People v. DiFeo

• Decision Date: 13 April 1972
• Citation: 331 N.Y.S.2d 554,69 Misc.2d 1036
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony DiFEO, Appellant.
• Court: New York County Court

Page 554

331 N.Y.S.2d 554

69 Misc.2d 1036

The PEOPLE of the State of New York, Respondent, v. Anthony DiFEO, Appellant.

Onondago County Court.

April 13, 1972.

Leo F. Hayes, Dist. Atty., of Onondaga County, Richard A. Wittenburg, Syracuse, of counsel, for the People.

Frank Armani, Syracuse, for defendant-appellant.

MEMORANDUM

ALBERT ORENSTEIN, Judge.

This is an appeal from a judgment of conviction of Harassment in violation of 240.25 of the Penal Law after trial without a jury in the Town of Dewitt Court of Special Sessions (Kimball, J.) on August 11, 1971. The record is unclear as to the specific section violation. However, from the return filed by the trial judge, it appears the applicable section is 240.25(2) of the Penal Law.

Briefly stated, the facts indicate that the defendant while walking through the parking lot of the Scene Restaurant made a remark to one of his friends that 'there was a nigger on the door' which statement was overheard by one Officer Glinski. Officer Glinski stopped the defendant then called the complainant over and asked the defendant to repeat what he had said. The complainant testified that Officer Glinski and the defendant were talking as he walked to where the defendant was.

The complaint tried to get the defendant to apologize and told the defendant he would let him go and forget about it if he apologized but the defendant said he had made the remark to his friend in a private conversation and refused to apologize.

The defendant testified he meant no offense to the complainant by the remark. The defendant stated the initial remark was made to his companion to tell them that a black officer was at the side door. The complaint himself did not care what the defendant said.

§ 240.25 subd. 2 of the Penal Law reads as follows:

'A person is guilty of harassment when, with intent to harass, annoy or alarm another person:

2. In a public place, he uses abusive or obscene language, or makes an obscene gesture.'

Criminal Law in New York under the Revised Penal Law by Marks and Paperno, Section 545 p. 611 states:

'The distinctive mens rea which must appear, and which is applicable to, and must be read into, each of the constituting subsections, is that the sacts designated must be perpetrated 'with intent to annoy or alarm another person."

Section 15.05 of the Penal Law defines intentionally as follows:

'1. 'Intentionally.' A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.'

It does not appear from the trial transcript that the facts prove beyond a reasonable doubt that the defendant herein intentionally directed his remarks toward the complainant, with the intent to harass, or annoy him. The remarks appear to have been made to a companion in a private conversation and overheard by a white officer who then asked complainant over to have defendant repeat what he had said.

In addition, the officer testified that he was not annoyed by what the defendant said and that he...