People v. Dupont

• Decision Date: 07 March 1985
• Citation: 486 N.Y.S.2d 169,107 A.D.2d 247
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard DUPONT, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 169

486 N.Y.S.2d 169

107 A.D.2d 247

The PEOPLE of the State of New York, Respondent, v. Richard DUPONT, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 7, 1985.

M. Weldon Brewer, New York City, of counsel (Ramsey Clark and M. Weldon Brewer, New York City, attorneys) for defendant-appellant.

Bruce Allen, Syracuse, of counsel (Mark Dwyer, Asst. Dist. Atty., New York City, with him on the brief; Robert M. Morgenthau, Dist. Atty., New York City, attorney) for respondent.

Before CARRO, J.P., and BLOOM, FEIN and MILONAS, JJ.

FEIN, Justice.

Defendant appeals from a judgment of Supreme Court, New York County, rendered June 16, 1982, convicting him, after trial, of two counts of aggravated harassment and one count each of attempted grand larceny in the third degree, tampering with a witness, falsely reporting an incident in the third degree and harassment. Defendant was sentenced to four consecutive one-year terms of imprisonment on the first four counts and concurrent, lesser terms on the remaining convictions. (Defendant's term is actually two years. Penal Law § 70.30[2][b] ).

The conviction for aggravated harassment (Penal Law § 240.30, since redesignated aggravated harassment in the second degree) for distributing the magazine entitled Now East should be reversed, the sentence imposed thereon should be vacated and the judgment should otherwise be affirmed.

At the outset it must be noted that defendant was neither charged with nor found guilty of writing, editing or publishing this magazine. His alleged crime under this count was solely for distributing it, which he concedes.

Defendant was charged, in part, with distributing the magazine with intent to harass and annoy the complainant. All of the charges arose out of a dispute defendant had with the complainant, his former attorney, over whether the attorney should continue representing defendant in a real estate matter. When the attorney flatly refused, defendant began a campaign to convince him to change his mind. As time went by, with direct contacts failing to achieve the desired goal, defendant apparently became more and more frustrated. His tactics expanded in frequency and variety, to the point where he threatened and attempted on several occasions to embarrass the attorney in the eyes of his associates, clients and friends. The totality of defendant's activities, covered by the other counts, need not be elaborated upon here, except for the charge at issue.

Prior to defendant's distribution of the offensive material, it is alleged that he threatened the attorney on the telephone, in June 1979, that defendant would soon be coming out with a book which would be an expose of the attorney's alleged homosexual lifestyle, replete with cartoons and pictures. The attorney says he hung up on this call, but shortly thereafter received a 7-page mailgram from defendant echoing this threat. In the mailgram defendant indicated he would now be increasing the size of the book. The title would include the attorney's name in a homosexual context. The book would be "compliment[ed] [sic]" with 16 cartoons, some of which defendant described in detail, which would graphically depict the attorney's homosexual lifestyle. Copies of the book would be sent to "judges, lawyers, district attorneys, attorney generals, and perhaps a few senators". Defendant also had a mutual acquaintance attempt to intercede on his behalf with the attorney. This mutual friend testified that he informed the attorney in September 1979 that defendant sounded quite distressed, and that "something would be done in the form of literature, of print-outs, of advertisement and of gags" if the attorney did not change his mind.

The attorney testified that sometime in June of 1980 he received another telephone call in which defendant said that he had "finished the book", and that it contained not only articles, but a number of cartoons which would be "completely embarrassing, sexually embarrassing, embarrassing in every way" to the attorney, his clients and friends. Defendant allegedly promised to distribute this "magazine or book ¹ all over New York, all over the world", to everybody he could find who knew or did business with the complainant's firm. The attorney testified that defendant told him the magazine was "just as filthy as [defendant] could make it." When the attorney flatly rejected one last entreaty to take up defendant's case again, defendant allegedly said "all right. Then the magazine is ready to go."

