Opinion
No. CR-01028-21
11-12-2021
The People of the State of New York, v. Gregory Cannata, Defendant.
Westchester County District Attorney Mount Vernon branch Gerald E. Loehr, Esq. Morvillo, Abramowitz Grand Iason & Anello, PC Attorney for Defendant
Unpublished Opinion
Westchester County District Attorney
Mount Vernon branch
Gerald E. Loehr, Esq.
Morvillo, Abramowitz Grand Iason & Anello, PC
Attorney for Defendant
Nichelle A. Johnson, J.
Defendant is charged by misdemeanor information with two counts of Attempted Coercion in the Third Degree (PL § 110/135.60(5) & (9)). Defendant has made a motion seeking to dismiss the accusatory instrument pursuant to CPL § 170.30(1)(a) on the grounds that it is facially insufficient as to both counts charged.
DEFENDANT'S MOVING ARGUMENT
Defendant contends that both counts of Attempted Coercion in the Third Degree charged in the accusatory instrument should be dismissed on the grounds that they are facially insufficient. First, defendant contends that the allegations in the information fail to establish that defendant exposed the complainant (hereinafter at times "CW"), Janice Duarte, to hatred, contempt or ridicule as proscribed by PL §135.60(5). Defendant argues that since neither the legislature nor the New York courts have defined the meaning of the phrase hatred, contempt, or ridicule in the context of Coercion in the Third Degree, the plain meaning of the phrase when considered in the context of the statute should be used when determining whether defendant's conduct violated PL §§135.60(5). Defendant asserts that the only reasonable construction of the phrase is that it refers to serious social derision and not merely hurt feelings, wounded political prospects or voter rejection at the polls. Defendant further asserts that the phrase criminalizes threats to reveal information that would subject the victim to interpersonal censure and not adverse political consequences, especially in light of the fact that the statute does not specifically reference political failure as the type of harm to give rise to criminal liability nor is any such conduct specifically prohibited in the Election Law. Defendant also contends that the rule of lenity prohibits the application of PL §135.60(5) to defendant's conduct.
With respect to the count charging defendant with violating PL §135.60(9) defendant contends that the Information pleads facts that fatally undercut a key element of the offense and is therefore facially deficient. Specifically, defendant contends that the information on its face establishes that defendant would materially benefit from the allegedly threatened acts and as such, the elements of PL §135.60(9) cannot be met and the charge must be dismissed. The Defendant argued that the Legislature with the enactment of §135.60(9) intended to punish threats motivated by nothing other than spite and by contrast when the actor would gain in some meaningful and discernable way from the threatened act, Penal Law 135.60(9) is not implicated.
Lastly, defendant asserts that the application of PL §135.60 to defendant's conduct in this case would be an unconstitutional infringement upon his right to engage in core political speech. The defendant asserts that Defendant's speech herein is accorded the highest level of constitutional protection.
PROSECUTION'S OPPOSING ARGUMENT
In opposition, the People contend that the accusatory instrument is facially sufficient as to both counts of Attempted Coercion in the Third Degree. The People contend that with respect to the charge of PL § 110/135.60(5) the allegations contained in the accusatory instrument, which includes the complaint, supporting depositions and exhibits attached thereto, including an audio recording of the telephone call between the defendant and the CW, establish reasonable cause to believe the defendant threatened to engage in a series of targeted communications attacking the CW if she did not withdraw her brother's objection to defendant's petition to be on the Mount Vernon City Council ballot. The People assert that since there is no statutory or case law definition for the words' hatred, contempt, or ridicule that they must be interpreted by their plain meaning and that defendant's threat that he would be ruthless with Ms. Duarte and attack her personally, which they posit goes beyond just politics, could tend to subject her to hatred, contempt or ridicule as proscribed by the statute. The People further contend that defendant attempts to characterize his threats as political speech when, in fact, the threats were more vitriol in nature in that defendant suggested that he would be ruthless in his attack on her and would personally attack her. The People further assert that defendant's reference to the lack of specific prohibition of political criticism in the Election Law as support for his position that his actions were not criminal in nature is unreasoned as there are a myriad of situations not specified in the Election Law. The People argue that the defendant did not merely try to embarrass Ms. Duarte or level political criticism at her but rather the defendant levered the threat of relentless attacks and a lawsuit to attempt to force Ms. Duarte to withdraw the objection to defendant's petition. The People assert that defendant's threatened conduct tended to subject Ms. Duarte to hatred, contempt or ridicule as those words are plainly understood.
