Owen Bancharan is charged with one count each of Aggravated Harassment in the Second Degree (PL § 240.30(3)) and Harassment in the Second Degree (PL § 240.26(2)). Bancharan was arraigned on July 23, 2022. The defense filed a motion to dismiss for facial insufficiency on December 1, 2022, which this Court denied orally on December 5, 2022. On January 3, 2023, the defense filed the instant motion for reconsideration. All submissions on the matter were completed by both parties on February 16, 2023.

Pursuant to Civil Practice Law and Rules § 2221(d)(2), a motion to reargue must be based on "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." The statute also states that such motion "shall be identified specifically as such." CPLR § 2221(d)(1). Bancharan's motion for reconsideration contends that the Court misapplied the law regarding facial sufficiency and the First Amendment of the U.S. Constitution. See Defense Motion to Reargue at 5-6. The Court has thoroughly reviewed the parties' submissions and all relevant case law, and finds that it has made no mistake of fact or law. Therefore, the defendant's motion to reargue is DENIED.

The factual portion of the People's information alleges as follows:

The deponent is informed by Tobias Novak that, at the above time and place, while the informant was praying and dressed in religious attire, the defendant did approach the informant and state, in sum and substance, I want to kill a Jew.

The deponent is further informed by the informant that the defendant's above-described conduct caused the informant to become alarmed and annoyed.

To be facially sufficient, an accusatory instrument must contain non-hearsay factual allegations of an evidentiary nature which establish every element of the offense charged. See People v. Hargrove, 47 Misc 3d 136(A) (App. Term, 2d Dept 2015). A court reviewing for facial sufficiency must view the [*2]allegations in a "fair and not overly restrictive or technical reading" such that the allegations of fact, when taken as true, "give the accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v. Casey, 95 NY2d 354, 360 (2000).

The accusatory instrument in the present matter meets the elements of both harassment statutes by describing a proximate, true threat of physical contact. Such a threat is facially sufficient if an "ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury, whether or not the defendant subjectively intended the communication to convey a true threat." People v. Hernandez, 7 Misc 3d 857, 860 (Crim. Ct., NY County 2005); see also People v. Limage, 19 Misc 3d 395, 398-99 (Crim. Ct., Kings County 2008) (text messages stating that the defendant was outside of the complainant's house and that she would end up in the hospital would reasonably cause the complainant to be immediately fearful for her life). According to the complaint, at the time the complainant is allegedly approached by Bancharan, he is dressed in religious attire and engaged in prayer. Such a statement would be reasonably interpreted as an immediate and true threat to a religious individual under the circumstances.

Bancharan also argues that these charges must be dismissed because his speech is constitutionally protected and that the Court misapplied the law pertaining to the First Amendment of the U.S. Constitution. See Defense Motion to Reargue at 5-6. The Court vehemently disagrees with Bancharan in this regard. Courts have historically balanced the interest in the freedom of speech with the listener's right to live without threats of imminent violence. See Chaplinsky v. New Hampshire, 315 U.S 568 (1942); Cohen v. California, 403 U.S. 15 (1971). For speech to be criminalized, "it must be more than mere abusive language, crude humor, or merely unpleasant communication." Limage, 19 Misc 3d at 397; see also People v. Dietze 75 NY2d 47, 51 (1989) (holding that even vulgar language, such as calling a cognitively disabled person a "dog," is protected, absent a true threat involving a "clear and present danger of some serious substantive evil"). A "true threat" includes "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Hernandez, 7 Misc 3d at 860 (2005); see also People v. Prisinzano, 170 Misc 2d 525, 535 (Crim. Ct. NY Co. 1998). The statement "I want to kill a Jew" falls squarely within these limits and outside the scope of language enjoying constitutional protection.

Finally, defense counsel argues that the Court misapplied the law because the complaint does not articulate why Bancharan believed the complainant was Jewish. See Defense Motion to Reargue, Exhibit A at 13. This is irrelevant, however, at the pleading stage. The plain language of P.L. § 240.30(3) indicates that a threat arising from a perceived religious practice or faith, even if perceived incorrectly, is within the ambit of the statute. Here, the complaint sets forth facts from which a perceived religious faith or practice can be inferred, namely, the complainant is identified as "praying and dressed in religious attire," coupled with Bancharan's statement expressing his desire to kill a Jewish person.

Accordingly, it is hereby:

ORDERED, that the defendant's motion to reargue the motion to dismiss the accusatory instrument for facial insufficiency is DENIED.