The defendant Kristi Kelly has been charged with violating Penal Law 240.26, Harassment in the second degree, a violation. The accusatory instrument more specifically alleges that "On August 2nd, 2008, at about 2:00 P.M. the defendant Kristi Kelly did with intent harass Doreen Marcelli while located at 20 Franklindale Avenue in the Village of Wappingers Falls, County of Dutchess, State of New York, by threatening Doreen Marcelli stating "I am going to kill you and your fucking lawyer". A trial in this matter took place on March 24th and March 30th of 2009. Both the People and the Defendant thereafter submitted closing arguments and Memorandums of Law and supporting case law for the court's review.

Based upon the relevant credible evidence presented at the trial as well as the closing arguments, memorandums of law and case law submitted by both parties, the court makes the following findings of fact and conclusions of law;

FACTS:

The People called Doreen Marcelli, the Complainant in this action, who testified she resides in a duplex dwelling and shares a common driveway with the Defendant. She has worked for battered women's services for 15 years. She has lived in her house for 8 years and the Kelly's have lived to the left for 7 years. She further testified that in the past the relationship between herself and the Kelly's has been very tumultuous. More

specifically on August 2nd, 2008 at approximately 2PM Ms. Marcelli testified she exited the rear of her home to say goodbye to her husband. The Defendant called out to her from her bedroom window, calling her a scumbag and saying "you bitch I am going to kill you, your family and your lawyer." She testified the window was directly above where she was standing and her husband also heard this exchange. Thereafter, Ms. Marcelli got in to her vehicle, backed out of the driveway and proceeded to the police department. During her testimony the complainant entered into evidence various pictures of her home and the side of the Kelly's home showing the window in which the Defendant allegedly yelled the previous statement. Ms. Marcelli further testified that the Defendant was approximately twenty feet away from her when she "threatened [*2]her". The People also admitted into evidence a letter from the Complainant's attorney as well as the Complainants supporting deposition executed on August 2, 2008.

Prior to the commencement of this trial the People had moved to allow the Complainant to testify considering the Defendant's prior bad acts pursuant to Molineaux in order to show intent to annoy. The Court ruled that the People would be allowed to do so and Complainant thereafter testified considering various incidents occurring between herself and the Defendant in the past. Specifically, Ms. Marcelli testified that in August of 2002 at approximately 3:30 PM the Complainant arrived at their home to discover the Defendant, who was approximately fourteen at that time, in her backyard using the Complainant's pool. Ms. Marcelli asked Ms. Kelly (the Defendant) to leave, whereupon Ms. Kelly said "go back to where you belong. I'll punch you and make you a cripple." The Complainant further testified she previously had back surgery where rods and screws were inserted in her back and the Defendant knew about this injury (though the Complainant never testified how the Defendant knew this). Ms. Marcelli further testified concerning several other events which occurred in the summer of 2008. Two incidents involved the Defendant blocking the Complainant from the driveway and in one incident the Defendant allegedly said to the Complainant while the Defendant was in her vehicle that she was going to kill her and "rip her fucking face off". However neither of these incidents prompted the Complainant to seek immediate police intervention. The most recent incident prior to the complaint in this action occurred on July 22, 2008 when the Defendant allegedly removed a "No Trespassing" sign from the Complainant's property prompting the Complainant to file Criminal Tampering charges against the Defendant. These charges were eventually dismissed.

