People v. Zullo
| Decision Date | 27 September 1996 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Jane ZULLO, Defendant. |
| Court | New York District Court |
Barrocas, Ciesinski & Parker, L.L.P., Garden City (Sol Barrocas, of counsel), for defendant.
Denis E. Dillon, District Attorney of Nassau County, Mineola (Peter J. Gannon, of counsel), for plaintiff.
Defendant, Jane Zullo, the divorced wife of the complainant, George Hom, is charged under Docket No. 07229/96 with the crime of Aggravated Harassment in the Second Degree under Penal Law § 240.30(1), a Class A Misdemeanor.
She seeks a pre-trial dismissal of the information in the furtherance of justice pursuant to § 170.30(1)(g) and § 170.40 of the Criminal Procedure Law. The People oppose the application.
On February 11, 1996, the complainant, the non-custodial parent, during visitation took his nine year old daughter to the store and purchased a gift for her to take to a party to which she had been invited. The cost of the gift and wrapping totaled $50.00 which he unilaterally deducted from his Court ordered $800.00 per month child support.
The complainant subsequently forwarded the defendant a check in the sum of $750.00. Upon receipt, defendant, upset at the deduction, called the complainant. The complainant allegedly hung up. The defendant called again seeking an explanation from the complainant regarding the deduction. The complainant failed to answer the phone. As a result the defendant left a message on his answering machine wherein she protested the reduction and called the complainant an "asshole," "jerk," and a "god damn idiot."
The defendant was arrested and charged with Aggravated Harassment. She makes application for dismissal.
The defendant argues that her calling the defendant names such as "jerk," "asshole" and "god damn idiot" is constitutionally protected speech and cites in support People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989). In Dietze, the Court of Appeals held that vulgar, derisive language is constitutionally protected public speech.
The Court distinguishes Dietze from the present case. Here the communication occurred in the home of the complainant and not in a public forum. The complainant enjoyed an expectation of privacy, for which the defendant could be criminally liable if the electronic intrusion crosses an objective threshold.
The People in their opposition to the defendant's application contend that the message left by the defendant was directed to an unwilling audience and therefore violated his privacy. In support the People cite People v. Miguez, 147 Misc.2d 482, 556 N.Y.S.2d 231 (N.Y.City Crim.Ct.1990).
The Court distinguishes Miguez, supra, from the instant case. The Miguez case involved a series of phone calls and messages left on the complainant's answering machine. The complainant, an ex boyfriend of the defendant, was clearly an unwilling audience who desired no contact with the defendant. There was clearly an intent to annoy or harass the complainant.
In the present case there is one message protesting the unilateral and unauthorized reduction in child support. The parties by virtue of the frequency of visitation must communicate with each other. One isolated incident is not legally sufficient to sustain a conviction for harassment. People v. Chasserot, 30 N.Y.2d 898, 335 N.Y.S.2d 442, 286 N.E.2d 925 (1972).
Viewing the facts and circumstances of this case in a light most favorable to the People, it is clear that the charge must be dismissed as a matter of law. C.P.L. § 170.30(1)(a) and 170.35.
The gravamen of Penal Law Section 240.30(1) is that simultaneous with the electronic communication, there exists requisite intent and lack of legitimate purpose. People v. Fair, 60 Misc.2d 305, 302 N.Y.S.2d 654 (1969). The telephonic communication must be directed towards an unwilling listener and...
To continue reading
Request your trial
-
People v. Hogan
...Indeed, many people seem hardly able to speak an English sentence without the use of at least one four letter word. In People v. Zullo, 170 Misc.2d 200, 650 N.Y.S.2d 926 (Dist.Ct. Nassau Cty.1996), a defendant was prosecuted for calling her ex-husband about his remitting a support payment c......
-
Durie v. State
...convinced that any of the phone calls in question were shown to be made `solely to harass.'" Id. Similarly in People v. Zullo, 170 Misc.2d 200, 650 N.Y.S.2d 926 (N.Y.Dist.Ct.1996), the court dismissed aggravated harassment charges against Zullo for leaving her ex-husband a voice mail messag......
-
People v. Masullo, 2006 NY Slip Op 52597(U) (N.Y. Just. Ct. 6/26/2006)
...to be communication with a "legitimate purpose," and may not serve as a basis for criminal prosecution for harassment. People v. Zullo, 170 Misc 2d 200, 650 N.Y.S.2d 926 (Dist. Ct. Nassau Co. While the use of vulgar, derisive language may be constitutionally protected by the First Amendment......
-
People v. Masullo, 2007 NY Slip Op 51296(U) (N.Y. Just. Ct. 6/26/2007)
...to be communication with a "legitimate purpose," and may not serve as a basis for criminal prosecution for harassment. People v. Zullo, 170 Misc 2d 200, 650 N.Y.S.2d 926 (Dist. Ct. Nassau Co. While the use of vulgar, derisive language may be constitutionally protected by the First Amendment......