Prosecution for Alleged Stalking/Harassment of Israeli Tourists in N.Y. on Oct. 18, 2023 Can Go Forward

From New York trial judge Althea Drysdale's opinion Tuesday in People v. Amin:

This case stems from an incident where the Defendant is alleged to have stalked, taunted, and harassed a group of Israeli citizens for over ten minutes while they were sightseeing in Times Square, culminating in the assault of one of the tourists. As part of his omnibus motions, the Defendant moves to dismiss the charges of Stalking in the First Degree …, Stalking in the Third Degree …, and Aggravated Harassment …, arguing that the prosecution elicited insufficient evidence to constitute the necessary element of a "course of conduct" for those crimes. [The decision appeared not to deal with the assault charge. -EV] …

Statement of Allegations

On Wednesday, October 18, 2023 at approximately 9:30pm, the Complainant, an Israeli citizen, was visiting New York City with a group of six friends when they decided to stop by Times Square to sightsee. Several members of the group were wearing items that disclosed their religious affiliation: specifically, all five male members of the group were wearing "kippahs," traditional Jewish head-coverings also known as a "yarmulkes" as well as visible "tzitzits," which are strings that adorn the corners of a "tallit," a Jewish prayer shawl that is worn under clothing throughout the day.

After exiting the subway station located at 42nd Street and Times Square, the group was approached by a man, later identified as the Defendant, who appeared to be of Middle Eastern descent. The Complainant noticed that the Defendant was wearing what the Complainant described as a red and white "keffiyeh," a traditional headdress worn by men in the Middle East, around his head and face.

While the Defendant was initially playing what the Complainant described as "loud English music" on a speaker that he was carrying in his hand, the Complainant observed that, upon seeing the Complainant and his group of friends, the Defendant changed the music to a song in Arabic. Almost immediately after doing so, the Defendant said "Free Palestine" and stated that "the Jews have to die." The Complainant also recalled that the Defendant stated, in sum and substance, that he was "happy with what Hamas did to the Jews," and repeatedly yelled "Allah Kashi," which the Complainant understood to mean in Arabic "God is Great." The Complainant further heard the Defendant state that he was "willing to die for the sake of Gaza."

These actions took place over at least ten minutes and lasted the length of at least six city blocks. Video surveillance introduced as evidence in the Grand Jury shows the Defendant closely following the group for the entirety of this time, always directly behind the group despite the pedestrian walkway area appearing to be in excess of fifty feet wide in certain places. On several occasions, the Defendant is observed gesturing at the group while holding the speaker in one of his hands. At one point, the group deviates from their linear route and instead travels diagonally across a pedestrian area of Times Square, and the Defendant is observed changing his orientation so that he can follow the group diagonally on their new path.

When the group reached the TKTS Red Stairs, located at 47th Street in Times Square, the Complainant stated that he and his group approached a security guard to alert them to the Defendant's actions. According to the Complainant, the security guard approached the Defendant and instructed the Defendant to stop following the group and to leave them alone, to which the Defendant responded in sum and substance, "Jews are frightened people that are going and consulting with the police … let's see you now."

When the group doubled back and returned in the direction from whence they came, the Defendant, too, doubled back and followed behind them at a close distance. When the group stopped and yelled at the Defendant to stop following them, the Defendant allegedly responded, "Free Palestine." Another individual in the Complainant's responded [group -EV] yelled "Fuck Palestine" in response.

As the group continued to walk back towards the subway, the Defendant allegedly continued yelling "Hamas should kill more of you," and indicated that he was "happy with what Hamas did," and that he was "prepared to die for Hamas." After following the group around Times Square for an excess of twelve minutes, all the while allegedly shouting what could plainly be interpreted as Anti-Semitic and Anti-Israeli rhetoric, the Defendant is allegedly observed on video surveillance running up to the group and striking his arm forward in a punching motion towards the Complainant's head before running away. The Complainant stated that he suffered pain in his face as a result of the punch, and the Defendant was subsequently arrested on-scene.

