People v. Anonymous
| Decision Date | 10 November 1965 |
| Citation | 276 N.Y.S.2d 717,52 Misc.2d 772 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. ANONYMOUS, Defendant. |
| Court | New York City Court |
Michael F. Dillon, Dist. Atty., of Erie County, Julian F. Kubiniec, Asst. Dist. Atty., of counsel, for the People.
John Lloyd Egan, Buffalo, for complainant.
Albert J. Rydzynski, Buffalo, for defendant.
Trial was held in this Court without a jury on the 15th day of October, 1965. At the end of the People's case defendant moved for a dismissal of the charge. The defendant was charged with a violation of Sec. 555 of the Penal Law, making a threatening telephone call to the complainant and using obscene language to a member of the female sex. Decision was reserved on defendant's motion and each side was requested to file a memorandum of law by 10--23--65.
The motion to dismiss was based on two grounds: 1st that the court had no jurisdiction unless the people proved as a part of their case that the call originated within the territorial limits of the City of Buffalo, and 2nd that the language used was not a threat to commit a crime against a person nor was the language used obscene as defined in the various decisions.
The defendant's first objection is rejected. Although the presence of the accused within the territory in which he is accused is considered essential, such presence need not be actual; it may be constructive. 'The theory of the law is that where one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies the agency to the point where it becomes effectual.' 21 Amer.Jur.2d Sec. 386, 156 A.L.R. 862ff. In the case at bar for the purpose of making out a prima facie case it would make no difference if the call originated in one of the suburbs, another county or even in Canada. If the defendant talked into a dead phone in any of those places regardless of threats or obscenity there would be no crime. But talking into a LIVE phone connected with the complainant to whom threats and obscenities are conveyed, the crime if any is committed by the defendant at the point where complainant received the call and in this case in the City of Buffalo in the Ellicott Square Building. Strassheim v. Daily, 221 U.S. 280, 284, 31 S.Ct. 558, 55 L.Ed. 735. See also 4 Wharton's Criminal Law and Procedure, Sec. 1506. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114.
Defendant's second objection must also be rejected.
Complainant testified among other things that the defendant said to her, 'I'll string you up by the toes and throw you into the river.' There can be little question that these words contain a threat to commit a crime against the person of the complainant.
The question of whether or not calling a married female a 'whore', or a 'prostitute', or a 'bitch' is obscene is more difficult to determine.
In the 1963 N.Y. State...
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