People v. Livio

• Decision Date: 22 December 2000
• Citation: 725 N.Y.S.2d 785,187 Misc.2d 302
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>VINCENT LIVIO, Defendant.
• Court: New York District Court

187 Misc.2d 302

725 N.Y.S.2d 785

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.VINCENT LIVIO, Defendant.

December 22, 2000.

Joseph P. Famighetti, East Meadow, for defendant.

Denis E. Dillon, District Attorney of Nassau County, Hempstead (Peter Menoudakos of counsel), for plaintiff.

OPINION OF THE COURT

IRA J. RAAB, J.

"Sticks and stones may break my bones, but words will never harm me." (Children's taunt, Northrop, Folk Phrases [1894].) This case involves two fundamental legal principles in conflict with each other: a person's right to say what is on his or her mind, versus another person's right to be left alone. This court must decide whether the instant criminal information alleges facts which could show that the defendant exceeded his right to free speech and, by his words, crossed over into the realm of unlawful conduct. The words uttered by defendant telemarketer in doing his single telephone solicitations with each of two complainants who declined the sales offer constitute protected speech under the First Amendment of the Constitution of the United States and article I, § 8 of the Constitution of the State of New York. The motion made to dismiss the information for insufficiency is granted as the words "dumb nigger," though reprehensible, improper and uncalled for, do not rise to the level of aggravated harassment as defined by Penal Law § 240.30 (1).

The defendant, a home improvement telemarketer, is accused of two counts of aggravated harassment in the second degree, a class A misdemeanor, in violation of Penal Law § 240.30 (1), in that he made two separate telephone calls to each of the complainants for the purpose of selling home improvement items to them, and, when such services were declined, he called each one a "dumb nigger," and hung up.

The defendant claims that his comments constitute protected speech under the First Amendment's right of free speech and expression, and that an individual cannot be punished for biased thought or expression. Further, he contends that this case should be dismissed for legal insufficiency because there was no continuing series of calls evincing an intent to harass. The defendant seeks an order dismissing the accusatory instruments filed against him as being insufficient on their face, upon the ground that the allegations of the offenses charged do not constitute a violation of the statute. (CPL 100.15 [3]; 100.40 [1]; 170.30 [1] [a]; 170.35 [1] [a].)

The People claim that the informations should not be dismissed because they are sufficient, and thus there are no constitutional violations. The People contend that the defendant calling each complainant a "dumb nigger" is not protected speech because the State has an interest in protecting the rights of victims and discouraging crimes against them because of their race. Further, the People argue that there was intent on the part of the defendant to harass because this was not a single isolated incident, but rather, it was two separate incidents involving two separate complainants, although only one solicitation call was made to each complainant.

The determination of whether or not the information should be dismissed for insufficiency requires a careful analysis of the circumstances under which the defendant's statements were made.

The court makes the following findings of fact and conclusions of law:

Findings of Fact

The defendant is charged with two counts of aggravated harassment in the second degree for two separate incidents that occurred on June 17, 1998. The defendant was employed by a construction company as a telemarketer. His job was to do "cold-calling" to sell home improvement services. He telephoned each complainant in an attempt to sell such services. Both complainants separately refused to purchase home improvement services from defendant. When they did so, he called each one a "dumb nigger" and hung up. There are no further allegations of threatening or coarse language during the short duration of the respective phone calls.

On June 23, 1998, the defendant admitted to Detective David M. Ohayon that he did telephone each complainant and that he did call each complainant a "dumb nigger."

The defendant is a 49-year-old male with significant mental problems, who has been seen by a psychiatrist for many years and is under medication. In a letter from the defendant's therapist, Elise Thompson, she states that this is not defendant's usual manner of behavior, that he was under pressure the day he spoke with each complainant, and that the words were spoken out of frustration. Defendant's employment has always been in the telemarketing field, with no prior complaints from customers.

The Constitutions

The First Amendment of the United States Constitution guarantees "the freedom of speech." Article I, § 8 of the New York State Constitution provides:

"Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press."

