Opinion
Argued April 24, 1973
Decided June 7, 1973
Appeal from the Onondaga County Court, ORMAND N. GALE, J.
Irwin Birnbaum for appellant.
Leo F. Hayes, District Attorney ( John A. Cirando of counsel), for respondent.
Order reversed and the information dismissed upon the ground that the evidence adduced did not establish the violation of harassment.
Concur: Chief Judge FULD and Judges BURKE, BREITEL, JONES and WACHTLER. Judge JASEN dissents and votes to affirm in the following opinion in which Judge GABRIELLI concurs.
The question presented upon this appeal is whether the evidence is sufficient to support defendant's conviction for harassment in violation of section 240.25 (subd. 2) of the revised Penal Law.
The conduct for which defendant was convicted occurred in the lobby of the Public Safety Building in Syracuse. The complainant, a police officer, had just testified at the preliminary hearing of one of defendant's friends. Defendant was a spectator at the hearing. When the preliminary hearing was concluded, those who had been present proceeded to the lobby. As the officer stepped onto an elevator, the defendant called him a "pig". The officer did not arrest the defendant at this time, and this utterance was not the basis of defendant's conviction. Shortly thereafter, the officer again encountered defendant, when he returned to the lobby to purchase cigarettes. At this time the words which are the basis of this proceeding were uttered — defendant said, "You are a f____g liar." The officer asked defendant to repeat what she had said, and after she did, he arrested her. At trial, the officer testified that this utterance offended and annoyed him.
In my opinion, there is more than ample evidence in the record to support defendant's conviction for violating the harassment statute (Penal Law, § 240.25). That statute provides, in pertinent part, that "[a] person is guilty of harassment when, with intent to harass, annoy or alarm another person * * * [i]n a public place, he uses abusive or obscene language".
I cannot say, as the majority does, that the defendant's conduct did not, as a matter of law, violate the harassment statute. It is difficult to perceive of conduct that would be more abusive and offensive than the statements here directed at a witness immediately subsequent to his testifying at a judicial hearing. Nor can there be any question that the defendant's conduct was not merely an emotional outburst. The fact that the defendant made unprovoked, unfriendly remarks to the officer on two entirely separate occasions is evidence of an intent to harass and annoy. In the context of this event, it is my view that defendant's conduct in initially calling the officer a "pig" and subsequently stating to him, "You are a f____g liar" (in reference to his testimony in court), constituted a violation of the harassment statute.
I would affirm the conviction.
Order reversed, etc.