Co. 2009) and People v. Todaro, 26 N.Y.2d 325 (1970), stand for the proposition that generalized or conditional threats of future action are insufficient to violate the statute. He argues, moreover, that his statement was vague, “overbroad,” or exaggerated, and insufficient to permit the required inference of specific intent.The statement at issue in this case differs from those in Defendant’s authorities in that it is (a) unconditional (“I’m going to”), (b) clearly directed to his wife (“start with you”), (c) contains a specific threat of bodily harm (“body by body”), and (d) requires no imagination to infer intent. That is more than ample to satisfy the statute on the face of the pleading.Defendant contends, further, that because his statement was derived from a movie, it is somehow less threatening. The opposite appears to be the case. The Court takes notice of the film’s description as “a vigilante action thriller,” its promotional poster bearing an image of Denzel Washington carrying an automatic weapon, and its “R” rating for “strong bloody violence and language throughout.” Invoking language from a violent film that the parties had recently viewed together, and that evidently so strongly impressed the Defendant that he remembered the line verbatim, adds a chilling tone to it from which a threat of intended and imminent violence can easily be inferred.For the foregoing reasons, Defendant’s motion to dismiss the charge is denied. It remains the People’s burden to prove every element of the charge beyond a reasonable doubt.Other Relief RequestedDefendant’s motion to suppress any evidence arising out of a search of his vehicle is denied as moot, the People having stated their intention not to offer any such evidence.The Court will conduct a Sandoval hearing at the appropriate time if the People give notice of their intention to offer evidence of any prior bad acts. Defendant’s motion for a Ventimiglia hearing is denied without prejudice as premature. The People shall give timely notice of any intent to offer evidence of Defendant’s prior acts in their case in chief.The People acknowledge their continuing obligations under Brady v. Maryland and Giglio v. United States.The People shall comply with their obligations under CPL §240.20. Defendant may make further application on discovery issues on a showing of good cause pursuant to CPL §255.20.The foregoing constitutes the Decision and Order of this Court. The parties shall appear for further proceedings as scheduled on November 5, 2018 at 6:00 p.m.So Ordered.Dated: October 29, 2018Mamaroneck, NY