The Statute

Penal Law § 240.30 (1) provides:

"A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:

"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."

Discussion

Before determining whether the use of the phrase "dumb nigger," standing alone, is statutorily permissible, the court must review the aggravated harassment statute itself, the primary purpose behind the statute, and any exceptions that have been carved out of the statute.

In order to convict someone under this statute, defendant must initiate a communication with the requisite intent to harass, while lacking a legitimate purpose for the communication. (People v Amalfi, 141 Misc 2d 940 [Rochester City Ct 1988].) That was not the crux of the conversation here. In this case, the defendant called the complainants for a legitimate business purpose and the conversations ended up with the words "dumb nigger." The calls were not "initiated" for the purpose of harassment, annoyance, threats or alarm, but rather for the legitimate purpose of soliciting business.

Defendant argues that the sufficiency of the accusatory instrument does not meet the standard required by the statute. "An information is sufficient on its face if it contains nonhearsay allegations of an evidentiary nature that provide reasonable cause to believe the defendant committed every element of the offense charged." (People v Yablov, 183 Misc 2d 880, 882 [Crim Ct, NY County 2000]; People v Oliveri, NYLJ, Sept. 20, 1999, at 29, col 5 [Crim Ct, NY County].)

The defendant relies on People v Zullo (170 Misc 2d 200 [Nassau Dist Ct 1996]) because it alleged merely a single incident, and there was not a continuing series of calls constituting a series of events evincing defendant's intent to harass, threaten or alarm another person. (People v Shack, 86 NY2d 529 [1995].)

In general, one isolated incident is not legally sufficient to sustain a conviction for aggravated harassment. (People v Chasserot, 30 NY2d 898 [1972].) However, criminal liability may be imposed for making a single telephone call only if the call is placed with requisite intent to harass, annoy, threaten or alarm, where there was a lack of legitimate purpose for the call in the first instance. (People v Liberato, 180 Misc 2d 199 [Crim Ct, NY County].) Had the defendant called a complainant without the solicitation of a sale, and simply said "dumb nigger" and hung up, that would show intent to harass. The Legislature intended to proscribe repeated calls to a residence that might drive a person to distraction. Telephone calls may be considered harassment when there is a barrage of threatening telephone calls by the defendant at all hours of the day and night. (People v Katz, 135 Misc 2d 857 [App Term, 1st Dept 1987].)

Thus, despite the statutory reference to a single telephone call, the statutory provision and its history readily permit characterization as a continuing offense over time. (People v Shack, supra.) Defendant, who made just one call with a brief solicitation to each complainant, does not establish a course of conduct. There was no continuing series of calls indicating intent on the part of the defendant to harass the complainants, nor was there any allegation that one single business solicitation evinced a lack of legitimate purpose. In the absence of the intent, there is no crime, even if the complainants felt harassed, annoyed, threatened or alarmed as a result of the defendant's telephone calls. (People v Amalfi, supra.) By including a specific intent element in the statute, the Legislature has removed the possibility that a defendant could be unaware of his criminal conduct. This specific intent element also removes the possibility that criminal liability would be imposed based on the unascertainable sensitivities of the victim. (People v Shack, supra.)

It is the obligation of courts to construe statutes to preserve constitutionality. (People v Dietze, 75 NY2d 47 [1989]; People v Smith, 89 Misc 2d 789 [App Term, 2d Dept 1977].) First Amendment freedoms must be given weighty consideration in balancing them against the interests underlying challenged statutes. (People v Dupont, 107 AD2d 247 [1st Dept 1985].) If a statute impedes First Amendment rights, it is unconstitutional on its face. The First Amendment to the United States Constitution prohibits Congress, and through the Fourteenth Amendment prohibits States, from abridging the right to free speech. Free expression of opinion cannot be abridged, however false, unpopular, or even offensive the opinion may be. The State lacks the power to punish the choice of words used to...