PEOPLE v. COOPER (2004)

The defendant is charged with Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(1), an A Misdemeanor criminal offense.   The motion by the defendant to dismiss requires this Court to assess the implications of two recent conflicting decisions.   A decision of the United States District Court for the Southern District of New York declared that § 240.30(1) constitutes an unconstitutional infringement of the First Amendment right to free speech (and, possibly, the Fourteenth Amendment right to due process of law).   A decision of the Appellate Term, Second Department, in contrast, holds that the provision withstands scrutiny on both these grounds.

The federal decision appears to be unsupported by either New York Court of Appeals or Second Circuit Court of Appeals jurisprudence.   It cannot be followed.

Section 240.30(1) of the Penal Law provides, in relevant part, that a person is guilty of a class A misdemeanor, punishable by up to a year in jail, “when, with intent to harass, annoy, threaten or alarm another person,” they, inter alia, “communicate with another person ․ by telephone ․ [or] mail ․ in a manner likely to cause annoyance or alarm.”

The instant complainant's husband had allegedly made harassing telephone calls to the defendant's wife.   The defendant allegedly called the complaining witness and left a message on her cell phone telling the complainant that if the complainant's husband did not stop calling the defendant's wife, the defendant would “bury her,” and that she had “been warned.”

In Vives v. City of New York, 305 F.Supp.2d 289 (S.D.N.Y.2003), the plaintiff, who had on one occasion been charged with, although never ultimately prosecuted for, a violation of Penal Law § 240.30(1), based upon his mailing of certain materials, argued that the statute was unconstitutional, as violating the First and Fourteenth amendments of the United States Constitution, on the ground that the statute, respectively, unlawfully abridged freedom of speech, and gave insufficient notice of what conduct was proscribed.

After observing that the First Amendment allows regulation of only certain very limited categories of speech, 305 F.Supp.2d at 298, Vives held, 305 F.Supp.2d at 299-300, that “Vives's communications do not fall into one of the defined categories of unprotected speech such as defamation, incitement, obscenity, or child pornography [citation omitted].   Nor do they constitute unprotected ‘true threats,’ because they are not ‘serious expression[s] of an intent to commit an act of unlawful violence to a particular individual or group of individuals' [citation omitted].”

Vives concluded, 305 F.Supp.2d at 301-302, that “[t]hough section 240.30(1) has never before been declared ‘unconstitutional’ on its face, its fate has been foreshadowed since 1985 ․ [S]ection 240.30(1) cannot be reconciled with the First Amendment.  Section 240.30(1) is therefore unconstitutional to the extent it prohibits communications made with the intent to annoy or alarm․” While finding that it was beyond the court's power to enjoin the police from enforcing the statute against non-parties, Vives did enjoin its enforcement against the plaintiff, and found the arresting officers potentially subject to personal liability in damages (because prior court rulings “indicated that a declaration of unconstitutionality was inevitable․”, 305 F.Supp.2d at 303).  Vives warned that in view of “the ever-growing number of courts holding this statute unconstitutional,” “the state and local police officers and prosecutors would be well-advised ․ to cease arrests and prosecutions under this section.”  305 F.Supp.2d at 304.

Just a few months before Vives, the New York Court of Appeals issued an opinion setting forth the analytic procedure to be followed in determining facial challenges to statutes.   In People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1, 797 N.E.2d 28 (2003), the Court sustained the defendant's conviction of a misdemeanor under Penal Law Section § 120.45, part of New York's anti-stalking statute.

Under classical analysis, “[t]he overbreadth and vagueness doctrines give an individual, to whom a law is constitutionally applied, standing to argue that it is unconstitutional on its face meaning that, as written, the law could be applied unconstitutionally in other situations.”   See, D.H. Kaye, The Propriety of “Facial Challenges” to Prior Restraints on the Use of the Internet for Scientific Speech, 40 Jurimetrics J. 445, 452 fn. 29 (2000).  “In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.”  City of Houston, Texas v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (citation omitted).   This is the analysis which Chief Judge Kaye, concurring, would have continued to apply in Stuart.   See, Stuart, 100 N.Y.2d at 422 fn. 8, 765 N.Y.S.2d 1, 797 N.E.2d 28.

