Juvenile Convicted For Using The “N” Word

There are many reasons not to use the “N” word. One of which is Aggravated Harassment In the Second Degree (Penal Law § 240.30). Take the case of Matter of Shane Ee., 2008 NY Slip Op 01479 decided by the Third Department last Thursday.

In that case, the juvenile Shane Ee, over the course of two months, while riding on the same school bus, called the victim several names. Some of those names indicated a bias against her based upon her race, color and gender. At one point, the juvenile told the victim, “I’ve got a gun with your name on it.” Another time, he stared at her and stated, “we shoot niggers like you in the woods.”

Based on these incidents the juvenile was charged with Aggravated Harassment In the Second Degree, which provides that a person is guilty of that offense when:

with intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct (Penal Law § 240.30 [3]).

In upholding the juvenile’s conviction, the Court reject his argument that his threats and racial slurs constituted protected speech under the 1st Amendment. The Court stated:

In addition to threatening physical harm, the language at issue here is so personally and racially offensive that it was likely to provoke the average person to retaliation, and thereby cause a breach of the peace (quotes and citations omitted). Such language is not considered privileged free speech, and may constitutionally be proscribed by the government.

The Court also found that the evidence was legally sufficient and that the verdict was not against the weight of the evidence:

The evidence plainly showed that respondent at least intended to annoy or alarm the victim with his repeated name-calling and threats of physical harm. The racial and gender-based character of those names was circumstantial evidence sufficient to show that his actions were motivated by bias or prejudice. No physical contact occurred, but respondent’s statements, “I’ve got a gun with your name on it” and “we shoot niggers like you in the woods,” constituted threats of harmful physical contact. Although the victim testified that she did not fear that respondent would actually shoot her, no particular feelings on the part of the victim are required. The court believed the victim’s testimony and did not believe several aspects of respondent’s testimony, specifically when he denied making any racial slurs or the threat regarding a gun. Viewing the evidence in a neutral light, while accepting these credibility determinations, the weight of the evidence supports a finding that respondent committed acts which would constitute the specified crime.

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