The attorney first saw this magazine, entitled Now East, on June 29, 1980. A number of copies had been left in bundles outside his law office. Between then and September 1980 the attorney came across copies of the magazine in at least 15 locations around town, including restaurants and the homes of various friends and clients. The attorney claimed to have seen defendant himself distributing copies outside a restaurant where the attorney was having a luncheon party. On other occasions the attorney saw the magazine being distributed at a charity award ceremony where he was being honored, and at a bat mitzvah he was attending for the daughter of one of his law partners. Although the subject matter is the same as the book defendant supposedly had been working on, there is no identity of the magazine title with the purported title of the book. Only one of the cartoons described in the mailgram appears in the magazine. In addition to the magazine's cartoons, which depict the attorney in an uncomplimentary light, there are pejorative articles about him and some of his clients, as well as references to the real estate dealings which were the subject of the original attorney-client relationship between the attorney and defendant.

Defendant denied that he had made any arrangements to publish a book about the attorney, but only because of lack of resources, notwithstanding his assertions to the contrary in the June 1979 mailgram. He also denied having originated the cartoons described in the mailgram. Defendant further denied having anything to do with the publication of this magazine. He said he had found the magazine, to his "delight and surprise", in boxes on Christopher Street in Greenwich Village on the eve of the "Gay Parade", and had taken a number of boxes (three) and distributed copies as widely as possible to the news media. He denied delivering any to the complainant's law firm. He admitted that he delivered a copy to the district attorney's secretary, but only when he was informed that the attorney was going to have him prosecuted.

The tenth count of the 14-count indictment charged that defendant, from June 29 to October 29, 1980, "with intent to harass, annoy, threaten and alarm another person, communicated and caused to be initiated a written communication with [the complainant], to wit: a magazine entitled 'Now East', in a manner likely to cause annoyance and alarm." This charge tracks the language of § 240.30 of the Penal Law.

We are of the opinion that the acts described ² do not constitute a violation of the statute. Penal Law § 240.30 makes it a class A misdemeanor when anyone,

"with intent to harass, annoy, threaten or alarm another person ...

"1. Communicates or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm".

Throughout the history of the harassment statute in its various forms running back more than a century, it has not been applied to make the mere distribution of printed material a crime. A review of the cases reveals that prior versions of the statute have classically been applied as a protection against the coercive threats of the incessant bill collector (see, e.g. People v. Globe Jewelers, 249 App.Div. 122, 291 N.Y.S. 362; People v. Wickes, 112 App.Div. 39, 98 N.Y.S. 163; People v. Loveless, 84 N.Y.S. 1114; 1929 Opns.Atty.Gen. 126, 127-29), or the violation of one's privacy by means of obscene telephone calls (People v. Cirruzzo, 53 Misc.2d 995, 281 N.Y.S.2d 562; People v. Anonymous, 52 Misc.2d 772, 276 N.Y.S.2d 717).

The early predecessors of the harassment statute were closely associated with the crime of attempted extortion (see Biggs v. People, 8 Barb. 547; People v. Griffin, 2 Barb. 427). In 1878 the Legislature enacted a prohibition against any threat to communicate, publish or otherwise use information, documents or statements allegedly injurious to the personal reputation or business standing of another, with intent to extort property or valuable benefit thereby (L.1878, ch. 288). Three years later, the codification of the penal law severed this connection between the threatening communication and the element of extortion (see People ex rel. Perry v. Gillette, 200 N.Y. 275, 93 N.E. 953), and made it a misdemeanor merely when any

"person who, knowing the contents thereof, sends, delivers, or in any manner causes to be sent or received any letter or other writing, threatening to do any unlawful injury to the person or property of another". (Penal Code of 1881, § 559.)

In 1891 this law was amended to include the sending of any "letter, postal card or writing", signed or unsigned, "with intent thereby to cause annoyance to any person" (L.1891, ch. 120). This was the version in which this statute appeared in the next codification, § 551 of the Penal Law of 1909. It was subsequently amended in 1917 to include abuse of process (cf. Foley v. Xavier, 104 App.Div. 1, 93 N.Y.S. 289). Combined with the statutory proscriptions against harassing telephonic communications (i.e., for malicious or illegitimate purpose), this is the form in which the class A misdemeanor of aggravated harassment emerged in the Penal Law of 1965 ( § 240.30), basically as it existed at the time of this prosecution.

The harassment statute, in its...