The Court in Stuart, however, sharply distinguished between facial challenges for vagueness, and facial challenges for overbreadth.

The Court in Stuart first noted that facial challenges for overbreadth are unique and exclusive to situations in which conduct arguably protected by the First Amendment is implicated, id., in which case Judge Kaye's analysis would prevail, but which in Stuart was not the case.

The Court in Stuart then held that a facial challenge for vagueness, as opposed to overbreadth, “requires the court to examine the words of the statute on a cold page and without reference to the defendant's conduct,” determine whether the defendant has carried the “heavy burden” of “showing that the statute is impermissibly vague in all of its applications,” i.e., is “invalid in toto and therefore incapable of any valid applications.”  100 N.Y.2d at 421, 765 N.Y.S.2d 1, 797 N.E.2d 28 (emphasis in original).   Consequently, “a court's task when presented with both a facial and an as-applied argument is first to decide whether the assailed statute is impermissibly vague as applied to the defendant,” since “in rejecting an as-applied challenge, the court will have necessarily concluded that there is at least one person the defendant to whom the statute may be applied constitutionally,” making it “impossible for a defendant to establish the statute's unconstitutionality in all of its applications,” as required for a facial vagueness challenge to succeed.  100 N.Y.2d at 422-423, 765 N.Y.S.2d 1, 797 N.E.2d 28.

Vives relied in large part on People v. Dupont, 107 A.D.2d 247, 486 N.Y.S.2d 169 (1st Dep't 1985).   The propriety of relying on Dupont for this purpose, though, was called into question by the United States Court of Appeals for the Second Circuit, when reversing the other decision primarily relied upon by Vives:  Schlagler v. Phillips, 985 F.Supp. 419 (S.D.N.Y.1997), rev'd, 166 F.3d 439 (2nd Cir.1998).

In Schlagler, the district court had issued an injunction purporting to bar the Orange County District Attorney from prosecuting the plaintiff a “skinhead” who had placed intentionally inflammatory stickers not only inside a café, but on a patron for violating Penal Law § 240.30(1).  Schlagler found § 240.30(1) unconstitutionally vague and overbroad.   Vives cites the Schlagler district court decision simply as having been reversed “on other grounds.”   In reversing, and directing the district court to abstain from interfering with the District Attorney's prosecution, the Second Circuit in fact held that the statute's unconstitutionality was not so clear, 166 F.3d at 443:

Here, in concluding that § 240.30(1) is unconstitutional, and hence that this prosecution was brought in bad faith, the district court relied extensively on [Dupont ].

* * * *

As an initial matter, in Dupont the court found the acts complained of did not fall within section 240.30(1) but nevertheless that the statute was unconstitutional on its face.   While it may have purported to declare the statute facially invalid, it is not entirely clear that it did so and in any event does not render invalid all prosecutions under the statute.   To the contrary, Dupont itself acknowledged that other courts have found the statute constitutional [citations omitted].   Moreover, there have been a number of successful prosecutions under the law since Dupont [citations omitted].

Accord, People v. Kochanowski, 186 Misc.2d 441, 719 N.Y.S.2d 461 (App. Term, 2nd Dep't), lv. to app. den'd, 95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403 (2000) (affirming Penal Law § 240.30[1] conviction and distinguishing Dupont ).

Vives also noted, 305 F.Supp.2d at 302 fn. 8, that the New York Court of Appeals, in People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989), struck down former section 240.25(2) of the Penal Law. In fact, while much of the analysis in Dietze was indeed addressed to statutory language similar to that utilized in Section 240.30(1), the Court utilized a far different analysis when addressing Section 240.30(2), six years after Dietze, in People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d 706 (1995), a case upon which the Court later relied heavily in Stuart, supra, see, 100 N.Y.2d at 427-428, 765 N.Y.S.2d 1, 797 N.E.2d 28.   See, People v. Tiffany, 186 Misc.2d 917, 721 N.Y.S.2d 741 (Crim.Ct., N.Y.Co.2001) (Harris, J.) (distinguishing Dietze and Shack ).

