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On 29 July 1999, complainant was exiting the train station at 125th Street

On 29 July 1999, complainant was exiting the train station at 125th Street & Lexington Avenue when she saw the defendant. The defendant insisted on speaking with her but she told defendant that she had an appointment and walked back into the train station. As she was walking down the stairs to the train station, in a threatening tone of voice, the defendant stated that she should remember what he said to her about hurting his feelings and that she better not hurt his feelings. On 1 August 1999, the complainant was advised that the defendant had been looking for deponent at her residence on Ward’s Island. On 2 August 1999, at approximately 7:30 a.m., the defendant came to her residence on Ward’s Island and insisted that she speak with him. According to the complainant, in a telephone conversation, she told defendant she had nothing to say to him. The defendant then threatened her by saying that if he comes back he will not be alone and that if she goes out she should watch her back. On 11 August 1999, at approximately 9:30 p.m., the complainant was waiting for a bus at 125th Street and Lexington when the defendant approached her and insisted on speaking with her. At that time, defendant had his hands in his pockets, walked toward her in a threatening manner and stated that he needed to talk to her. However, defendant was prevented from coming too close to her because a friend of hers stood in front of her and blocked defendant’s way. She then ran onto the bus to get away from defendant. Thereafter, defendant began banging on the bus window and stated that she had to come outside because she had to see him. The defendant’s actions have placed the complainant in fear of physical injury.

Consequently, defendant was charged with aggravated harassment in the second degree, harassment in the first degree, and menacing in the third degree. Defendant now moved to dismiss the accusatory instrument for facial insufficiency.

Under the rules, in order for a misdemeanor information to be facially sufficient, it must conform to the requirements of CPL 100.40 and 100.15. The factual part of the information must allege facts of an evidentiary character supporting or tending to support the charges. These allegations, together with those of any supporting depositions must provide a reasonable cause to believe that the defendant committed the offense charged. Non-hearsay allegations of the factual part of the information, or of any supporting depositions, must establish, if true, every element of the offense charged.

On the aggravated harassment charge, second degree:

According to the defendant, the charge of aggravated harassment in the second degree must be dismissed because the accusatory instrument failed to allege that the defendant initiated the telephone conversation referred to in the accusatory instrument. It is not disputed that the telephone call was placed by the complainant and that the defendant did nothing to cause the complainant to initiate the call. However, according to the People, even where the complainant places the telephone call in question, a defendant nonetheless may be convicted of aggravated harassment in the second degree; and defendant’s threat to the complainant in the telephone conversation that occurred sometime between 4 and 6 of August was a communication proscribed by Penal Law merely because it occurred on the telephone.

Under the Penal Law, 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 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. As explained in The Commission Staff Notes of the Commission on Revision of the Penal Law, the subject charge was derived from former Penal Law entitled Malicious Telephone Calls, and that a person who maliciously uses any telephone instrument to make a call for the purpose of threatening to commit a crime against the person called or any member of his family or any other person or for the purpose of using obscene language to a person of the female sex or to a male child under the age of sixteen years is guilty of a misdemeanor. Thus, under the former statute, the defendant was required to initiate the telephone call in order to violate the statute. Under The Staff Notes, the proposed offense, however, is substantially broader than the collective existing pair. Nonetheless, only three decisions have addressed the issue of whether the statute was broadened enough to encompass the situation where it is the complainant who has placed the telephone call.

In the case of People v Amalfi which was decided in 1988, when the complainant called her former husband’s residence, she reached the defendant, the girlfriend of the ex-husband, who answered the telephone and threatened the complainant. There, the court found the information to be facially insufficient because the complainant initiated the communication, holding that aggravated harassment must involve initiation of a communication by a defendant. In that case, the court held that, because the present aggravated harassment statute transforms communications which might otherwise be considered simple harassments to misdemeanors, the more serious charge of aggravated harassment, with its increased penalties, was intended to protect privacy interests. However, there is no invasion of the complainant’s privacy where it is the complainant who makes the call. The court further held that it cannot perceive that there was a legislative intent to prevent an angry response to an annoying telephone call by the imposition of a criminal charge against the recipient of the telephone call.

Likewise, in the case of People v Rusciano which was decided in 1997, the information was deemed to be facially insufficient. There, after hearing the telephone ring once, the complainant utilized the *69 feature on her phone to return the call; the defendant, who was the complainant’s former boyfriend, answered and, during the course of the ensuing conversation, threatened that he can always find her and get his hands on her. In that case, the court held that the communication must be initiated by the defendant to come within the ambit of the subject Penal Law for aggravated harassment. According to the court, the gravamen of the crime of aggravated harassment was the use of the telephone, but for which the accompanying offending conduct would constitute, other elements being present, simple harassment. Since there was nothing inherently more evil in threatening or annoying someone over a telephone line than doing so face-to-face, the more severe criminal sanctions are clearly directed at the affirmative, not passive, use of the instrument by the offender. It is the additional harm inflicted by the intrusive quality of the act of telephoning that aggravates the harassment, and where the offensive remarks are uttered by the recipient of the call that additional harm is simply not present.

