People v. Fair

• Decision Date: 25 July 1969
• Citation: 60 Misc.2d 305,302 N.Y.S.2d 654
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Oliver FAIR, Defendant.
• Court: New York County Court

Page 654

302 N.Y.S.2d 654

60 Misc.2d 305

The PEOPLE of the State of New York, Plaintiff, v. Oliver FAIR, Defendant.

Schuyler County Court.

July 25, 1969.

John LoPinto, Ithaca, for defendant.

William N. Ellison, Dist. Atty., Schuyler County, Watkins Glen, for the People.

DECISION

LISTON F. COON, Judge.

Defendant demurs to an indictment charging him with aggravated harassment pursuant to Penal Law, Section 240.30(2).

The charging clause of the indictment reads as follows: 'The said Oliver Fair on or about the 25th day of September, 1968, at his home in the Town of Catharine, in the County of Schuyler and State of New York, with intent to harass, anoy (sic) and alarm another person did make a telephone call to one John Van Buskirk with no purpose of legitimate communication and wherein no conversation ensued.'

It is defendant's contention that the indictment is demurrable because it does not appear that the receipt of the call occurred within this county and that the crime, if it occurred at all, occurred where the complainant received the call. He is correct that the place where the call terminated is not identified so that for all purposes here it must be assumed that the said Van Buskirk was not within the county when he received the call.

Defendant relies upon a series of cases involving obscene and malicious telephone calls wherein the jurisdiction of the court was in issue, citing People v. Daly, 154 Misc. 149, 276 N.Y.S. 583; People v. Anonymous, 52 Misc.2d 772, 276 N.Y.S.2d 717 and People v. Brown, 53 Misc.2d 343, 278 N.Y.S.2d 321. However, the issue in those cases was whether or not jurisdiction rested in the courts at the place where the complaints of calls were received. These decisions to not stand for the reverse proposition that jurisdiction does not lie at the place where the call was placed, except for the dictum used by Judge Heffron in People v. Anonymous, Supra to the effect that under former Penal Law, Section 555, the crime could be committed only in one jurisdiction which necessarily was the place where the call was received.

The People argue on this demurrer that jurisdiction lies either at the place where the telephone call originated or where it terminated, relying apparently upon Code of Criminal Procedure, Section 134, which provides that, 'When an offense is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.'

Upon a demurrer to facts stated in the indictment must be assumed to be true as well as everything that can be implied by fair and reasonable intendment from those facts. (People v. Cadle, 7 A.D.2d 65, 180 N.Y.S.2d 576).

Thus the issue is squarely presented whether a defendant in this jurisdiction who forms an intent to harass, annoy and alarm another person and then makes a telephone call to that person for no legitimate purpose of communication commits 'acts * * * constituting, or requisite to the consummation of the offense.'

Application of Section 134 of the Code has not been without differences of judicial opinion in its interpretation. (See e.g., People v. Kohut, 49 Misc.2d 1035, 269 N.Y.S.2d 350; revd. 25 A.D.2d 10, 266 N.Y.S.2d 141; revd. 17 N.Y.2d 705, 269 N.Y.S.2d 715, 216 N.E.2d 708.)

It is clear that not every act, occurrence, or effect in some way connected with the commission of a crime is jurisdictionally significant. (Murtagh v. Leibowitz, 303 N.Y. 311, 101 N.E.2d 753, 30 A.L.R.2d 1259). To be of significance, it must be established that the alleged jurisdictional incident was 'essential in the consummation of the crime alleged in the indictment.' (People v. Mitchell, 49 App.Div. 531, 535, 63 N.Y.S. 522, 524, aff'd 168 N.Y. 604, 61 N.E. 182). Conversely, if the act is not part of the offense defined in the statute, it is not 'requisite to the consummation of the offense.' (People v. Mitchell, 168 N.Y. 604, 607, 61 N.E. 182, 184).

Other decisional criteria are that the complained of act or acts within a jurisdiction be 'indispensable' to the commission of a crime (People v. Fowler, 152 N.Y.S. 672, 31 N.Y.Crim.Rep. 95), that what is done in the county that takes jurisdiction is 'a substantial act of wrong, and not merely some incidental thing, innocent in...