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City Court, New York,

The PEOPLE of the State of New York, Plaintiff, v. Joseph S. CHOWANIEC, Defendant.

Docket No. 22-3390481

Decided: March 31, 2023

Kristen S. Fischer, Esq. Assistant District Attorney and Brooke A. Meehan, Esq. Legal Aid Bureau of Buffalo


Before this Court is the Defendant's motion to dismiss the instant two counts of Aggravated Harassment in the Second Degree (Penal Law § 240.30 [2]) on the grounds of legal insufficiency pursuant to CPL § 100.40 (1) (c). The Court considers the Notice of Motion with the supporting affidavit of defense counsel Brooke Meehan, Esq., sworn to on the 28th day of February, 2023 and the Erie County District Attorney's opposition to the instant motion by the affidavit of Assistant District Attorney Kristen Fischer, Esq., sworn to on the 10th day of March 2023.


The Defendant's instant charges of Aggravated Harassment in the Second Degree are supported by factual allegations set forth in two separate informations by two separate complaining witnesses. The facts therein alleged are as follows: On the first day after a mass shooting at the Tops Markets on Jefferson Avenue, an employee of Bocce Club Pizza in the City of Buffalo, Jennifer Lombardo, received a call from the Defendant in which the Defendant requested free food. After Ms. Lombardo denied the Defendant's request, Defendant stated “You can thank the Tops on Jefferson” two times. As a result of this comment, Bocce Club Pizza closed for the day.

The Defendant is alleged to have repeated the same conduct nearly one hour later at 1:00 p.m. on the same day. Sarah Yung, an employee of the Southern Tier Brewing Company, received a telephone call from the Defendant at her place of employment during which the Defendant requested free food. When Ms. Yung denied the Defendant's request, the Defendant repeated the phrase “Tops on Jefferson” two consecutive times. Southern Tier Brewing Company shut down early as a direct and proximate reaction to the Defendant's telephone call.

In the instant motion, Defendant claims that the accusatory instruments charging Aggravated Harassment pursuant to Penal Law § 240.30 (2) are legally insufficient in that they fail to allege that in placing these calls, Defendant lacked a legitimate purpose and that his statements were not actual threats. Rather, Defendant contends that the original purpose for the call was to ask for free food — a legitimate basis — and that his statements were not threatening, coercive, or intimidating in nature.


For the reasons set forth more fully below, both instant accusatory instruments satisfy the applicable legal standards for facial sufficiency. Assuming all of the allegations contained therein to be true, the accusatory instruments establish that it is reasonably likely that the two charged counts of Aggravated Harassment in the Second Degree were committed, and moreover, reasonably likely that the Defendant committed such offenses. Despite any First Amendment considerations raised by the Defendant, a triable issue of fact is presently raised before this Court as to whether the Defendant's statements in both accusatory instruments constitute a true threat proscribed by statute. Defendant's motion to dismiss must therefore be denied.


For an accusatory instrument to be legally sufficient, it must contain non-hearsay factual allegation which, when viewed in the light most favorable to the People and with reasonable inferences to be drawn therefrom, provide reasonable cause to believe that the defendant, acting with the required mens rea, committed each and every element of the offense charged (CPL §§ 100.15, 100.40; People v Alejandro, 70 NY2d 133 [1987]; People v Inserra, 4 NY3d 30 [2004]).

Reasonable cause to believe that a person has committed an offense exists “when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that such offense was committed and that such person committed it (CPL 70.10 [2]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]).


a. All relevant constitutional considerations afford the Defendant no protection for his statements regarding “Tops on Jefferson”

In 1919, Associate Justice Oliver Wendell Holmes authored the majority opinion in Schenck v United States, (249 US 47 [1919]) which stands as the first opinion in United States history setting forth the idea that the state may lawfully proscribe certain acts of speech without running afoul of the Constitution's First Amendment. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force,” (Id. at 52 [citing Gompers v Bucks Stove & Range Co., 221 US 418, 439 [1911]). “[I]n many places and in ordinary times the defendants in saying all that was said would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.” Id. at 53. The Schenck court set forth the “clear and present danger” test, which held that speech may be proscribed where “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (Id. 52).

The late days of the Warren Court saw Schenck's clear and present danger test falling out of favor with the Supreme Court Justices. While the Court never reversed Schenck's clear and present danger test, it set forth a parallel and equally valid test for determining the constitutionality of speech restrictions in the per curiam opinion of Brandenburg v Ohio, 395 US 444 [1969]. In Brandenburg, the defendant-appellant was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism” (Id. at 444, 445).

In Brandenburg, the defendant, an avowed member of the Ku Klux Klan, was shown in a film with twelve hooded figures, some of whom carried firearms and gathered around a burning cross. No one other than the twelve men and the reporter who filmed the gathering were present. (Id. at 445, 446). The defendant was recorded speaking in extremely derogatory terms about both African Americans and Jewish people, The defendant stated, inter alia, “We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken (Id. at 446).

