People v. Masullo, 2007 NY Slip Op 51296(U) (N.Y. Just. Ct. 6/26/2007)
| Decision Date | 26 June 2007 |
| Docket Number | 06100076. |
| Citation | 2007 NY Slip Op 51296 |
| Parties | PEOPLE OF THE STATE OF NEW YORK, v. JOHN A. MASULLO, Defendant. |
| Court | New York Justice Court |
Robert E. Mayes, Esq., Assistant District Attorney, Office of the Westchester County District Attorney, Mount Kisco, New York.
Defendant is charged with two counts of violating Penal Law §240.26(3), harassment in the second degree, and two counts of Penal Law §215.50(3), criminal contempt in the second degree, based upon an alleged violation of a Family Court Order of Protection. Defendant moves to dismiss the complaint pursuant to C.P.L. §170.30(1)(a) upon grounds of facial insufficiency. With regard to the harassment charges, defendant maintains that the words that allegedly constitute harassment were uttered for a "legitimate purpose" and were constitutionally protected, and that the allegations of a course of conduct as required by the statute are insufficient, non-specific, and conclusory. Defendant further maintains that since the charges of criminal contempt in the second degree are based upon the harassment charges, the contempt charge must also be dismissed. The People oppose the motion to dismiss.
For the reasons set forth herein, viewing the facts in a light most favorable to the People, the Court finds that the allegations in the accusatory instruments are facially sufficient, and therefore, defendant's motion to dismiss is denied.
A Family Court Order of Protection entered on July 27, 2006 orders the defendant to "[r]efrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any other criminal offense against [the complainant.]"
On October 4, 2006, defendant was charged by criminal complaint with two counts of harassment in the second degree and two counts of criminal contempt in the second degree based upon the allegations made by complainant in a supporting deposition.
According to the complainant, on October 2, 2006, at about 6:45 a.m., the defendant "was in my face making animal noises like an inch away from me." This conduct made the complainant feel "intimidated," so she grabbed the phone intending to call the police. At that point the defendant told her that she "better put that phone down," to which she complied, "because I figured that he would have grabbed it and made a big scene after that." She decided that it was best for her to leave. The complainant further alleges that
In her supporting deposition, the complainant further alleges that on October 4, 2006 at about 4:45 p.m., defendant began yelling at her about a letter sent by her lawyer to a Judge, the condition of her car, and money issues. Defendant then went outside and stated, in proximity of their son and his friend, that the complainant was the "town hoe." Defendant then went inside and "continued to rant" and called complainant "liquor and B.Y.B." The complainant further alleges that defendant continually calls her "Goldie" in front of the children, and has told the children "that he calls me Goldie because I am a dog and I am supposed to fetch." The supporting deposition alleges that these words make her feel "degraded," "frustrated," "seriously annoyed," and "stressed."
The criminal complaint contains both an accusatory part and a factual part. The accusatory part sets forth the designated offenses by name, statutory section, and recites the elements of the offenses. The factual part contains the complainant's statement to support the charges.
Under Penal Law §240.26(3), "[a] person is guilty of harassment in the second degree when . . . with intent to harass, annoy or alarm another person, he or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."
The statute requires proof that the defendant engaged in more than an isolated verbal or physical act. The term "course of conduct" has been defined as "a pattern of conduct composed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose in the mind of the actor." People v. Hotchkiss, 59 Misc 2d 823, 824, 300 N.Y.S.2d 405 (Co. Ct. Schulyler Co. 1969). Where a defendant's actions are "calculated and deliberate" in relation to the victim, a one-time act may be sufficient to establish a "course of conduct" under the statute. People v. Tralli, 88 Misc 2d 117, 387 N.Y.S.2d 37 (App. Term 9th and 10th Judicial Dist. 1976). However, a single emotional outburst, no matter how abusive and cruel, is not criminal under the harassment statute. People v. Hogan, 172 Misc 2d 279, 664 N.Y.S.2d 204 (Crim. Ct. Kings Co. 1997); People v. Zito, 2001 WL 1263340 (City Ct. New Rochelle 2001).
Under the harassment statutes, a communication that serves "no legitimate purpose" has been held "to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." People v. Shack, 86 NY2d 529, 538, 634 N.Y.S.2d 660 (1995). A defendant's use of vulgar and abusive language to express frustration about court-ordered child support payments, has been held to be communication with a "legitimate purpose," and may not serve as a basis for criminal prosecution for harassment. People v. Zullo, 170 Misc 2d 200, 650 N.Y.S.2d 926 (Dist. Ct. Nassau Co. 1996).
While the use of vulgar, derisive language may be constitutionally protected by the First Amendment, these "protections have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses." People v. Shack, 86 NY2d 529, 535, 634 N.Y.S.2d 660 (1995). "An individual's right to communicate must be balanced against the recipient's right to be let alone' in places in which the latter possesses a right of privacy. . . , or places where it is impractical for an unwilling listener to avoid exposure to the objectionable communication." Id. 86 NY2d at 536....
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