People v. Yablov

• Decision Date: 24 February 2000
• Citation: 183 Misc.2d 880,706 N.Y.S.2d 591
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>SHIELA YABLOV, Defendant.
• Court: New York Criminal Court

183 Misc.2d 880

706 N.Y.S.2d 591

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.SHIELA YABLOV, Defendant.

February 24, 2000.

Glenn A. Wolther, New York City, for defendant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Jonathan Konovitch of counsel), for plaintiff.

OPINION OF THE COURT

CAROL R. EDMEAD, J.

On August 14, 1999, defendant was arrested and charged with Penal Law § 240.30 (1), aggravated harassment in the second degree. On September 27, 1999, the People filed and served an amended complaint adding Penal Law § 240.26 (1), harassment in the second degree. The complaint alleges that after the complainant ended his romantic relationship with the defendant, defendant left a series of messages on the complainant's answering machine over a 17-month period. On one occasion, from approximately 6:00 P.M. until 6:00 A.M., the complainant received at least 22 calls from the defendant.

Defendant now moves to dismiss the information for facial insufficiency pursuant to CPL 170.35 (1) (a) and 100.40, and violation of constitutional rights under the First and Fourteenth Amendments of the United States Constitution and article I, §§ 8 and 11 of the New York Constitution.

Defendant challenges the sufficiency of the accusatory instrument, arguing that the communication and/or speech complained of does not establish each element of the crimes of harassment and/or aggravated harassment. Defendant also challenges whether her behavior rises to the level of harassment, thereby excluding it from the protections of freedom of speech of both the Federal and New York Constitutions.

The People do not address any of defendant's arguments in their response papers to defendant's omnibus motion. They simply state that the information meets the requisite standard for facial sufficiency.

With respect to the charges of harassment and aggravated harassment, this court finds that defendant's actions, albeit offensive and obnoxious, were not criminal within the meaning of the harassment laws. Therefore, defendant's motion to dismiss the charges in the accusatory instrument for facial insufficiency is granted.

Analysis

I. Facial Sufficiency

An information is sufficient on its face if it contains nonhearsay allegations of an evidentiary nature that provide reasonable cause to believe the defendant committed every element of the offense charged. (CPL 100.15 [3]; 100.40 [1] [a], [c]; People v Alejandro, 70 NY2d 133, 137 [1987]; People v Hall, 48 NY2d 927 [1979].) Allegations provide reasonable cause "when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight or persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." (CPL 70.10 [2].) Therefore, the facts may establish a prima facie case, for purposes of pleading an offense, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. (People v Jennings, 69 NY2d 103, 115 [1986].)

II. Facial Sufficiency of the Accusatory Instrument

Defendant argues that the complaint is facially insufficient because the People have failed to establish that the statements and actions made by defendant constitute harassment—aggravated or otherwise.

The entire factual portion of the accusatory instrument states:

"Deponent states that deponent has known defendant since 1991, that deponent ended his relationship with the defendant in March of 1998, that between March 1998 and August 1999 deponent received a series of annoying, threatening and unsolicited phone communications from the defendant, as more fully described below, and that on each occasion the deponent recognized the voice of the caller to be that of the defendant.

"Deponent further states that in March of 1998, deponent received a phone call from defendant at deponent's home and that defendant left a message on deponent's answering machine, stating in substance, `IF I DON'T GET THE MONEY YOU MAKE TOMORROW, I' `L [sic] GO TO THE NEXT STEP. I HAVE SO MANY IRONS IN THE FIRE, YOU DON'T KNOW WHAT THE FUCK IS GOING

ON! YOU'LL BE VULNERABLE. WE'LL GET YOU DAVID, WE'LL GET YOU!'

"Deponent further states that in April of 1998, deponent received a phone call from defendant at deponent's home and that defendant left a message on deponent's answering machine, stating in substance, `PAY ME OR SEE ME! I LAID IT RIGHT ON THE LINE FOR YOU.'

