Defendant, Johnny Morgan, is charged with harassment in the second degree (Penal Law § 240.26).

On January 13, 2006, I commenced a bench trial. At the close of the People's case, defendant moved, pursuant to Criminal Procedure Law § 290.10, for a trial order of dismissal.

The People called one witness: Police Officer Joseph Freer, who testified credibly. On the evening of July 2, 2005, Officer Freer, a two year veteran of the Bronx 43rd Precinct, was assigned to guard defendant, a prisoner admitted to Lincoln Hospital. Officer Freer knew defendant from prior arrests and was aware that defendant had lodged complaints with the Civilian Complaint Review Board against other officers in the precinct.

One of defendant's arms was handcuffed to a bed rail; the other was free. Defendant was hungry. At 6:49 p.m., defendant's legs were shackled. In response, defendant became agitated and began "carrying on", stating "[w]hy you got to put these on me. I know this isn't policy." Defendant was "very hyped up", yelling and gesticulating "wildly." About 30 minutes later, defendant announced to Officer Freer, who was two feet away, "I'm [sic] kill you, you faggot ass cracker. I'll tear your eyes out." Defendant added: "bring all the other officers you want, I'll kill them too."

Officer Freer claims that defendant's words and gestures caused the officer to fear for his safety.

Defendant moves for a trial order of dismissal, on the ground that Officer Freer's testimony is not legally sufficient to sustain the charge of harassment in the second degree. Legally sufficient evidence is "competent evidence which, if accepted as true, would establish every element of an offense charged". CPL § 70.10.

Penal Law § 240.26(1) states that: "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person . . . [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same". This prohibition does not apply, however, to a statement that is not a serious threat or one that is nothing more than a "crude outburst." People v. Dietze, 75 NY2d 47, 53-54 (1989).

Here, the People have not met their burden. Defendant's statements and gestures reflect his outrage at being handcuffed and shackled to a hospital bed. As the judge of the law and the facts, I find that, under the circumstances, Officer Freer could not reasonably perceive [*2]defendant's conduct as a genuine threat to life or safety. There is no evidence that defendant attempted to strike the officer or to break free. Moreover, defendant's invitation to Officer Freer to "bring all the officers you want, I'll kill them too" is no more than an expression of "anger or annoyance in terms of apparent bravado". People v. Todaro, 26 NY2d 325, 330 (1970).

I have considered the People's remaining arguments and find them without merit.

Accordingly, defendant's motion is granted and the case is dismissed.

This constitutes the decision and order of the court.

Dated:

Analisa Torres, J.S.C.