People v. Shack

• Decision Date: 02 November 1995
• Citation: 86 N.Y.2d 529,634 N.Y.S.2d 660,658 N.E.2d 706
• Parties: , 658 N.E.2d 706 The PEOPLE of the State of New York, Respondent, v. Julian SHACK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 660

634 N.Y.S.2d 660

86 N.Y.2d 529, 658 N.E.2d 706

The PEOPLE of the State of New York, Respondent, v. Julian SHACK, Appellant.

Court of Appeals of New York.

Nov. 2, 1995.

Kevin Costello, Flushing, for appellant.

Richard A. Brown, District Attorney, of Queens County, Kew Gardens (Alexander H. Gardner and Steven J. Chananie, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant appeals from an order of the Appellate Term affirming his conviction, upon a jury verdict, of violating Penal Law § 240.30(2), aggravated harassment in the second degree. The statute provides: "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he * * * [m]akes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication."

Defendant contends that the statute violates the United States and New York State Constitutions because it prohibits constitutionally protected speech, and because it violates his constitutional right to due process. Defendant also maintains that the information charging him with commission of the crime lacked sufficient specificity because it failed to set forth the dates and times of his alleged criminal conduct. Finally, defendant complains that he was deprived of a fair trial because the complaining witness was permitted to testify in violation of the psychologist/patient privilege set forth in CPLR 4507. We hold that the statute is not unconstitutional and find no merit in defendant's remaining contentions. Accordingly, the order of the Appellate Term should be affirmed.

I

Defendant Julian Shack suffers from mental illness, a fact which he concedes and which was the centerpiece of his defense at his trial. Complainant Diane Buffalin, defendant's first cousin, is a psychologist who lives and practices in Michigan. In June of 1990, defendant placed a telephone call to Buffalin at her home seeking information regarding his illness and medications and posing questions that arose from his treatment with a psychiatrist in New York. Buffalin, who had had no contact with defendant during the 12 years preceding this phone call, tried to answer his questions. Defendant apparently obtained some benefit from speaking with her, and upon his request she agreed to a continued telephone relationship with him, so long as he remained in treatment with his psychiatrist and continued taking his medication. From June through October, they spoke on the telephone approximately twice each week, and, during a visit to New York that summer, Buffalin "connected" defendant with an anxiety clinic at a New York City hospital.

Toward the end of October of 1990, defendant informed Buffalin that he was "doing better" and that he had stopped taking medication. She told him that because he was not taking his medication, she no longer welcomed his calls. In response, defendant advised Buffalin that if he ever got angry with her, he could burn down the house of her elderly father (his uncle), who lived in New York City. Through November and into December, defendant continued to call Buffalin. She repeatedly advised him that she did not want to speak with him if he was not taking his medication.

At the end of November, Buffalin informed defendant that she would be undergoing major surgery and told him not to call her during her two-week period of recuperation. On the day of her surgery, defendant called Buffalin three times, and he continued to place calls to her home repeatedly and regularly thereafter. From December 12 through the end of that month, he placed 88 phone calls to her home, sometimes calling as many as seven times a day. Defendant left messages on Buffalin's answering machine, asserting that if she refused to take his calls, he would begin to place repeated calls to her adult daughter, her mother-in-law and her father. In December, Buffalin wrote defendant a letter in which she tried to make it clear to him that his calls were unwanted, and she advised defendant that she would file a criminal complaint against him if he did not stop calling her.

Defendant continued to telephone Buffalin and records for his residence in Queens County indicate 185 calls to her residence between December 12, 1990 and May 20, 1991. Defendant left messages in which he stated that if she refused to speak with him, he would sell her telephone number to a "pervert" who would delight in calling and upsetting her, that he would place dozens of phone calls to other family members and that he would call the Michigan licensing board to have her psychologist's license revoked. Buffalin telephoned defendant once in January to implore him to stop calling, and on several occasions she called him and replayed the taped messages of his calls so that he would know that evidence against him was being gathered. Nevertheless, defendant continued to place calls to Buffalin's home until May of 1991, when Buffalin came to New York and filed a criminal complaint against him. Defendant was arrested, prosecuted and convicted on one count of aggravated harassment in the second degree and sentenced to three years of probation.

