As for what is stated in section 4.1 of the indictment – the derogatory names with which the defendant called his children – despite the ugliness of the act – do not refine the elements of the offense of threats, since they do not include expected harm to any of the children. In my opinion, even the statement that refers to the children's frequent visits to the bathroom is not a threat. I accept the defense's argument that this is an "angry reaction of a meticulous person" that does not violate the criminal prohibition set forth in section 192 of the Penal Law. With regard to the other statements attributed to the defendant in section 4.1 of the indictment, these are threats for all intents and purposes. Statements that "promise" to one of the children that the defendant will harm them (in various ways), while describing the acts that the defendant will commit against them, are statements intended to instill fear and terror of the evil that awaits them.
For the same reasons, even the statement mentioned in section 4.2 of the indictment, according to which if B does not act as he wishes, he will hurt her mouth/teeth, is a statement that perfects the elements of the offense of threats.
The offense of assault:
- In addition, the defendant is charged with assault offenses under aggravated circumstances. Section 378 of the Penal Law defines assault as:
"Anyone who strikes, touches him, pushes or otherwise exerts force on his body, directly or indirectly, without his consent or consent obtained by fraud – this is assault; and for this purpose, the use of force – including the use of heat, light, electricity, gas, smell or any other thing or substance, if they are used to the extent that it is capable of causing damage or discomfort."
Section 379 of the Penal Law states that:
"Anyone who unlawfully attacks his friend shall be sentenced to two years' imprisonment, and if this law does not prescribe a different punishment for this offense because of its circumstances."