People v. Reynolds

• Decision Date: 06 April 1990
• Citation: 554 N.Y.S.2d 391,147 Misc.2d 29
• Court: New York City Court
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Joseph B. REYNOLDS, Defendant.

Page 391

554 N.Y.S.2d 391

147 Misc.2d 29

The PEOPLE of the State of New York, Plaintiff, v. Joseph B. REYNOLDS, Defendant.

City Court of Watertown Jefferson County.

April 6, 1990.

Gary W. Miles, Dist. Atty. of Jefferson County by Bonnie Burgio, Asst. Dist. Atty., Watertown, for the People.

David J. Gruenewald, Jefferson County Public Defender by James P. McClusky, Asst. Public Defender, Watertown, for Joseph B. Reynolds.

JAMES C. HARBERSON, Jr., Judge.

FACTS

The defendant was charged with two violations of Penal Law Section 240.30(1). The defendant had, in 12/1/89 and 12/5/89, sent letters to the complainant which she received and read.

The first letter said the defendant was lifting weights frequently and was waiting with "great intensity" to "wrap my arms around you ONE MORE TIME". He also mentions a parole hearing the complainant had testified at against him and said when he got out he would find her. The letter concluded with a sarcastic comment about the complainant's daughter.

The second letter addressed to the complainant refers to "crimes of passion" and the defendant saying "I am willing to stake a claim that maybe something like that might happen", "you can run but you can't hide"; "you don't deserve to live" and "I have a lot of animosity but I am saving it for trial". (The complainant is a witness against the defendant on a charge of Robbery, first degree Penal Law 160.15(1) indicted by the Jefferson County Grand Jury on 12/14/89).

The second charge of Section 240.30(1) was based on a letter received 12/9/89 in which the defendant talked about her throat being cut and devoting the rest of his life to making her pay, concluding "you don't deserve anything except death which will be slow and painful".

LAW

Defendant moves this Court to dismiss the charges of Penal Law Section 240.30(1) based on the recent decision by the Court of Appeals in People v. Dietze, 75 N.Y.2d 47, 549 N.E.2d 1166, 550 N.Y.S.2d 595 which found Penal Law Section 240.25(2) (harrassment) unconstitutional.

In the cases of People v. Cross and People v. Blanchette, 147 Misc.2d 50, 554 N.Y.S.2d 388, decided recently in this court Penal Law Section 240.20(3) (disorderly conduct) was found unconstitutional because the proscribed conduct in Section 240.20(3) was identical to that in Section 240.25(2) found unconstitutional by Dietze.

In People v. Viau, 50 N.Y.2d 1052, 409 N.E.2d 1376, 431 N.Y.S.2d 702, the Court of Appeals decided that Section 240.30(1) did not apply to citizens' band radio transmissions. Chief Judge Cooke in a concurring opinion noted:

"However, as section 240.30 proscribes communications which are not necessarily obscene, it must be narrowly construed. The basis of the crime of harassment--a penal sanction that punishes the exercise of speech--is that the proscribed conduct is likely to lead to a breach of the peace. This rationale, of course, loses much if not all of its force where the language complained of is not heard by or directly aimed at the complainant. Thus, constitutionally protected speech which cannot incite to violence because it is not communicated to the complainant may not form the basis of a criminal prosecution (see Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284; Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031)." Viau, supra, 409 N.E.2d at p. 1378, 431 N.Y.S.2d at p. 703.

The Dietze majority specifically eschewed this position after acknowledging the limiting construction option of Chaplinsky and concluded to void section 240.25(2) because:

"... this Court's past decisions under section 240.25(2) ... have not succeeded in halting the prosecution thereunder of protected expression ..." and "... it is now imperative that we reach the constitutional issue ..." holding section 240.25(2) "invalid." Dietze, supra, 549 N.E.2d at p. 1169, 550 N.Y.S.2d at p. 598.

The inescapable implication of Dietze is that the verbal acts or gestures sought to be made unlawful by terms of sections 240.25(2) ("In a public place, he uses abusive or obscene language, or makes an obscene gesture.") are constitutionally protected speech under the Federal and State Constitutions and cannot be proscribed--at least by the terminology used in section 240.25(2).

Section 240.30 Aggravated Harassment in the second degree provides:

(1) "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, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm."

There is no question the concurring opinion of Chief Judge Cooke in Viau links the same harassing conduct defined by section 240.25(2) with the elements of a criminal charged under section 240.30(1). He castigated the majority for not protecting against harassment by allowing the mechanical device definition to include a citizens' band radio:

"That section 240.30 does not contain a laundry list of those devices through which harassing communications can be made grants courts no...