The Supreme Court reversed Brandenburg's conviction under the Ohio statute on “the principle that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (Id. at 447, 448). Brandenburg, therefore, sets forth a two-pronged test to evaluate the constitutionality of speech prohibitions; prohibited speech must be directed at inciting or producing imminent lawless action; and (ii) it is likely to incite or produce such action This Court notes that both the Schenck and Brandenburg tests offer competing, yet not necessarily contradictory approaches to evaluate prohibitions on speech. This Court nevertheless is not compelled to choose between the two, particularly because the allegations contained in both instant accusatory instruments allege what amounts to a “true threat” exception to the First Amendment's protections.

The United States has a long history and tradition permitting state governments to prohibit and punish “true threats” communicated to another person. The rationale behind the policy of exempting “true threats” from constitutional protections is to protect individuals from the fear of violence from the disruption that fear engenders and the possibility that the threatened violence will occur (R.A.V. v City of St. Paul, 505 US 377, 388 [1992] [holding that “Threats of violence are outside the First Amendment”]).

In 2003, just eleven years after R.A.V., the Supreme Court expressly stated that “the First Amendment permits a State to ban a ‘true threat’ ” (Virginia v Black, 538 US 343, 358-359 [2003]). The Black court defines a “true threat” as a statement that the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (Id. at 359). Most important for the purposes of this case is that “[i]ntimidation in the constitutional proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death (Id. at 360).

b. New York law applied in the context of First Amendment jurisprudence requires that the Defendant's motion to dismiss for facial insufficiency be denied

It is within this Court's sole discretion to take judicial notice sua sponte (Matter of Justice v King, 60 AD3d, 1452, 1453 [4th Dept 2009]). The Court may take judicial notice of facts of such common knowledge within the community where the court sits that they cannot be reasonably be the subject of dispute (Guide to New York Evidence Rule 2.03 [2] [a]; People v Snyder, 41 NY 397, 398 [1869] [“courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction”]).

This Court takes judicial notice of the tragic occurrence of a mass shooting that occurred on May 14, 2022 at the Tops Friendly Markets supermarket on Jefferson Avenue in the City of Buffalo. On that day ten African Americans were murdered and another three injured, during which the shooter livestreamed the mass shooting on the internet. The shooting was immediately covered in the international media.

Penal Law § 240.30 (2) provides in relevant part:

A person is guilty of aggravated harassment in the second degree when (2) with intent to harass or threaten another person he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication (Penal Law § 240.30 [2]).

According to the statute, to sustain a conviction of Aggravated Harassment in the Second Degree, a defendant must initiate communication with the intent to harass while having no legitimate purpose for the communication. The Court of Appeals has found the phrase “no legitimate purpose” to mean “the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances” (People v Shack, 86 NY2d 529 at 538 [1995]). Critically, the mere fact that a harassing phone call was initiated with a legitimate purpose will not shield the caller from criminal liability for threats that follow (People v Tiffany, 186 Misc 2d 917, 12-13 [2001]).

Context matters, and context is the guide of this Court in determination of the Defendant's motion to dismiss for facial insufficiency. In the context of the May 14, 2022 shooting at Tops Friendly Markets on Jefferson Avenue, then, the Defendant's alleged statements regarding “Tops on Jefferson”, repeated twice in both accusatory instruments, could be considered a true threat to the complainants because they were uttered one day after the Tops Friendly Markets mass shooting. The massacre dominated headlines both locally and nationally; it is reasonable to presume that most, if not the vast majority, of the region was familiar with the shootings, and that the fear of copy-cat attacks might ensue. Furthermore, the Defendant's reported statements are alleged to have been made in response to the Defendant being denied requests for free food, suggesting retaliatory or coercive intent. Therefore, in this context the defendant's alleged statements are not protected speech.

Divorced from context, these statements would be ambiguous, if not meaningless. The context of the shooting and effect of the Defendant's double repetition in both instances, however, leads to the reasonable inference that the Defendant made such statements in a hostile or threatening manner.

In sum, whether the Defendant's remarks are a “true threat” cannot be decided at this stage of the case but is rather a fact issue for a potential jury. Given the simple fact that the mass shooting had occurred one day before the Defendant's alleged statements, a reasonable juror could conclude that such statements constituted a true threat of intimidation. In light of the fact that a mass shooting occurred at the Tops on Jefferson on May 14, and in light of the pleadings in the information, nothing leads this Court to conclude that the People could not establish at trial that the Defendant knew or should have known that his statements would constitute a threat beyond the scope of First Amendment protection. For those reasons, the Defendant's motion is unsuccessful.


Based upon the foregoing analysis, the Defendant's motion to dismiss the accusatory instruments pursuant to CLP § 100.40 (1) (c) is DENIED and the matter scheduled for further proceedings.

Rebecca L. Town, J.

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Docket No: Docket No. 22-3390481

Decided: March 31, 2023

Court: City Court, New York,

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