contextual analysis in New York

2001Furthermore, the threats in People v Dietze (supra) and People v Todaro (supra) were found insufficient only “after a full contextual analysis at trial” (People v Prisinzano, 170 Misc 2d 525, 538-539 [Crim Ct, NY County 1996]).

1999In analyzing People v Dietze (supra), the court in Prisinzano (supra) explained that Dietze’s threat was “only determined to be a crude outburst after a full contextual analysis at trial * * * Dietze * * * demonstrates that resolution of whether words which are sufficient for pleading purposes are ultimately punishable speech is determined by a full contextual analysis by the fact finder at trial.” (People v Prisinzano, 170 Misc 2d, at 538-539 .) Accordingly, the defendant’s motion to dismiss the second count of the information, charging a violation of Penal Law § 240.26 (1), is denied.

2013To determine whether the record supports an inference that the requisite mens rea was present, we have employed a contextual analysis that turns on consideration of many factors, including “the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances” (Weaver, 16 NY3d at 128 ).

2006If not, then the determination reverts to the same contextual inquiry whether the handling of demolition debris at Kids Waterfront’s waste transfer station was- part of, ancillary to, or otherwise connected with demolition (Prats v Port Auth. of N.Y. & N.J., 100 NY2d at 881-883 ; Nagel v D & R Realty Corp., 99 NY2d at 102; Fitzpatrick v State of New York, 25 AD3d at 757 ; Lijo v City of New York, 31 AD3d at 504 ).

2006If not, then the determination reverts to the same contextual inquiry whether the handling of demolition debris at Kids Waterfront’s waste transfer station was- part of, ancillary to, or otherwise connected with demolition (Prats v Port Auth. of N.Y. & N.J., 100 NY2d at 881-883 ; Nagel v D & R Realty Corp., 99 NY2d at 102; Fitzpatrick v State of New York, 25 AD3d at 757 ; Lijo v City of New York, 31 AD3d at 504 ).

2006If not, then the determination reverts to the same contextual inquiry whether the handling of demolition debris at Kids Waterfront’s waste transfer station was- part of, ancillary to, or otherwise connected with demolition (Prats v Port Auth. of N.Y. & N.J., 100 NY2d at 881-883 ; Nagel v D & R Realty Corp., 99 NY2d at 102; Fitzpatrick v State of New York, 25 AD3d at 757 ; Lijo v City of New York, 31 AD3d at 504 ).

1999(See, e.g., People v Pirozzi, 237 AD2d 628 [2d Dept 1997]; People v Grupe, 141 Misc 2d, supra, at 9.) The resolution of whether ultimately it is punishable conduct must be determined “by a full contextual analysis by the fact finder at trial.” (People v Prisinzano, 170 Misc 2d 525, 539 [Crim Ct, NY County 1996].) For the purposes of facial sufficiency, the instant allegation that the defendant spit in the complainant’s face coupled with racial epithets is adequate and the defendant’s motion to dismiss this count is denied.

1996Yet, even the most seemingly provocative language, sufficient on the face of a pleading, may ultimately be found not to have been "fighting words” under a full contextual analysis; for example, if found to have been uttered in a joking or lighthearted manner or with " 'a disarming smile’ ” (Chaplinsky v New Hampshire, supra, 315 US, at 573 ).

1996(See, e.g., People v Cabot, NYLJ, Mar. 19, 1996, at 25, col 1 [App Term, 1st Dept]; People v Smith, 89 Misc 2d 789 [App Term, 2d Dept], cert denied 434 US 920 [1977]; People v McKay, 140 Misc 2d 696 [Nassau Dist Ct 1988].) Of course, evidence that the recipient of the threat was the person to whom it was directed, that the recipient or others took measures to protect against the threat, or that steps were taken toward carrying out the threat, may all be considered in the full contextual analysis of the fact finder, in reaching its determination as to whether the words were actual true threats.

1996(See, e.g., People v Cabot, NYLJ, Mar. 19, 1996, at 25, col 1 [App Term, 1st Dept]; People v Smith, 89 Misc 2d 789 [App Term, 2d Dept], cert denied 434 US 920 [1977]; People v McKay, 140 Misc 2d 696 [Nassau Dist Ct 1988].) Of course, evidence that the recipient of the threat was the person to whom it was directed, that the recipient or others took measures to protect against the threat, or that steps were taken toward carrying out the threat, may all be considered in the full contextual analysis of the fact finder, in reaching its determination as to whether the words were actual true threats.

1996(See, e.g., People v Cabot, NYLJ, Mar. 19, 1996, at 25, col 1 [App Term, 1st Dept]; People v Smith, 89 Misc 2d 789 [App Term, 2d Dept], cert denied 434 US 920 [1977]; People v McKay, 140 Misc 2d 696 [Nassau Dist Ct 1988].) Of course, evidence that the recipient of the threat was the person to whom it was directed, that the recipient or others took measures to protect against the threat, or that steps were taken toward carrying out the threat, may all be considered in the full contextual analysis of the fact finder, in reaching its determination as to whether the words were actual true threats.