The court rejected defendant's First Amendment claim:

The Court finds the defendant's argument that he was exercising his Constitutionally protected First Amendment right to freedom of speech [is] without merit. Payton ("While constitutionally protected activity has been specifically excluded in some anti-stalking statutes, New York's statute is broader. It prohibits a course of conduct or repeated acts occurring over a period of time which intentionally places another person in reasonable fear of physical injury."); see also People v. C.C. (Sup. Ct. Westchester Cty., 2016) ("But freedom of expression under the First Amendment has its limits. Banging on the window of a car with a person inside while daring him with epithets of foul abuse exceeds those limits. This is aggressive physical action in close proximity to a person, accompanied by threatening words, not just words alone.").

The court concluded that the prosecution had introduced "sufficient evidence of a hate crime":

[T]here was clearly sufficient evidence for a fact-finder to reasonably infer that the defendant both selected the complainants and committed the acts because of their protected characteristics. See e.g. People v. Morales (1st Dept. 2024) (Finding that the Defendant chose his victim in whole or substantial part based on their perceived sexual orientation when the Defendant shouted homophobic slurs at the victim immediately before shooting the victim in the face at point-blank range and subsequently made derogatory comments about the victim's significant other at the time of his arrest.)….

And the court rejected the defendant's argument that this was all one incident and therefore not a "course of conduct" for purposes of the stalking statute:

While "course of conduct" is not specifically defined within the stalking statute, Courts have routinely adopted the widely-accepted definition … [of] "course of conduct" as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." …

An "isolated incident" does not constitute a "course of conduct." See People v. Valerio (NY Ct. App. 1983) (Finding that shouting at a union official one time while picketing outside of a union headquarters did not constitute a "course of conduct" for the purposes of the harassment statute.); People v. Wood (NY Ct. App. 1983) ("Because no evidence was presented at trial that Defendant's conduct was anything other than an isolated incident, the People failed to establish that Defendant was guilty of harassment under the subdivision charged"). In situations evincing a short duration of time or a singular, isolated incident, Courts are less inclined to find that the Defendant's actions constitute a "course of conduct." See, e.g. People v. Barrow (Defendant's numerous threats to kill his neighbor, made in the course of a few minutes, did not establish a course of conduct); People v. Castro (Defendant's "spontaneous, emotional, verbal outburst consisting of repeated cursing occurring during one altercation, did not constitute a course of conduct pursuant to this section of the statute.").

However, Courts have recognized that incidents that occur within a short time frame can be considered a "course of conduct" for the purposes of the stalking statutes…. For example, in People v. Givens (Crim. Ct. Kings Cty. 2020) (Gingold, J.) the Court found that two telephone calls were sufficient to establish repeated acts or a "course of conduct." Courts have further held that "nine or more" phone calls over a two-day period of time would also suffice as a "course of conduct." In People v. Murray (NY Cty. Crim. Ct. 1995) (Stoltz, J.), the Court found that a "five to eight minute" interaction constituted a "course of conduct" when the Defendant followed the complainant to her office building, barred her from entering the building, continued to follow her as she retreated up the street, forcibly prevented her from obtaining assistance from other pedestrians, and ultimately attempted to drag her into Central Park….

In this instance, the Defendant allegedly taunted, threatened, and assaulted the complainants for over ten minutes while physically following them for multiple city blocks, all after being told by both the complainants and security personnel to stop. The Defendant clearly committed a "series of acts" by allegedly voicing multiple verbal threats, some of which wished death upon the complainants, playing what the Defendant self-described as "Hamas music," following the complainants for over ten minutes over the course of several city blocks, and eventually allegedly striking one of the complainants about the face.

These acts were "committed over a period of time," albeit a relatively short period of time, namely approximately twelve minutes. In determining the significance of that twelve-minute time frame, the Court will take into consideration the alarming number and varying type of harassing actions committed throughout that time span. The content of the Defendant's statements and actions throughout this period of time clearly evince a "continuity of purpose." For these reasons, the Court finds that the Defendant's alleged conduct throughout this incident clearly constitutes a "course of conduct" as intended by the legislature.

Assistant D.A. Edward Smith represents the prosecution.