Harassment Charge for Spitting at Officer Is Upheld

, New York Law Journal

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A prosecutor's charge of second-degree harassment was facially sufficient for a man accused of spitting in a police officer's face, according to a state judge. Davon Simmons faces one count of second-degree harassment after allegedly spitting at a New York City police officer, which hit the officer's face and mouth, in October 2012.

Criminal Court Judge John Wilson (See Profile), sitting in the Bronx, on Dec. 6 denied a defense bid to deem the charge facially insufficient under Penal Law §240.26(1). The judge said that pursuant to the statute, someone is guilty of second-degree harassment 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."

In People v. Simmons, 2012BX059103, Wilson called spitting an "ancient offense," adding that "since the act of spitting into another's face is clearly a form of physical contact, the broad language of PL Sec. 240.26(1) 'otherwise subjects such other person to physical contact' would naturally and obviously include such offensive conduct. To hold otherwise would be a denial of common sense and firmly established principles of jurisprudence."

Bronx assistant district attorney Suzanne Carmody appeared for the prosecution. Alec Pine of the Legal Aid Society represented Simmons.

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