New York Law Review

Tag: harassment

  • People v. Diaz, 28 N.Y.2d 230 (1971): Defining Lesser Included Offenses Based on Intent

    People v. Diaz, 28 N.Y.2d 230 (1971)

    A crime is not a lesser included offense of another if it requires proof of an element not required for the greater offense.

    Summary

    The New York Court of Appeals addressed whether harassment could be considered a lesser included offense of assault. The defendant was charged with assault in the third degree for allegedly striking a police officer. The trial court instructed the jury that they could convict him of the “lesser offense” of harassment, and he was convicted of harassment. The Appellate Term reversed, holding that harassment could not be deemed a lesser included offense of assault. The Court of Appeals affirmed, reasoning that harassment requires proof of an intent to harass, annoy, or alarm, which is not an element of assault, which requires intent to cause physical injury.

    Facts

    The defendant was charged with assault in the third degree (Penal Law § 120.00) for allegedly striking a police officer with intent to cause injury.

    At trial, the judge instructed the jury that they could find the defendant guilty of the “lesser offense” of harassment (Penal Law § 240.25).

    The jury convicted the defendant of harassment.

    Procedural History

    The Appellate Term reversed the conviction and dismissed the information, holding that harassment could not be deemed a lesser included offense of assault.

    The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether harassment may be deemed a lesser included offense of assault.

    Holding

    No, because the violation of harassment requires proof of an element—an intent to harass, annoy, or alarm—which is not required to establish the crime of assault.

    Court’s Reasoning

    The court began by examining the definitions of assault and harassment under the New York Penal Law. Assault in the third degree, as defined in § 120.00, requires proof that the defendant, “ [w]ith intent to cause physical injury to another person, he causes such injury to [him] ”. Harassment, as defined in § 240.25, requires proof of an “ intent to harass, annoy or alarm ”. The statute reads that a person is guilty of harassment “ when, with intent to harass, annoy or alarm ” he “ strikes, shoves, kicks or otherwise subjects [another] to physical contact ”.

    The court emphasized that the intent to injure, which is an element of assault, does not include an intent to harass, annoy, or alarm. Because harassment requires proof of an additional element not required for assault, it cannot be considered a lesser included offense. As the court stated, “since an additional element or fact must be shown to be present in a case of harassment, that violation may not be said to be included in the crime of assault.”

    The court also referenced the new Criminal Procedure Law (CPL), particularly § 220.20, which addresses guilty pleas. This section lists specific rules under which an offense of “lesser grade” than the one charged may be deemed a “lesser included offense for plea purposes only.” Subdivision 1, paragraph (f) of § 220.20 states that, “ [w]here the crime charged is assault * * * the offense of harassment [Penal Law, § 240.25] is deemed to constitute a lesser included offense ” “ only for the purposes of conviction upon a plea of guilty and not for purposes of conviction by verdict ” (subd. 2). The court reasoned that if the Legislature considered harassment a lesser included offense of assault for both plea and verdict purposes, there would have been no need to specify that it is only a lesser included offense for plea purposes. This distinction implies that the Legislature recognized that harassment is not a lesser included offense of assault under the general statutory definition (CPL, § 1.20, subd. 37).

    The court noted that while CPL § 220.20(2) allows conviction by verdict for lesser included offenses as defined in CPL § 1.20(37), the specific designation of harassment as a lesser included offense of assault “ only for purposes of conviction upon a plea of guilty ” constitutes a legislative determination that it is not an included crime under the statutory definition.

  • People v. Todaro, 26 N.Y.2d 325 (1970): Limits on Disorderly Conduct and Harassment Charges

    People v. Todaro, 26 N.Y.2d 325 (1970)

    A conviction for disorderly conduct for refusing to obey a police officer’s direction to move on requires that the officer’s direction be reasonably related to maintaining public order, while a harassment conviction based on a threat requires evidence beyond mere bravado to prove intent to harass, annoy, or alarm through physical contact.

    Summary

    Russell Todaro was convicted of disorderly conduct and harassment. The charges stemmed from an incident where Todaro and his companions allegedly refused to move on when instructed by a police officer on a busy New York City street corner. The New York Court of Appeals affirmed the disorderly conduct conviction, finding the officer’s directive was not arbitrary given his duty to maintain public order. However, the court reversed the harassment conviction because Todaro’s statement, “I’ll get you for this,” made after his arrest, was insufficient to prove an intent to harass, annoy, or alarm the officer through physical contact.

    Facts

    A police officer observed Russell Todaro and three companions for about an hour at the corner of Seventh Avenue and 42nd Street in New York City. The officer asked them to move on several times. After repeated requests, Todaro refused, using abusive language. The officer then arrested Todaro for disorderly conduct. While in the patrol car, Todaro allegedly said, “I’ll get you for this,” leading to an additional charge of harassment.

    Procedural History

    Todaro was convicted in the trial court of disorderly conduct and harassment. He appealed to the Appellate Term, arguing insufficient evidence. The Appellate Term affirmed the conviction, despite the People’s concession of insufficient evidence. One Justice dissented. Todaro then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the evidence was sufficient to sustain a conviction for disorderly conduct under Penal Law § 240.20, subds. 3, 6?

    2. Whether the evidence was sufficient to sustain a conviction for harassment under Penal Law § 240.25, subd. 1, based on the statement “I’ll get you for this”?

    Holding

    1. Yes, because the officer’s direction to move on was not arbitrary, and the trial court could find that Todaro consciously disregarded the risk that his actions and language would cause public inconvenience, annoyance, or alarm.

    2. No, because the single, equivocal statement was insufficient to establish beyond a reasonable doubt that Todaro intended to harass, annoy, or alarm the officer through physical contact.

    Court’s Reasoning

    The Court of Appeals relied on People v. Galpern, which held that refusing to obey a police officer’s direction is justified only if the direction was “purely arbitrary and was not calculated in any way to promote the public order.” The court reasoned that the circumstances in Todaro’s case did not indicate arbitrariness, as the officer was maintaining order on a busy street corner. The court emphasized that the disorderly conduct statute addresses the risk of disorder, not just the accomplished fact of disorder. The court stated, “On this record, the trial court could well have found beyond a reasonable doubt that the appellant was aware of and consciously disregarded a substantial and unjustifiable risk that ‘public inconvenience, annoyance or alarm’ might result from his use of clearly ‘abusive and obscene language’ in response to the officer’s repeated requests to move on and his refusal to comply with such requests.”

    Regarding the harassment charge, the court found the evidence insufficient. Penal Law § 240.25, subd. 1 requires proof that the defendant, with intent to harass, annoy, or alarm, attempted or threatened to “strike, shove, kick or otherwise subject him to physical contact.” The court stated, “Something more must be established than that a teenager, angered or annoyed at being arrested upon what he considered to be insufficient grounds, expressed his anger or annoyance in terms of apparent bravado, particularly in the absence of proof of any further words or acts tending to confirm the criminal nature of the act charged.”