II

Defendant challenges the constitutionality of the statute on several grounds. ¹

A

Defendant's first claim is that the statute is facially unconstitutional because it impermissibly infringes the freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution and article I, § 8 of the New York Constitution. Even if not facially unconstitutional, defendant maintains that it is unconstitutional as applied to him.

Penal Law § 240.30(2) does not prohibit speech or expression--on its face, its proscription is limited to conduct (making a telephone call without any legitimate purpose of communication). The limiting clause which expressly excludes constitutionally protected speech from its reach plainly distinguishes this statute from those which impose criminal liability for "pure speech" (see, e.g., People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 [use of "abusive language"]; Cohen v. California, 403 U.S. 15, 18, 91 S.Ct. 1780, 1784-1785, 29 L.Ed.2d 284 [an epithetic phrase worn on a jacket was not "offensive conduct"]; see also, Walker v. Dillard, 523 F.2d 3, cert. denied 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136, or "expressive conduct" (see, e.g., Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 [displaying a peace symbol on an American flag]; cf., People v. Hollman, 68 N.Y.2d 202, 507 N.Y.S.2d 977, 500 N.E.2d 297 [nude sunbathing is not expressive conduct]. Accordingly, because Penal Law § 240.30(2) proscribes only conduct and expressly removes from its application "legitimate communication," defendant may not invoke the First Amendment or article I, § 8 of the State Constitution to support a challenge to the facial validity of the statute.

Moreover, even if Penal Law § 240.30(2) is construed to proscribe speech, a declaration of facial overbreadth does not automatically follow. Constitutional free speech 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"; a person's right to free expression may be curtailed "upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner" (Cohen v. California, 403 U.S. at 19, 21, 91 S.Ct. at 1785, 1786, supra). 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 (Rowan v. Post Off. Dept., 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736), or places where it is impractical for an unwilling listener to avoid exposure to the objectionable communication (see, Lehman v. City of Shaker Hgts., 418 U.S. 298, 302-303, 94 S.Ct. 2714, 2716-2717, 41 L.Ed.2d 770). Under some circumstances, the privacy right may "plainly outweigh" the free speech rights of an intruder (see, Federal Communications Commn. v. Pacifica Found., 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073). As the Rowan Court noted in regulating unwanted mail, permitting communications to be foisted upon an unwilling recipient in a private place would be tantamount to licensing a form of trespass, and thus "a mailer's right to communicate must stop at the mailbox of an unreceptive addressee" (Rowan v. Post Off Dept., 397 U.S. at 736-737, 90 S.Ct. at 1490, supra).

The Rowan analysis may be extended to Penal Law § 240.30(2). Manifestly, an individual has a substantial privacy interest in his or her telephone; in the context of a telephone harassment statute, the device is easily conceptualized as the functional equivalent of the mailbox. Thus, to the extent Penal Law § 240.30(2) limits a caller's right to free speech, it permissibly subordinates that right to the recipient's right to be free of unwanted telephone calls. The statute is narrowly drafted and furthers the State's compelling interest in protecting its citizens from "persons who employ the telephone, not to communicate, but for other unjustifiable motives" (United States v. Lampley, 573 F.2d 783, 787; see also, Gormley v. Director, Conn. State Dept. of Probation, 632 F.2d 938, 941, cert. denied 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485).

Nor is the statute unconstitutional as applied to defendant, because it did not subject him to criminal liability for engaging in protected speech; his liability arose from his harassing conduct, not from any expression entitled to constitutional protection. Although defendant claims that he had a legitimate purpose because he placed his calls seeking help for his illness, that argument addresses only those telephone calls placed before Buffalin told him to stop calling her. The manner and substance of defendant's calls changed...