Defendant is charged with one count of Harassment in the Second Degree, PL 240.26(1), and three counts of Aggravated Harassment in the Second Degree, PL 240.30(1)(A), 240.30(1)(B), and 240.30(2). The accusatory instrument states that:

...defendant did tell informant that defendant was gonna fuck informant up,

and that after defendant left defendant called informant and told informant

that informant was a bitch and that defendant was gonna get informant. [sic]

...further...the above described actions caused informant to fear physical

injury and to become alarmed and annoyed....[I]nformant recognized the voice

on the phone to be that of the defendant.

Defendant asserts that the accusatory instrument, along with the supporting deposition which simply affirms the complaint, fails to support each and every element of the crimes charged.

PL 240.26(1) states:

A person is guilty of harassment in the second degree when, with intent to

harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person

to physical contact, or attempts or threatens to do the same.

The crux of the offense of harassment in the second degree is the element of physical contact, either actual, attempted or threatened. People v. Bartkow, 96 NY2d 770, 725 NYS2d 589 (2001). In this context, courts have held that verbal threats alone may not be sufficient to meet this burden. For example, in People v. Dietz, 75 NY2d 47, 550 NYS2d 595 (1989), the [*2]court held that a defendant's statement that she would "beat the crap out of {victim} some day or night in the street" did not violate the statutory prohibition of PL 240.26(1). Similarly, in People v. Todaro, 26 NY2d 325, 310 NYS2d 303 (1970), the court found that a defendant yelling at a policeman "I'll get you for this,' was insufficient to maintain a charge of harassment in the second degree. (Overturned on other grounds in People v. Jones, 9 NY3d 259, 848 NYS2d 600 (2007)).

However, where a verbal threat was accompanied by some physical action, the charge of harassment in the second degree may be sustained. People v. Price, 178 Misc 2d 778, 683 NYS2d 417 (Crim. Ct NY County 1998)[defendant said "I'll get you for this' while shaking his hand at the complaining witness].

In its opposition, the People cite People v. Turpin, 8 Misc 3d 128A, 801 NYS2d 780 (App. Term 2d Dept. 2007), which distinguishes People v. Todaro, supra . However, in Turpin, the defendant made the threats to the complaining witness multiple times as opposed to a single instance. In this context Turpin is distinguishable from the instant matter, and the court finds Todaro, a decision from the Court of Appeals, to be persuasive. Therefore, the court finds that the accusatory instrument fails to support the charge of harassment in the second degree.

PL 240.30 states that a person is guilty of aggravated harassment in the second degree when he or she:

(1)(A). Communicates with a person, anonymously or otherwise, by telephone,

or by telegraph, mail or any other from of written communication, in a manner

likely to cause annoyance or alarm; or

(B) causes a communication to be initiated by mechanical or electronic means

or otherwise with a person, anonymously or otherwise, by telephone, or by

telegraph, mail or any other form of written communication, in a manner to

cause annoyance or alarm; or

(2) Makes a telephone call, whether or not a conversation ensues, with no

purpose of legitimate communication....

The gravamen of the crimes of aggravated harassment in the second degree is the invasion of someone's private space via specified methods, most notably the telephone, and doing so with the intent to annoy, harass or alarm. People v. Coyle, 186 Misc 2d 772, 719 NYS2d 818 (Dist. Ct. Nassau County 2000). In order to sustain this charge, the People must show that, under the circumstances, an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury. People v. Hernandez, 7 Misc 3d 857, 795 NYS2d 862 (Crim. Ct. NY County 2005). Whether particular words constitute a "true threat" as required under the statute is usually a question of fact for a jury, unless the language is incapable of constituting a threat as a matter of law. People v. Bonitto, 4 Misc 3d 386, 777 NYS2d 900 (Crim. Ct. NY County 2004).

Unlike a charge of harassment in the second degree under PL 240.26(1) where statements [*3]such as "I'm going to get you" alone may not be sufficient to support the charge unless accompanied with other surrounding factors, under PL 240.30 (1)(A) and (B), the invasion of privacy in conjunction with the words may be sufficient. As stated by the court in Bonitto, id., this is a question of fact for a jury, and consequently the court finds that the accusatory instrument is facially sufficient to sustain the charges under PL 240.30(1)(A) and (B).

However, in order to support of charge of aggravated harassment in the second degree under PL 240.30(2), the failure to allege that a phone call by a defendant lacked a purpose of legitimate communication renders an accusatory instrument facially insufficient. People v. Singh, 1 Misc 3d 73, 770 NYS2d 560 (App. Term 2d Dept. 2003); People v. Alfano, 5 Misc 3d 780, 783 NYS2d 799 (Justice Ct. Monroe County 2004). Therefore, the court finds that the accusatory instrument is facially insufficient to support a charge of aggravated harassment in the second degree under PL 240.30(2).

This constitutes the decision of the court.

Dated: April 4, 2008

__________________________

Eileen N. Nadelson, J.C.C.