On cross examination the Complainant testified to a slightly different version of the events on August 2, 2008 including testifying that the Defendant pointed her finger at her while she yelled at the Complainant, however the Complainant admitted that this was not included in her statement which she gave to the police on August 2nd, 2008. She further testified on cross examination she told the police that she was afraid that the Defendant was unstable, that the Defendant's father had recently committed suicide and she felt that the Defendant was going to hurt the Complainant. The village police told her to have her lawyer write a letter to the Defendant. She also testified on cross examination that at one time she had told the Defendant that the Defendant would go to jail like her father if she did not stop her behavior. She admitted that she had never been friendly with the Kellys, she barely "tolerated them". This dispute with the Kellys had been ongoing for seven years and during these seven years she has called the police and child protective services. She admitted that some of her contact with the police was because friends of the Kellys were parked on her part of the driveway. When this had occurred she took pictures of the people's vehicles, discussed this matter with the police and Officer McCue from the Village police told her to place a white line down the driveway to divide her portion of the driveway and the Kelly's portion of the driveway. She further testified on cross examination that when her daughter was 12 years old Mrs. Kelly, (the Defendant's mother), had given her daughter alcohol causing Ms. Marcelli to call Child Protective Services. But until July 22nd, 2008, none of the Kellys had been arrested and no warrants issued.

The Complainant testified on re-direct that the Defendant had harassed her many times before she contacted the police. She also testified that the Defendant at one time hired a surveyor and she asked the surveyor to stay off of her property and adhere to the "No Trespassing" sign. This happened more than once. After the second time she told the surveyors to stay off her property and they did so. She also testified that she was friendly with all her other [*3]neighbors, had no problems with any of them and had never filed any charges against them. On re-cross Ms. Marcelli admitted that she had never charged the Defendant with anything other than Harassment or Trespass.

The People also called Anthony Marcelli who testified that he worked for the Village Highway Department and that the Kellys were his neighbors. He indicated that the relationship between their family and the Kellys was a volatile one. He had heard the Defendant "threaten" his wife many times prior to August 2nd, 2008. He testified that on August 2nd, 2008, he was working in his garage around 2:00 PM. His wife came out to the garage to kiss him goodbye whereupon they heard the defendant yell at his wife from her bedroom window, point to his wife and say "you are going down you f—-ing bitch, you and your f—-ing family and lawyer, yeah you bitch". His wife then got in her vehicle and drove away. He further testified that they had no problems with any of their other neighbors. On cross examination Mr. Marcelli indicated he didn't associate with "those types of people", (the court assumed Mr. Marcelli was referring to the Defendant's family) "because they do drugs". He also indicated that he was so worried about his wife he often came home during lunch to make sure that his wife was safe. He did however admit that they never pressed charges until now. On redirect Mr. Marcelli testified that there had been various types of threats in the past including an incident with the Defendant in her truck and several male individuals blocking Ms. Marcelli from entering or exiting the driveway. During this incident the Defendant said to his wife "I'm going to rip your f—-ing face off". There is also another night prior to this incident where the Defendant swore at his wife. On re-cross Mr. Marcelli admitted that he did not call the police the night that the Defendant threatened his wife with her truck and threatened to "rip her f—-ing face off." After the testimony of Mr. Marcelli the People rested. At the conclusion of the People's case, the Public Defender moved to dismiss for failure to state a Prima Facie case. The Court denied this motion.

For the Defendant's case in chief the Defendant called Sgt. Lombardi with the Village of Wappinger Police Department. Sgt. Lombardi testified that he had been to the Marcelli's house three to four times in the last eight months. More specifically on July 22nd, 2008, the Defendant and her mother had come down to the police department concerning a dispute over the driveway shared with the Marcelli's and to complain about the Marcelli's. Ms. Marcelli had wanted Ms. Kelly arrested and to "teach her a lesson." On that day Mrs. Marcelli had come down to the police department to file charges for removing a No Trespassing' sign. Ms. Marcelli wanted Ms. Kelly to be arrested and taught a lesson. The Sergeant indicated that he told Ms. Marcelli the purpose of a criminal charge was not to teach a lesson and that he didn't feel that this was the best course of action because they were neighbors and had to live next door to one another. The Defendant next called Officer McCue who testified that he was a patrolman in the Village of Wappingers Falls for the past 10 years and had met with Ms. Marcelli once on April 8th, 2008. Ms. Marcelli came down to the police department to complain that someone else was in her driveway and had blocked it. She had no means of exiting or entering her driveway. No one was charged on this date and the officer indicated that it sounded more like a civil matter. On cross-examination Office McCue admitted that he never told Ms. Marcelli to put up a No Trespassing' sign or to draw a white line down her driveway.