The People further contend that the rule of lenity is not applicable to the instant matter since the defendant is not arguing that there are two plausible interpretations of Coercion in The Third Degree nor is the statute grievously ambiguous or uncertain.
Finally, the People assert that the instant accusatory instrument and prosecution of defendant do not violate the defendants First Amendment right to free speech. The People note that, in general, courts have ruled that New York coercion and extortion statutes regulating First Amendment activity are constitutional. The People further contend that prosecution of a coercive threat does not violate the First Amendment simply because it was made in a political context as it is defendant's conduct which was criminal and not the particular political speech he put forth. It is the People's contention that the defendant is not being prosecuted for his political ads or speech, rather he is being prosecuted for threatening to harm the CW if she did not comply with his demands. As such, it is defendant's threats and not his political speech, that are the crux of defendant's criminal conduct.
With respect to defendant's contention that the accusatory information on its face is facially insufficient as to PL § 110/135.60(9), the People assert that the statute requires that the threatened conduct in itself not materially benefit the defendant and therefore, even if there is a collateral material benefit to the defendant, the statute forbids conduct where the primary purpose is to harm another person. In the instant case, the People maintain that the defendants threatened conduct, that being publicized personal and political attacks on the CW, did not materially benefit the defendant, but rather, the only benefit to the defendant were possible collateral benefits.
DEFENDANT'S REPLY ARGUMENT
Defendant replies arguing that the prosecution is ignoring documented facts and applicable law in their opposition. Specifically, the Defendant reiterates the fact that the speech involved was entirely political speech as it only contained "legitimate political critique not personal attack", that nothing in the email the defendant sent the complaining witness references any details about the complainants personal life or anything other than her actions on the City Council, that if "repeated and ruthless" political critiques could qualify as subjecting someone to "hatred, contempt or ridicule" routine political horse trading would suddenly become a criminal act". Defense further replies as to the second count of contempt 135.60(9), that the prosecution concedes that threatening to undertake action that would directly benefit the actor is not criminal but threats that only collaterally benefit the actor is criminal thereby drawing an invented distinction that finds no support in either the statutory text or relevant case law. Finally, the Defendant argues that the People's position that the Defendant's threat of bringing a lawsuit for waste of taxpayers' money against the complainant only offers "tangential benefit" to taxpayers that this position brazenly dismisses the benefits to taxpayers who make use of a legal right the City Charter of Mount Vernon explicitly affords and that the defendant would benefit more than tangentially from such a lawsuit as it would publicize the complaining witnesses failings and could increase the likelihood of his success, if not in the primary race, the general election in which he could still have run as a write in candidate.
DECISION
Defendant's motion to dismiss the accusatory instrument on the grounds it is facially insufficient is granted. It is well settled that "a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution' People v. Dreyden, 15 N.Y.3d 100, 03 (2010) citation omitted). To be legally sufficient, "the factual portion of a local criminal court information" must meet the following requirements:
That it state "facts of an evidentiary character supporting or tending to support the charges" (New York Criminal Procedure Law 100.15(3); see CPL 100.40(1)(a)); that the 'allegations of the factual part...together with those of any supporting depositions...provide reasonable cause to believe that the defendant committed the offense charged (CPL 100.40(1)(b)); and that the "non-hearsay allegations of the information and supporting depositions establish if true every element of the offense charged and the defendant's commission thereof (CPL 100.40(1)(c); see CPL 100.15[3])" People v. Casey, 95N.Y.2d 354, 360 (2000). Thus, if the accusatory instrument does not "set forth non-hearsay allegations which if true establish every element of the offense charged and the defendant's commission thereof it must be dismissed. People v. Wheeler 34 N.Y.3d 1134, 1135 (2020) The requirement of facial sufficiency also entails that an accusatory instrument that alleges facts inconsistent with the charged offense is jurisdictionally defective. See People v. Hardy 35 N.Y.3d 466, 475 (2020); Dreyden, 15 N.Y.3d at 103. An accusatory instrument also must pass constitutional muster. CPL 170.35(1)(c). Accordingly, "town courts have jurisdiction to dismiss criminal charges on the grounds that the law defining the violation charged is unconstitutional" People v. West, 780 N.Y.S.2d 723, 724 (Ulster City Just. Ct 2004).
In the case at bar, the Court finds that due to the political nature of the exchange herein, it was not legally sufficient to charge defendant with two counts of Attempted Coercion in the Second Degree pursuant to PL 135.60(5) & (9).
