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 [1]) and imposing sentence.

Judgment of conviction unanimously reversed on the law and accusatory instrument dismissed.

Viewing the evidence in the light most favorable to the prosecution (People v
Contes, 60 NY2d 620 [1983], 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 [1989]; People v Todaro, 26 NY2d 325 [1970]). 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 [1969]). 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 [*2]complainant was improper. For example, the evidence of other direct confrontations between defendant and 8 or 10 neighbors was irrelevant.
Decision Date: July 01, 2004