Penal Law Section 240.30(2) criminalizes calls made “with no legitimate purpose.”   In Shack, the defendant had been convicted of violating Section 240.30(2) as a result of having left numerous messages on the complaining witness' voicemail stating 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.”  86 N.Y.2d at 534, 634 N.Y.S.2d 660, 658 N.E.2d 706.

The Court of Appeals found that the statute was not facially invalid for either overbreadth or vagueness.

Rejecting the overbreadth argument, the Court concluded that “[e]ven if the statute may, on rare occasion, reach constitutionally protected expression, we are unable to conclude that the statute's overbreadth, if any, is substantial․” 86 N.Y.2d at 537, 634 N.Y.S.2d 660, 658 N.E.2d 706.

Regarding the argument that the calls in Shack did not fall within one of the categories of speech which Vives would later identify as the exclusive areas of permissible regulation under the First Amendment, the Court in Shack held, 86 N.Y.2d at 535-536, 634 N.Y.S.2d 660, 658 N.E.2d 706, that the particular method of communication used something not addressed in Vives raised counterveiling privacy considerations:

[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” [citation omitted].   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 [citation omitted], or places where it is impractical for an unwilling listener to avoid exposure to the objectionable communication [citation omitted].   Under some circumstances, the privacy right may “plainly outweigh” the free speech rights of an intruder [citation omitted]․ [P]ermitting communications to be foisted upon an unwilling recipient in a private place would be tantamount to licensing a form of trespass․

․ Manifestly, an individual has a substantial privacy interest in his or her telephone․ 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 further the State's compelling interest in protecting its citizens from “persons who employ the telephone not to communicate, but for other unjustifiable motives.” [citations omitted].

Rejecting the vagueness argument, the Court in Shack first observed that “[t]he legislative use of inherently imprecise language ․ does not render a statute fatally vague if that language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices' [citations omitted].”  86 N.Y.2d at 538, 634 N.Y.S.2d 660, 658 N.E.2d 706.   The Court in Shack, addressing language which is part of Section § 240.30(1) as well as § 240.30(2), held, 86 N.Y.2d at 539-540, 634 N.Y.S.2d 660, 658 N.E.2d 706:

Specifically, the statute prohibits one from [communicating] “with intent to harass, annoy, threaten or alarm another person” (Penal Law § 240.30).  By including a specific intent element in the statute, the Legislature has removed the possibility that a defendant could be unaware of his criminal conduct [citations omitted].

․ We conclude that the statute adequately describes an element of the proscribed conduct, and provides sufficient notice to potential offenders and sufficient guidelines to those who would enforce the statute and that defendant has failed to overcome the presumption of validity which attaches to legislative enactments.

Just four months prior to the decision in Vives, in People v. Goldstein, 196 Misc.2d 741, 763 N.Y.S.2d 390 (App. Term, 2nd Dep't 2003), the Appellate Term expressly held that “[d]efendant's contention that the aggravated harassment statute (Penal Law §§ 240.30[1] and [2] ) is unconstitutional because defendant was within his First Amendment rights in making various statements is without merit.”  196 Misc.2d at 745, 763 N.Y.S.2d 390.   Accord, People v. Bonitto, 4 Misc.3d 386, 777 N.Y.S.2d 900 (Crim.Ct., N.Y.Co.2004) (Harris, J.).   The Appellate Term in Goldstein referred to the criminalized conduct (as had the Court of Appeals in Shack ), as a “form of trespass,” due to the manner of communication selected by the defendant (i.e., telephone or mail), and noted the “substantial privacy interests” of the complainant.  196 Misc.2d at 747, 763 N.Y.S.2d 390.

Particularly since the Appellate Term is the court with direct appellate jurisdiction over this one, and therefore the court whose decisions this Court is bound to follow, the issue of the constitutionality of Penal Law Section 240.30(1) must therefore be decided in the affirmative, and the law applied as enacted by the legislature, notwithstanding the declaration contained in Vives.

