| Matter of Shane EE. |
| 2008 NY Slip Op 01479 [48 AD3d 946] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of Shane EE., a Person Alleged to be a JuvenileDelinquent. Stephen B. Flash, as Assistant County Attorney of Tompkins County, Respondent;Shane EE., Appellant. |
—[*1] Jonathan Wood, County Attorney, Ithaca (Stephen B. Flash of counsel), forrespondent.
Kane, J. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered December 19, 2006, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 3, to adjudicate respondent a juvenile delinquent.
Over the course of two months, while riding on the same school bus, respondent called thevictim several names. Some of those names indicated a bias against her based upon her race,color and gender. At one point, respondent told the victim, "I've got a gun with your name on it."Another time, he stared at her and stated, "we shoot niggers like you in the woods." Based uponthese incidents, petitioner commenced this proceeding alleging that respondent committed actswhich, if committed by an adult, would constitute the crime of aggravated harassment in thesecond degree. Following hearings, Family Court adjudicated respondent a juvenile delinquentand imposed a conditional discharge with 75 hours of community service. Respondent appeals.
The petition contained adequate allegations of criminal conduct to provide Family Court withjurisdiction. Respondent contends that the petition failed to make out the elements of aggravatedharassment in the second degree, thereby rendering it jurisdictionally defective. As [*2]limited by the petition, that crime is established when a person,"with intent to harass, annoy, threaten or alarm another person, . . . [s]trikes, shoves,kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do thesame because of a belief or perception regarding such person's race, color, . . . [or]gender" (Penal Law § 240.30 [3]). The petition alleged, among other things, thatrespondent, with the requisite intent, called the victim racial and gender-based epithets,threatened to shoot her because of her race and threatened to punch her in the face. Theseallegations included all of the elements of the alleged offense, rendering it jurisdictionallysufficient.
We reject respondent's argument that his threats and racial slurs constituted protected speechunder the 1st Amendment. In addition to threatening physical harm, the language at issue here isso personally and racially offensive that it was "likely to provoke the average person toretaliation, and thereby cause a breach of the peace" (Chaplinsky v New Hampshire, 315US 568, 574 [1942]; see People v Dietze, 75 NY2d 47, 52 [1989]; Matter of Corey v Corey, 40 AD3d1253, 1255 [2007]). Such language is not considered privileged free speech, and mayconstitutionally be proscribed by the government.
Family Court's determination was supported by legally sufficient evidence and not againstthe weight of the evidence. The evidence plainly showed that respondent at least intended toannoy or alarm the victim with his repeated name-calling and threats of physical harm (seeMatter of Kyle L., 268 AD2d 836, 837-838 [2000]). The racial and gender-based character ofthose names was circumstantial evidence sufficient to show that his actions were motivated bybias or prejudice (see People vMarino, 35 AD3d 292, 293 [2006]; People v Russell, 13 AD3d 267, 268 [2004], lv denied 4NY3d 856 [2005]; People v Pirozzi, 237 AD2d 628, 630 [1997], lv denied 90NY2d 909 [1997]). No physical contact occurred, but respondent's statements, "I've got a gunwith your name on it" and "we shoot niggers like you in the woods," constituted threats ofharmful physical contact. Although the victim testified that she did not fear that respondentwould actually shoot her, no particular feelings on the part of the victim are required(compare Penal Law § 240.30 [3] with Penal Law § 120.14). Thecourt believed the victim's testimony and did not believe several aspects of respondent'stestimony, specifically when he denied making any racial slurs or the threat regarding a gun.Viewing the evidence in a neutral light, while accepting these credibility determinations, theweight of the evidence supports a finding that respondent committed acts which would constitutethe specified crime (see Matter ofBrooke II., 45 AD3d 1234, 1234-1235 [2007]).
Contrary to respondent's final argument, Family Court did not err in refusing to dismiss thepetition at disposition. The Probation Department opined that respondent did not requireprobation supervision, but not that any form of supervision was unnecessary. The courtappropriately determined that respondent needed some form of supervision or treatment, andfollowed the Probation Department's recommendation of imposing a conditional discharge withsubstantial community service (see Family Ct Act §§ 352.1, 352.2 [1] [a]).
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.