The People cited the case of People v McDermott which was decided in 1994. This case is in contrast with the abovementioned two decisions. In the case of McDermott, the information alleged that the defendant placed a help wanted ad in Newsday. When the complainant responded to the advertisement, the defendant asked lewd, sexually explicit questions. There, also, the defendant cited the case of Amalfi to argue that the information was insufficient because he had not initiated the telephone call. In that case, the court concluded that a person need not initiate a telephone call in order to violate the subject Penal Law provision for aggravated harassment.

Nevertheless, the court declines to follow the broad holding of the case of McDermott, which would appear to sweep any abusive telephone conversation within the scope of, regardless of how that conversation came about. This is not to say that the Penal Law provision for aggravated harassment can never be violated where the complainant places the phone call in issue. To the contrary, where a defendant intentionally precipitates telephone contact from the complainant in order to use the instrumentality of the phone for the purpose of communicating threats or abuse, a circumstance not alleged here, the statute may well be violated. Indeed, even on the facts of the McDermott case, the court might well have sustained the charge of aggravated harassment on the theory that the defendant in that case caused the harassing communication to be made by directly soliciting the call from the complainant, a rationale not explored by the court in McDermott. In this regard, the case of People v Diraimondo, decided in 1997, is instructive.

In the case of Diraimondo, the complainant received several telephone calls asking for sexual favors after the defendant posted signs at a train station stating that “4 Hot Easy Sex” or for other specified sexual acts to call the complainant’s phone number. In that case, the court rejected the defendant’s argument that the information was facially insufficient because it did not sufficiently allege that the defendant communicated or caused a communication to be initiated. According to the court, focusing on communication initiated by mechanical or electronic means or otherwise, the allegations in the information were sufficient to establish that the defendant’s acts caused the obscene telephone communications.

Here, however, since the defendant is alleged neither to have placed the telephone call in question nor to have caused the call to be made, his conduct cannot be said to fall within the proscription.

Accordingly, the charge of aggravated harassment was dismissed. The court declined to adopt so broad an interpretation and found the first count to be facially insufficient.

On the harassment, first degree:

According to the defendant, the charge of harassment in the first degree must be dismissed because the statements attributed to him cannot be construed to place the complainant in reasonable fear of physical injury; and that the statements were made to express his feelings or his desire to speak with the complainant. In opposition, the People argued that these statements are not the only facts in the complaint which go to the charge of harassment in the first degree; rather, the defendant is charged with a course of conduct including more than the defendant’s statements.

The Penal Law provision for harassment in the first degree was enacted in 1992 as part of a series of criminal statutes intended to deal with the heightened level of consciousness as to the sinister effects of one person’s stalking another. Under the said provision, a person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury. In contrast to menacing in the second degree, harassment in the first degree is also a stalking crime, which requires that a defendant intentionally place or attempt to place another person in reasonable fear of physical injury. Harassment in the first degree only requires an intent to repeatedly harass another person which results in that person being placed in reasonable fear of physical injury.

Here, harassment in the first degree is not restricted to statements. The term course of conduct may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time evidencing a continuity of purpose. The threatening tone of the defendant’s voice, coupled with the implied threats in defendant’s statements, his insistence on seeing the complainant when she clearly did not want to see him, his approaching the complainant in public places, taken together with the frequency of the defendant’s actions, make out a course of conduct sufficient to establish a facially sufficient charge of harassment in the first degree. The fact that the defendant’s overtures were unwanted and placed the complainant in fear can be inferred from the complainant’s retreating back into the subway station when she saw the defendant by the entrance; by the complainant’s telling the defendant that she had nothing to say to him, when the defendant appeared early in the morning at her home; by the complainant’s statement to the defendant on the telephone, telling him that she did not want to speak to the defendant anymore; and by the fact that a friend of the complainant blocked the defendant from approaching the complainant, while the complainant escaped onto a bus to avoid the defendant.

Accordingly, the defendant’s motion to dismiss the charge of harassment in the first degree was denied.

On the menacing, third degree:

According to the defendant, he cannot be charged with menacing in the third degree because the statute requires physical menace, whereas the complaint does not denote any physical actions by him that would show the intent to inflict physical harm. The People responded to the defendant’s motion to dismiss the menacing count by moving to dismiss.

Accordingly, the joint motion to dismiss the charge of menacing in the third degree was granted. According to the People, they do not intend to introduce any evidence of statements made by the defendant or identification testimony. Thus, such evidence was precluded.

Stephen Bilkis & Associates has free consultation services. For advice on matters similar to the above, if you find yourself in one, call our office or visit us at any of our locations. Nassau County Criminal Defense Attorneys like our Nassau County Harassment Attorneys, among others, will be honored to be of assistance.

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