The accusatory instrument alleges that on or about April 9, 2021 the defendant engaged in a telephone conversation with the CW during which defendant attempted to "broker" a political deal which is commonplace in politics. The Defendant stated in sum and substance that there were consequences for her brother's objection to defendant's petition to be on the Mount Vernon City Council ballot; that he took the objections personally; that if Ms. Duarte did not withdraw the petition objection it would be his singular focus between then and June 22nd to work against her individually and that he would do everything he could to tell every democrat they should not vote for her; that he would be ruthless and would send out weekly emails blasting her every chance he got; if he was off the ballot he would be attacking her personally by attacking what she had done on the council specifically mentioning her name; and he also stated that if his demand was not met he would bring a lawsuit against Duarte pursuant to the Mount Vernon City Charter, for waste. He went on to state that he spent a lot of time and money and wanted to stay in the race for City Council and if she would withdraw the objections that would allow him to stay in the race in exchange, he would refrain from attacking her personally as to her political record as a city council person - a right he had but would not engage in if she agreed to withdraw. CW stated that others had challenged his signatures and the defendant informed her that the other party that had also objected to his petition had withdrawn his objections
This court wonders whether a political deal was made to get that objection withdrawn as political deals happen all the time.
The accusatory instrument further alleges that on or about April 9, 2021 the defendant sent the CW a sample of the email he referenced in the phone conversation. In the email the defendant informed the recipients that the CW had attempted to get him thrown off the ballot instead of facing off with him in the race. He then went on to specify actions taken by the city council which included specifically mentioning the CW by name and accusing her of waste and inaction. In addition, on or about April 11, 2021 the defendant sent the CW a text message that stated the first political letter "will go out at 4:00 pm tomorrow if the objection is not withdrawn". On or about April 12, 2021 the defendant sent a mass email identical to the one forwarded to the CW to registered democrats in the City of Mount Vernon. Again, a right he had as a candidate and citizen engaged in the political process.
While these allegations provide reasonable cause to believe that the defendant,tried to compel or induce the complainant to engage in conduct which the complainant had a legal right to engage in by instilling in her a fear that, if the demand was not complied with that defendant would subject her to ruthless political and personal political attack they failed to provide reasonable cause to believe that the fear was that the defendant would 1) expose a secret or publicize an asserted fact, whether true or false, that would subject her to hatred contempt or ridicule; and 2) perform an act that would not, in itself, materially benefit defendant, but was calculated to harm complainant with respect to her health, safety, business, calling, career, financial condition, reputation or personal relationships. As a result, the accusatory is facially insufficient.
With respect to Count One of the accusatory instrument Attempted Coercion in the Third Degree (PL § § 110/135.60(5)) the Court finds the prosecutions contradictory arguments that defendant's conduct was not ALL political and that THEN whether its "political or personal it would still subject the complainant to hatred, contempt or ridicule" is unavailing. The prosecution cannot have it both ways. Especially since it is clear to this court that the threat of exposing political misfeasance or malfeasance is protected political speech and is not the type of speech the crimes herein were targeting when it indicated hatred, contempt, or ridicule. This court agrees with the defense that while the political targeting of the CW may expose her to political backlash from the public at large such is not the type of speech anticipated to be criminalized under this criminal statue. The prosecution in trying to posit that the speech was not all political by arguing that the Defendants use of the words "ruthless" and "personally" were words referencing something other than political speech, this court can only opine that this tenuous argument is being made because if the speech is only political the prosecution understands that they will have problems with the life of their dubious accusatory. However, a review of their own accusatory, and a complete review one that follows the federal rule of completeness establishes the fact that the defendant's threat was to expose only political issues regarding the CW. A review of the accusatory which includes all exhibits referred to in the CW's supporting deposition, clearly establishes that the Defendant's actions (his statements and threats) were threats to harm the CW politically NOT attack the CW as to matters that were personal and would subject her to hatred contempt or ridicule as contemplated by the statute. A complete review of the prosecution's own accusatory establishes clearly that when the Defendant used the words ruthless and attacking the CW personally, that he was referring to relentless weekly emails to City Democrats regarding the CWs action as a City Council member This court finds that the prosecution's singling out the words "ruthless and personally" arguing that Defendant's actions were to attack the CW on other things that were NOT political, establishes that the prosecution engaged in this discoloration of the facts because they knew that should the speech be exclusively political (which this court opines it was) that that would be fatal to the survival of their accusatory instrument. Again, it is clear to this court and using the rule of completeness that every word used by the defendant was in the context of a political attack which is beyond the reach of criminal charge as the very purpose of political bantering back and forth is making your adversary appear unfit for office by subjecting them to political speech regarding all of their misdeeds and malfeasance and if this subjects the person to hatred ridicule or contempt from a political perspective it is par for the course and not within the reach of the criminal statute herein. While the prosecution argued that it was the Defendant's action not his speech that they have a problem with - his threat to harm - the crime requires not just a threat but that it subject the person to hatred ridicule or contempt and if the speech is political, and this court finds that it was, then this court opines as the Defense asserts that there is no way the legislature meant for this political speech where opposing candidates subject each other to exactly what the statue criminalizes political hatred, ridicule and contempt. That is exactly what candidates for office attempt to do to each other. Their own argument establishes their need to make the speech between the complaining witness and the Defendant anything other than political as an attempt to give life to their dubious accusatory instrument. The Defendant was clear, crystal, that his ruthless approach and personal attacks were centered around authorized and anticipated political bantering wherein he would expose what he felt were misdeeds of the CW while she was in political office. Not only did the Defendant verbally explain what he meant but he also sent the complainant the sample email he would send and the one he did send with his political speech he had a right to send as a political candidate in a political race. As a result, the accusatory alleges facts that are inconsistent with the charged offense thus the accusatory is jurisdictionally defective.
