People v. Paradiso
| Decision Date | 06 December 1968 |
| Citation | 58 Misc.2d 370,295 N.Y.S.2d 561 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Jim PARADISO, Defendant. |
| Court | New York Court of Special Sessions |
William N. Ellison, Dist. Atty., for the People.
William G. Ruger, Watkins Glen, for defendant.
An information was filed with this Court by Sabatino DeDominics charging the defendant with violation of Section 240.25 of the Penal Law, paragraphs two and three, in that the defendant on the 18th day of September, 1968, at the residence of the complainant did wrongfully, unlawfully, wilfully, and knowingly use abusive and obscene language to the defendant which language was stated in detail in the Information. Complainant further alleged in the Information that 'there were small children and my tenant who lives in a trailer behind my house in the area where they could hear what was being said by the defendant.' The complainant did further allege 'By defendant course of conduct and repeatedly commits acts did alarm and seriously annoy me.'
The defendant through his attorney has made a motion to dismiss the Information on the following grounds:
1. The alleged harassment perpetrated by the defendant upon the complainant as set forth in the Information was not stated therein to be done with intent to harass, annoy or alarm the complainant as is required in the statute to make such conduct prosecutable under said statute and that the use of the terms wrongfully, unlawfully and wilfully are improper in that they are not terms used in Section 15.05 of the Penal Law wherein culpable mental states are defined for purposes of the Penal Law and the term knowingly is not synonymous with the term intentionally and that intention is a necessary element of proof in a prosecution for harassment.
2. That paragraph two of Section 240.25 makes the use of obscene language or an obscene gesture in a public place harassment if done with intent to harass, annoy or alarm another person and that the complainant's residence was not a public place.
3. That paragraph three of Section 240.25 makes the following of a person in or about a public place with intent to harass, annoy or alarm said person, harassment. That the Information does not allege that the defendant followed the complainant and in any event complainant's residence was not a public place.
As to the first objection, the Court would permit amendment of the Information to conform it to the requirements of the statute cf. People v. Easton, 307 N.Y. 336, 339, 121 N.E.2d 357, 358 wherein the Court said, 'Accordingly, as has elsewhere been held, a court has the power to amend an information even though the amendment may affect a matter of substance.' The remaining objections are of a more serious nature.
There is no question but what the Information alleges a violation under paragraph two of Section 240.25 of the Penal Law assuming that the Information is amended as above concerning intention, if the complainant's residence can be considered as a public place but if it is not, the Information will be defective as to both paragraphs two and three of said section as said paragraphs require that the occurrence takes place in a public place. The question of what constitutes a public place has presented difficulty to the Courts for many years. This question was often an issue in cases dealing with prosecution of disorderly conduct under Section 722 of the former Penal Law. It has been said of the offense of harassment that 'It proscribes conduct, largely of a public or semi-public nature, which ordinarily would constitute disorderly conduct if public alarm or disorder were intended or created but which does not amount to the latter because the act is of a kind that alarms or 'harasses' an individual rather than the public in general.' (See McKinney's Consolidated Laws of New York Annotated Vol. 39, page 159 published 1967.) Some cases dealing with the problem of what constitutes a public place under Section 722 of the former Penal Law were: People v. Chesnick, 1952, 302 N.Y. 58, 96 N.E.2d 87 where the use of obscene language in an apartment house hallway directed to the occupants of an apartment wherein the door was closed was held not to constitute disorderly conduct; the evidence showed that only the two occupants and one other tenant in the building heard the disturbance, People v. Perry, 1934, 265 N.Y. 362, 193 N.E. 175 where it was held that fighting in a restaurant that was closed to the public was not disorderly conduct though the event was witnessed by three customers who were not permitted to enter the premises; People v. Hipple, 1934, 263 N.Y. 242, 188 N.E. 725 where the defendant was inside of the doorway of a business building while a...
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...... I, therefore, affirm the Jury's finding that the incident of harassment in the two People v. Mulcahey cases occurred in a "public place". The case of People v. Paradiso, 58 Misc.2d 370, 373, 374, 295 N.Y.S.2d 370 (Court of Special Sessions of the Village of Watkins Glen 1968) provided an extensive discussion of the question and concluded that:. In the opinion of the Court, a private residence does not fall within the definition of a public place as defined in ......
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