Eye on Eagle

People v. Anthony Lagano


People v. Anthony Lagano (decided December 13, 2022)

Issue: This appeal presented the question of whether threats to a former romantic
partner over the telephone in a single call that defendant was going to kill
complainant and her children constituted aggravated harassment.

Held: The evidence was legally sufficient to support defendant’s conviction for
second-degree harassment because a rational factfinder could have concluded that
defendant’s threats were not merely angry outbursts, but escalating threats of deadly
violence targeted at victim and her family. Penal Law § 240.26(1).

CAL observes: This appeal gave the Court an opportunity to address when speech
alone can amount to second-degree harassment.

Under the words of the statute, a person may be guilty of second-degree harassment
based on words alone, if, 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 attempts or threatens to do the same.” But the statute is constrained by
First Amendment protections. To satisfy constitutional speech guarantees, the threat
must be a “true threat,” and not merely angry words. The threats must be “genuine
threats of physical harm.” Lest idle threats during an argument amount to criminal
conduct, an outburst, without more, does not suffice. People v. Dietze, 75 N.Y.2d 47,
51-54 (1989).

In a unanimous open authored by Judge Rivera, the Court found that the threats here
qualified as harassment. Defendant and complainant had been involved in a romantic
relationship more than a year before the incident. Following the breakup, the two
remained in telephone contact. At some point, defendant became convinced that
complainant’s husband had been trying to extort him.

During a single heated phone call, defendant made several threats, first that her
children would get a bullet in their heads, then that he would firebomb her home, and
finally that he would kill the entire family. Judge Rivera concluded that this was not
just an outburst but escalating threats of violence. In concluding that the threats were
real, Judge Rivera cited to the angry tone of the call, defendant’s use of profanities,
and the fact that defendant threatened to use deadly violence. These facts, Judge
Rivera concluded supported a finding that “the statements were not said in jest.”
Of course, the fact that the statements were not made “in jest” does not mean that
they were imminent and serious. A person can make a threat in anger (and not jest),
that does not amount to a threat of physical harm.

Here, the threats were made during a single argument, and no acts were taken to
suggest that they were serious. While Judge Rivera and the Court obviously thought
these threats were intended to harass—they undoubtedly were—the decision leaves
guidance for when an angry argument where threats are conveyed is punishable as