Criminal law isn't my bailiwick but... "or (3) by words or other conduct that person recklessly places another person in fear of imminent physical injury."
When Herz stated "was that serious" there is grounds to argue he feared imminent physical injury or a 4th degree assault occurred.
[is it legal to record another person, even in public, if they do not know you are recording them?]
Yes.  There is generally low/no expectation of privacy in public places.  While it wouldn't be legal to record in one's home or office public places like stairwells, entrances, and of course sidewalks are perfectly legal places to record information be it audio or video.  This is doubly true for journalists as the very nature of their profession involves such actions.  IIRC, it is always presumed any interaction between a government official and a member of the press as "on the record" unless otherwise stipulated even in the privacy of the official's office or home.