During a telephone call, Daphane told Ben to stop calling her friend. Ben became agitated and said, "DON'T LET ME USE MY BOXING ON YOU." Daphane filed a police report; Ben was arrested for aggravated harassment in the second degree, and harassment in the second degree. Harassment in the second degree is when, with intent to harass, annoy or alarm another person they strike, shove, kick or has physical contact, or attempts or threatens to hit them. AGGRAVATED harassment in the second degree is when someone threatens to cause physical harm to a person and knows or should know that the communication will cause fear of being hurt.
Court DISMISSED the charges stating that Ben's words did not constitute "fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct." Nor could the statement "only reasonably be interpreted as presenting a clear and present danger of some serious substantive evil, sufficient for criminal liability to attach."
Here are examples of language used where the defendant was not so lucky:
1. "IF YOU CARED ABOUT YOUR DAUGHTER'S WELL-BEING, ABOUT HER SAFETY, YOU WILL DROP THE CHARGES." People v. Wilson, 59 A.D.3d 153, 153 (1st Dep't 2009);
2. Defendant banged on her apartment door with his hands and feet for 45 minutes and said, "OPEN THE DOOR BITCH, I'M NOT PLAYING WITH YOU, YOU RAISED MY TEMPER, YOU HAVE A N*** IN THE HOUSE? I KNOW YOU SEE ME. I'M GONNA KILL YOU."
"I'M GONNA KILL YOU, I'M GONNA HURT, I'M SORRY AND I LOVE, YOU'RE A HO, A BITCH, A SLUT, IF YOU EVER LET MY BABY SEE ANOTHER MAN I'M GONNA HURT YOU AND NO ONE WILL STOP ME FROM KILLING YOU." People v. Mitchell, 24 Misc 3d 1249(A) (Bronx Co. Sup. Ct. 2009);
3. "[W]HO ARE THE WOMEN. . . . [I]F I SEE YOU WITH ANOTHER WOMAN I'LL FUCK YOU UP." People v. Olivio, 6 Misc 3d 1034 (NY Co. Crim. Ct. 2005);
4. "IF YOU TRY TO KEEP MY SON AWAY FROM ME I'M GOING TO PUT A BULLET IN YOUR HEAD." People v. Tiffany, 186 Misc.2d 917, 918 (NY Co. Crim. Ct. 2001).
Here is the decision: People v Tackie