The defense next called Jason Alan Baisley who testified that he was employed by Bob Oswald Surveyors and was called out to 22 Franklindale Avenue (the home of the Defendant) in July of 2008 to perform a survey. During his performance an older woman came out of her home and said to him that they were not allowed on her property and indicated these [*4]people (the Kellys) were drug dealers and did not pay their taxes. Mr. Baisley was able to identify this woman as owning the home next to the Kelly's which was the Marcelli's home. Mr. Baisley went back to this address the next day the same woman came out of her home and started taking pictures of them surveying the property. She told them that they were on her property and then accused Mr. Baisley of being the person who tried to hit her daughter with his car and accused him of sleeping with Leslie Kelly's daughter (the Defendant). Mr. Baisley testified that because of these crazy accusations he left the property and returned after the weekend to finish the survey. On cross-examination Mr. Baisley admitted that he did not contact the police concerning these accusations.

The defense then called Leslie Kelly who is the Defendant's mother. Ms. Kelly testified that she lives with her daughter Kristi and that on August 2nd, 2008, at approximately 1:30 P.M. the mailman arrived at their home and delivered to them two certified letters, one for her daughter and one for herself. The Defendant (her daughter) started to read the letter, became upset and angry and said "fucking ugly bitch is going down." Ms. Marcelli stated that her daughter was extremely angry, jumped off the bed and said "that fat, fucking ugly bitch". Her daughter was facing her mother and when she said this her back was to the window. She stated her daughter never turned around to the window but that the window was open. On re-direct Ms. Marcelli testified that Kristi (the Defendant) was loud and angry and that their homes (meaning her home and the Marcelli's) were really close together. This occurred in the Defendant's bedroom which has a window overlooking the driveway. An hour and a half later they left their house for a picnic. She testified that she had no relationship with Doreen Marcelli, the Complainant. She further testified that they had to install surveillance cameras in September of 2008, in order to protect her daughter from accusations constantly leveled by the Marcelli's. She indicated that she had never been arrested and that even though CPS had been called to her home some years ago nothing had happened.

The defense then called Kristi Kelly who testified that she lives at 22 Franklindale Avenue, Wappingers Falls, New York, works part time for the Hudson Valley Federal Credit Union, and is a full time student at Dutchess Community College majoring in finance. She has never been charged with a crime. On August 2nd, 2008 at approximately 2:00 PM she was in her bedroom and her mother came up with a letter for her. She opened it and after reading it stated "that lying bitch". She stated that she was mad about the letter, started yelling at her mother, but that she never yelled out the window. Her bed is located in the corner between the two windows. During this incident she told her mother that this had to come to an end and she decided to get an attorney. She indicated that from July 2nd until August 2nd nothing had occurred between the Marcelli's and herself. On July 21st, 2008 Ms. Kelly testified that she had come home and couldn't get in her driveway because Doreen Marcelli and her daughter were in the way. On the 22nd of July there was a white line on her driveway and a "No Trespassing" sign on the fence closest to the street. This fence is located on their property line. She ripped the sign off of the fence (this was the second time she had done this because she thought it was her side of the fence and that it was her property). On cross-examination Ms. Kelly indicated that she did not like Doreen Marcelli but that she had no problems with Mr. Marcelli and she didn't think Mr. Marcelli had ever made any false statements about her. She denied ever threatening Ms. Marcelli in any way and stated her mother's version of what she said was accurate. She indicated that she wasn't looking out the window; she was facing her mother. She had also never been in the Marcelli's back yard without permission. She had never used the Marcelli's part of [*5]the driveway except to back out. She stated that on August 2nd, 2008 when she received the letter from the Marcelli's lawyer she wasn't near her window and she never pointed at Ms. Marcelli. On re-direct Ms. Kelly indicated that the second time she removed the No Trespassing' sign Doreen Marcelli took her picture and said "now I am sending you to prison like your father".