"Deponent further states that on July 25, 1998, at approximately 21:02 hours, deponent received a phone call from defendant at deponent's home and that defendant left a message on deponent's answering machine, stating in substance, `DAVID—DAVID—DAVID—FUCK YOU DAVID! ARE YOU THERE? IT'S 9 PM SATURDAY NIGHT. ARE YOU OUT DRINKING, DANCING, CAROUSING? FUCK YOU! FUCK YOU!'

"Deponent further states that on July 25, 1999, beginning at 17:58 hours, and continuing through the night until 5:58 hours on July 26, 1999, defendant called deponent at deponent's home at least 22 times."

This court determines that, for purposes of defendant's motion, viewing the allegations in the accusatory instrument as true, as required at this juncture, the complaint is facially insufficient to charge defendant with harassment or aggravated harassment.

The court reaches its determination by analyzing harassment and aggravated harassment in a legislative and historical perspective, as well as applying the statutes to the facts in this case.

III. Legislative History

The violation of harassment was first enacted as part of the New York Penal Law in 1965. (See, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 240.26, at 381.) The offenses included ranged from acts as serious as physical attacks on others to the use of abusive or obscene language. A recent New York Law Journal article stated that: "[t]he initial study bill submitted to the Legislature consisted of 11 provisions, including threatening telephone calls, jostling, confidence games, false reports to law enforcement agencies and indecent exposure. Seven of these, however, were extracted: six because they were `deemed to proscribe conduct too serious for "harassment's" limited penalty,' and one—involving `annoying taunts or challenges' was `simply abandoned because of its triviality.'" (Abramovsky, The Charge and Misuse of Harassment, NYLJ, Sept. 8, 1997, at 3, col 1.) In 1992, the Legislature again revisited the offense of harassment, the challenge being to give effect to the statute but to avoid bringing in a large volume of trivial personal arguments within the ambit of the criminal law. (See, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 240.26, at 381.)

Three years prior to the 1992 revision, the New York Court of Appeals changed the course of the harassment statute in People v Dietz (75 NY2d 47 [1989]).

The Court of Appeals has held that vulgar and offensive words are protected speech under the New York State and Federal Constitutions unless the speech is over and above that. (People v Dietz, 75 NY2d 47, 52 [1989], supra ["(a)ny proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace"].) The Court held that speech may only be forbidden or penalized if it manifests itself to the extent the individual feels he or she is in immediate danger of severe harm. (Supra.) The defendant called the complainant a "bitch" and her son a "dog" knowing that the complainant was retarded and notwithstanding the fact that the defendant had been warned by a police officer to cease arguing with the complainant in the future. The complainant ran away from the defendant in tears as the defendant was screaming that she would "`beat the crap out of [the complainant] some day or night on the street.'" (Supra, at 50.) The Court found that although clearly "abusive" and "coarse," "insulting" and "harsh," defendant's language constituted protected expression under the time-honored principles underlying free speech as guaranteed by the First Amendment. (Supra, at 51.)

The parameters of the harassment statute are enunciated well in People v Malausky (127 Misc 2d 84, 86 [Rochester City Ct 1985]): "That the facts alleged may describe annoying behavior is not enough to support prosecution of the charge * * * [i]n a free society, such as ours, citizens are subjected to a degree of annoying behavior which, most likely, in a police State would not be tolerated. But merely because a person behaves in an immature, immoderate, rude or patronizing manner which annoys another is not enough to cause the actor to suffer criminal sanctions. He must intend that such behavior annoy, harass or alarm another. This court will condone neither poor judgment nor bad taste. But, by the same token, this court will not criminalize such behavior where to do so would exceed the fair import of the statutory language defining the offense harassment."

IV. The Harassment Statutes

A. Penal Law § 240.30 (1)

Penal Law § 240.30 (1) provides:

"A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:

"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."

Two recent criminal court cases that are illuminating but not controlling are People v Price (178 Misc 2d 778 [1998]) and People v Miguez (147 Misc 2d 482 [1990], affd on other grounds 153 Misc 2d 442 [1992]). In Price, as in the instant case, defendant was charged, inter alia, with Penal Law § 240.30 (1), aggravated harassment in the second...