People v. Cerbone

• Citation: 449 N.Y.S.2d 903,113 Misc.2d 740
• Parties: PEOPLE v. CERBONE.
• Decision Date: 23 April 1982
• Court: New York Town Court

Page 903

449 N.Y.S.2d 903

113 Misc.2d 740

PEOPLE v. CERBONE.

Town Court of the Town of Harrison.

April 23, 1982.

Carl Vergari and Nicholas Maselli, White Plains, for the people.

B. Anthony Morosco, White Plains, for defendant.

HARVEY J. FRIED, Town Justice.

Defendant has been tried on two informations charging him with harassment in that he is alleged to have directed abusive and obscene language at the complainants, in a public place, with intent to harass, annoy or alarm them.

At the outset, it is necessary to consider the precise elements of the charge both under the statute, Penal Law § 240.25(2) and under the Constitution particularly in view of defendant's claim that any words he may have spoken are shielded from prosecution by his First Amendment right of free speech.

The constitutional issue in this context does not appear to have been decided previously in this state. Guidance, therefore, must be found in a trilogy of United States Supreme Court decisions addressing the issue under similar statutes enacted in other states: Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) which upheld a defendant's conviction under a New Hampshire statute prohibiting the use of "offensive, derisive or annoying" words; Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), which reversed a defendant's conviction under a California law punishing the malicious and willful disturbance of the peace by offensive conduct; and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) in which the Supreme Court struck down a Georgia statute outlawing the use of "opprobrious words or abusive language, tending to cause a breach of the peace."

The common theme uniting the cases, despite superficially divergent results, is that the free expression of opinion cannot be abridged, however false, unpopular or even offensive the opinion may be; further, that the state lacks the power to punish the choice of words used to express those opinions, however, vulgar, insulting or even painful the words may be.

The cases recognize, however, a class of utterance which is not protected by the Constitution. These utterances are referred to as "fighting words" and have been defined by the Supreme Court to mean, those personally abusive words of epithets which, when addressed to a person of common intelligence and sensitivity, are inherently likely to provoke an immediate and violent reaction, i.e., a fight.

There are, of course, a great many opinions and a very great many offensive, personally distasteful words with which to express them, which may provoke a violent reaction in the listener. Yet, if those words serve to convey or dispute a viewpoint,--however disreputable that viewpoint--then the Constitution's protection is absolute. It is only where the words are uttered as a deliberate challenge to a breach of the peace, with communication of thought a mere incidental concomitant, that a prosecution may lie. The extreme example of such cases, of course, is that of the legendary western gunfighter taunting his reluctant victim into a fatal "first draw". It is to provide an alternative to the shootout, not to inhibit the exposition of thought, that we penalize the challenge.

In the case at bar, defendant is charged, in statutory language, with directing a series of abusive and obscene statements at the complainants for the purpose of harassing, annoying or alarming them. The gravamen of the offense, however, in order to pass constitutional muster cannot lie solely in the repugnancy of the words alleged or even in fact that they were intended to be offensive but rather in the fact, if it is a fact, that the offending words were calculated to provoke a reasonable person into an immediate and violent breach of the peace--and had no other purpose. This Court holds that Penal Law, Section 240.25(2), as so limited, is constitutional.

Having thus determined what it is that must be proven, we turn now to the facts.

It is perfectly clear that on the evening of October 25, 1981 at Finn's Tavern in Mt. Kisco, defendant directed heated language at the complainants. It is clear, too, that the language used met the every day meaning of "abusive" and "obscene". Although a great deal of trial testimony focused on whether or not a particular racial epithet was used, that issue really is quite beside the point from a legal although obviously not a moral or emotional standpoint.

As was implicit in the Court's analysis of the constitutional issues involved, there are no particular words which are "per se" ill...