The Court has found the testimony of both Doreen Marcelli and Kristi Kelly to be less than credible. It was also clear that much of Mr. Marcelli's testimony was hearsay, though not objected to by the People. However, Mr. Marcelli's version of that day's events is the most credible. It is clear from all testimony that this is a protracted neighbor dispute which has been going on for many years. The Court does not feel that either party is completely culpable or completely innocent in this regard.

CONCLUSIONS OF LAW:

The Defendant in this case has been charged with violating Penal Law section 240.26 sub.1. The Penal Law defines this offense as follows; a person is guilty of Harassment in the second degree when, with intent to harass, annoy or alarm another person:

He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or threatens or attempts to do the same;

The People in this case did not charge the Defendant with a general violation of

Penal Law section 240.26 rather they limited themselves to a violation of subdivision one of this section. Had the People elected to file an accusatory instrument charging the Defendant with violating Penal Law section 240.26 without further specification, the Court would have been able to view the evidence to establish a violation of any one of the subdivisions of the Harassment Statute. People vs. Todaro, 26 NY, 325, 330. The People elected not to do so. They elected to limit the theory of their case and chose to proceed on a more narrow theory of prosecution than permitted by the Penal Law. The People are thus bound by that theory. People vs. Martin, 2009 NY Slip Op. 29149, April 7, 2009, Appellate Division Second Department.

The last portion of subdivision one of section 240.26 is the portion that the Court must examine to determine whether the Defendant's conduct is culpable. This involves threats to strike, shove, kick or otherwise subject another to physical contact. While "genuine threats of physical harm" coupled with the requisite intent may fall within the scope of the statute, a single threat with nothing demonstrating that the threat was "either serious, should reasonably have taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst" is insufficient to support a conviction under this subdivision. People vs. Dietze, 75NY2d, 47, 53-54 (1989). The People must establish more than mere words which express "anger or annoyance in terms of the apparent bravado, particularly in the absence of proof of any further words or acts tending to confirm the criminal nature of the act charged", People vs.Todaro, 26NY2d 325,308 (1970). The People have elicited testimony from the Complainant concerning prior bad acts of the Defendant involving the Complainant. The People assert that these prior incidences between the Defendant and Complainant then demonstrate the Defendant's "intent" for the accused violation before the Court. This argument proffered by the [*6]People would have much greater impact on the Court were it to be deciding on the general violation of Penal Law section 240.26; however the Court is constrained to view Defendant's conduct on the date in question within the confines of subdivision 1 of the statute. The Court's focus therefore is on the "threat" itself and whether or not there are any further words or acts which tend to confirm "the violation", see People vs. Todaro supra. The testimony elicited by the Complainant to bolster the People's case concerns prior acts, not acts which occurred either simultaneously or soon thereafter from the initial outburst. The Court is reluctant to allow prior bad acts to bootstrap the People's case. The Court likens the Defendant's outburst to the Todaro case, (see supra) which involved a teenager who is angered at being arrested and expresses anger in a negative way. Here we have a young woman (approximately 20 years old) who just received a letter from the Complainant's attorney threatening civil and criminal action and who responded instantly in a negative fashion albeit inappropriately with a "crude outburst", (see Deitze supra). This is not to say the Defendant's actions were not disrespectful, inexcusable and even deplorable. They were; however, the Court does not find them criminal.

The Defendant should not interpret this Decision as a victory; indeed had the People proceeded under a general violation of Penal Law section 240.26, the Court would have decided quite differently. The Court suggests the Defendant use this as an opportunity to change her behavior and learn to coexist with her neighbors.

The Court finds the Defendant NOT GUILTY of violating Penal Law section 240.26 sub 1.

The foregoing shall constitute the Decision and Order of the Court.

__________________________

Heather L. Kitchen,

Town Justice