People v. Lagano (Anthony)

People v Lagano (2021 NY Slip Op 50767(U)) [*1] People v Lagano (Anthony) 2021 NY Slip Op 50767(U) [72 Misc 3d 138(A)] Decided on July 30, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on July 30, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ 2019-980 RI CR The People of the State of New York, Respondent, against Anthony Lagano, Appellant. Brill Legal Group, P.C. (Peter E. Brill of counsel), for appellant. Richmond County District Attorney (Morrie I. Kleinbart and Thomas B. Litsky of counsel), for respondent. Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raja Rajeswari, J.), rendered April 12, 2019. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree, and imposed sentence. ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed. After a nonjury trial, defendant was convicted of harassment in the second degree (Penal Law § 240.26 [1]), and sentence was imposed. Viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620 [1983]), we find that the evidence was 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]; People v Marom, 63 Misc 3d 145[A], 2019 NY Slip Op 50675[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Ruggerio, 4 Misc 3d 133[A], 2004 NY Slip Op 50747[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). While genuine threats of physical harm fall within the scope of the statute, an outburst, without more, does not constitute a violation (see People v Dietze, 75 NY2d at 53-54; People v 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" (People v Dietze, 75 NY2d at 51) which might be forbidden or penalized. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed. ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 30, 2021