Under the Rule of Completeness or Doctrine of Completeness when part of a writing or recorded statement is introduced, an adverse party may require introduction of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with the writing or recorded statement originally introduced. This additional evidence is called explanatory evidence, and its purpose is to qualify, explain or put in context the original piece of introduced evidence. This court simply refers to this rule or doctrine to emphasize that a complete review of all the statements, recordings and any other items included in this accusatory must be reviewed completely to make sure the context within which statements were made have their full meaning as citing to some words or statements would be a manifest injustice, especially when someone is facing criminal charges.
With respect to Count Two of the accusatory instrument, Attempted Coercion in the Third Degree (PL § 110/135.60(9)), the Court finds that the threatened conduct as alleged would materially benefit the defendant. The defendant threatened that he would personally attack the CW and would be ruthless in sending weekly emails to voters harshly criticizing her. Defendant then did, in fact, send an email that specifically targeted Ms. Duarte and her actions as a Mount Vernon City council member. This court finds that defendants conduct of attacking the complaining witness' political actions as a council member would enhance defendant's political candidacy to secure a coveted office of significance in the City of Mount Vernon. The People argued that the information here was sufficient as to this charge as the Defendant did not materially benefit from the action. This court finds that it is more than clear that the Defendant indeed would materially benefit from the actions he was threatening to take against the complainant. From the information itself which included a supporting deposition of the complaining witness wherein several sources were included, it is clear to this court that the Defendant did not just want to hurt the complaining witness. His actions were centered around his desire to continue to be in a coveted political race for a City Council seat. In the information which included a recording that was made when the complaining witness called the Defendant it is clear to this court that his objective in accepting the return call from the complaining witness and attempting to strike a political deal with her was to materially benefit himself as if the CW acquiesced, he would still be able to run in the election as a candidate in the political race. As we all know one must be "in it to win it" meaning just being in a political race is a material benefit to a person. Winning the office in question is the ultimate benefit but this court finds being "in" the race was a material benefit and the prosecution's own accusatory establishes that, that was defendant's aim when reaching out to the CW. The securing of a political office within a city especially wherein one gets elected by the residence of that City, brings much notoriety and prestige. Indeed, if the Defendant was successful in his political race, he would earn the title of "Honorable" and would be paid for his services as well. In People v. Feldman, 791 N.Y.S.2d 361, 373 (Kings Cty. Sup. Ct. 2005) the court therein noted that the word benefit must include a "gain or advantage" to the actor. This court opines that the defendants ruthless political, personal political and lawsuit regarding waste are all actions that would have provided the defendant with some gain or advantage as such if successful could have diverted votes his way if he stayed in the race and even if he were not in the primary race if he decided to run as a write in, he still stood to gain some votes or be at a stronger advantage to win any election primary or general. The people concede that the accusatory would be insufficient if the Defendant would materially benefit from his actions when they argued that the benefits to Defendant were only collateral. This is the prosecutions adversarial discoloration of the information as they exist in their OWN accusatory instrument. Additionally, a lawsuit by taxpayers in the City of Mount Vernon wherein they sue for the recoupment of tax dollars is clearly a material benefit to them as any recoupment would add much needed dollars into the City's fisc thereby reducing tax levies or just enhancing the general fiscal welfare of the City. