In People v. Dietze, 75 NY2d 47, 549 N.E.2d 1166, 550 N.Y.S.2d 595 (1989), the defendant was charged with an earlier version of the harassment statute (P.L. 240.25) for calling the complainant a "bitch" and threatening to "beat the crap" out of her. The Court held that the statute was unconstitutionally overbroad because it restricted use of "abusive language." The court reasoned that "casual conversation or banter may also be intended to annoy, but may not be criminalized unless the communication presents a clear and present danger of serious and substantive harm." In People v Dietze, under a prior harassment statute, Penal Law 240.25, the Court of Appeals reviewed a defendant's conviction on the following facts: knowing that the complainant was retarded, and having been previously warned by a police officer not to argue with the complainant, defendant nevertheless confronted her on the street, calling her a "bitch," and her son a "dog." As the defendant further screamed that she would "beat the crap out of complainant some day or night on the street" (at 50), complainant ran away in tears. The Court of Appeals concluded (at 54), "While genuine threats of physical harm fall within the scope of the statute, such an outburst, without more, does not." A majority declared the statute unconstitutional on its face and stated that speech may be forbidden or penalized only if it reasonably places the recipient in fear of immediate danger of severe harm. A concurring opinion by Chief Judge Wachtler concluded that the statute should not have been invalidated, but agreed that the communication under review did not rise to that level. The Court of Appeals reversed the defendant's conviction of Penal Law 240.25 (1), the predecessor in content of the current statute, not because the defendant only uttered words (that she would "beat the crap out of" the complainant "some day or night in the street") but because the utterance was not proven to be "either serious, should reasonably have been taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst" . The Court of Appeals declared the Harassment section 240.25(2) of the Penal Code unconstitutional, finding that unless prohibited speech "presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" and that to prohibit abusive, vulgar or obscene language in public because it harassed, annoyed or alarmed another person infringed on an individual's protected right to Free Speech. (Dietze at 51). Even so, the court did acknowledge that imminent "genuine threats of physical harm fall within the scope of the statute" PL 240.251 and therefore, outside the purview of the First Amendment protections. (Id at 54). The Court stated that: "A person is guilty of harassment when, with intent to harass, annoy or alarm another person; "(2) In a public place, he uses abusive or obscene language, or makes an obscene gesture." In Dietze the defendant had been found guilty of harassment based upon his threat to " 'beat the crap out of the complainant some day or night' " (at 50). In reversing, the Court of Appeals held that "any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace" (see Dietze, supra, at 52). The Court further held that the defendant's threat, while abusive and annoying, did not fall within the scope of "constitutionally proscribable expression" (at 51).