PEOPLE v. LAGANO (2021)

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.