People v. Miguez

• Decision Date: 25 May 1990
• Citation: 147 Misc.2d 482,556 N.Y.S.2d 231
• Parties: PEOPLE of the State of New York v. Lourdes MIGUEZ, Defendant.
• Court: New York City Court

Page 231

556 N.Y.S.2d 231

147 Misc.2d 482

PEOPLE of the State of New York v. Lourdes MIGUEZ, Defendant.

Criminal Court of the City of New York New York County, Part AP 17.

May 25, 1990.

Robert M. Morgenthau, Dist. Atty. by Robert Tendy, Asst. Dist. Atty., New York City, for the People.

Henry Putzel, III, Morvillo, Abramowitz & Grand, P.C., New York City, for defendant.

HARVEY GLASSER, Judge.

Defendant Lourdes Miguez is accused of multiple counts of aggravated harassment (Penal Law Sec. 240.30(1)) in two separate dockets involving the same complainant.

Docket number 9N094637 charges that "between March 7, 1988 and August 25, 1988, defendant did call deponent daily on a repeatedly [sic ] basis, leaving messages on deponent's machine and calling deponent on a paging device, interrupting him in his professional capacity as a doctor."

Docket number 9N092819 charges three counts of aggravated harassment. The first count alleges that on August 14, 1989, the defendant called the complainant on the telephone and "stated, in substance; 'Please don't hurt me anymore. You've hurt me enough, I still love you.' " The second count alleges that on June 30, 1989, the defendant left a message on the complainant's answering machine, "the substance of which was, 'Your girlfriend is a mean, ugly, selfish bitch.' " The third count charges that on October 2, 1989, the defendant left a message on the complainant's answering machine, "the substance of which was, 'Eddie I want to give you my number; even if you don't call me, I want you to have it.' " The complaint adds "that defendant has made numerous other communications with deponent at the above mentioned address, said communications dating back to March, 1988."

The defendant now moves to dismiss the information on the grounds that "the recently-rendered opinion of the New York Court of Appeals in People v Jackie Dietze, 75 NY2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166, precludes prosecution for such conduct." Defendant interprets Dietze as prohibiting only "words which by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace." Defendant argues that, since she is charged with no more than placing a series of telephone calls that annoyed the complainant, she cannot be prosecuted for those calls. That is all the more so, she contends, because the statements that were found to be constitutionally protected in Dietze were "far more aggravated" than the communications she is charged with making. The defendant claims that, in essence, the instant informations charge her with no more than "communicating, by telephone, to a man whom she loved, 'the earnest expression of [her] personal opinion or emotion.' "

The People counter by distinguishing between section 240.25(2) of the Penal Law, held to be unconstitutional in People v. Dietze, and PL Sec. 240.30(1), charged in the instant informations. They argue that, whereas Sec. 240.25(2) was deemed overbroad because it "prevented constitutionally protected public speech or expression," Sec. 240.30(1) only proscribes "communications directed at an unwilling listener under circumstances wherein 'substantial privacy interests are being invaded in an essentially intolerable manner.' "

In People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989), supra, the Defendant, knowing the complainant and her son were mentally retarded, came to her doorway and, facing the street, called the complainant a "bitch" and her son a "dog." The defendant was charged, inter alia, with harassment under PL Sec. 240.25(2). That section provides that "[a] person is guilty of harassment when, with intent to harass, annoy or alarm another person ... In a public place he uses abusive or obscene language, or makes an obscene gesture...." (Emphasis added.) The Court of Appeals held that section 240.25(2) is "invalid for overbreadth" because it proscribed speech that was only abusive. In contrast, the instant informations charge violations of PL Sec. 240.30(1), which provides:

[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he: 1. Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone in a manner likely to cause annoyance or alarm....

Whereas public speech that is " 'abusive'--even vulgar, derisive, and provocative" may be protected, People v. Dietze, 75 N.Y.2d at 51, 550 N.Y.S.2d 595, 549 N.E.2d 1166, the possession of a telephone does not "constitute an open invitation to uninvited abuse." People v. Cirruzzo, 53 Misc.2d 995, 999, 281 N.Y.S.2d 562 (District Ct. Nassau Co. 1967). Such "trespass by telephone" constitutes a violation of privacy. Id. Therefore, although the statement allegedly made by defendant Miguez that "Your girlfriend is a mean, ugly, selfish bitch" may be similar in content to the statement made in Dietze, the statements are not analogous because of the difference in the circumstances under which they were made.

As to the other two statements alleged in docket number 9N092818, the defendant claims that she was merely communicating to a man...