The defendant argues that the communication in this case was in essence only a demand by the defendant that the complainant have her husband cease his harassment, with a contingent action to be taken if the request was ignored.   Moreover, argues the defendant, the communication, even if categorized as a threat, was not what Vives would define as a “true threat,” i.e., one of “unlawful violence.”   The stated contingent action that the defendant would “bury” the complainant is at best ambiguous, evincing nothing more than an intent to “defeat overwhelmingly.”   Even if not within the ambit of constitutionally protected speech, as Vives would hold it was, the communication was according to the defendant not within the scope of speech criminalized by the statute.

In Goldstein, supra, 196 Misc.2d 741, 763 N.Y.S.2d 390, the defendant as part of a sustained campaign of harassment made a telephoned threat to “take down” the complainant, which threat could be analogized to the instant threat to “bury” the complainant.   The statement in Goldstein was made in a context in which it was apparent that what was meant was to “take [her] down” socially, financially, and professionally, although not physically and through violence.   The threat was adjudged by the Appellate Term as nevertheless sufficient to sustain a conviction after trial under Section 240.30(1).

However, in People v. Silverberg, 1 Misc.3d 62, 771 N.Y.S.2d 274 (App. Term, 1st Dep't 2003), the Appellate Term reversed the defendant's conviction for harassment under § 240.30(1).  The complainant was a lawyer who had initiated criminal harassment charges against a mutual acquaintance of the complainant and defendant.   The defendant called up the complainant and informed the complainant that if he didn't drop the charges, the defendant would with the support of two eye-witnesses bring criminal charges against the complainant for an assault which he had previously perpetrated, and would also file professional grievances against him.

The Appellate Term held that the conviction could not stand in view of the fact that the charge arose from a single, “isolated,” phone call, that the defendant during the call “spoke in a measured tone,” and that the defendant did not “unequivocally” threaten the complainant.  1 Misc.3d at 65, 771 N.Y.S.2d 274.   Justice Suarez dissented, among other things objecting to the apparent imposition of an “unequivocality” requirement.

In People v. Mangano, 100 N.Y.2d 569, 764 N.Y.S.2d 379, 796 N.E.2d 470 (2003), the defendant called an after-hours telephone answering machine maintained by the Village of Ossining, and “rained invective on two village employees, wished them and their families ill health, and complained of their job performance․” 100 N.Y.2d at 570, 764 N.Y.S.2d 379, 796 N.E.2d 470.   The Court of Appeals reversed her conviction for violating § 240.30(1), stating “defendant's messages were crude and offensive, but made in the context of complaining about government actions, on a telephone answering machine set up for the purpose (among others) of receiving complaints from the public.   We cannot agree with the People's argument that appellant's messages fall within any of the proscribable classes of speech or conduct.”  100 N.Y.2d at 571, 764 N.Y.S.2d 379, 796 N.E.2d 470.

In Dietze, supra, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166, the Court reversed the defendant's conviction, holding that “[t]here is nothing in the record demonstrating that defendant's statement that she would ‘beat the crap out of [the complainant and her son] some day or night in the street’ was either serious, should reasonably have been taken as serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst.   While genuine threats of physical harm fall within the scope of the statute, such an outburst, without more, does not [citations omitted].”  75 N.Y.2d at 53-54, 550 N.Y.S.2d 595, 549 N.E.2d 1166.

The action of the instant defendant arguably falls within the Dietze-Mangano-Silverberg ambit i.e., not criminal within the statutory definition because it was an isolated, angry outburst (as in Silverberg, and in contrast to Goldstein ), not reasonably to be taken seriously as a threat (as in Dietze), not an “unequivocal” one, since conditional (as in Silverberg), and, since made to voicemail rather than personally, less invasive of any “privacy” interests of the complainant (as in Mangano ) (see, Justice Suarez's dissent in Silverberg ).

However, whether this is in fact the case must abide a trial, with a full record.   Whether an alleged “threat” meets the applicable constitutional or statutory standards is “usually a question of fact,” and on a motion to dismiss for facial insufficiency, the court must hold the People to a less strict standard than would be the case at trial.   See, Bonitto, supra, 4 Misc.3d at 388-389, 777 N.Y.S.2d 900;  Tiffany, supra, 186 Misc.2d at 920-921, 721 N.Y.S.2d 741.

The defendant's motion to dismiss must therefore be, and hereby is, denied.

So Ordered.

KENNETH L. GARTNER, J.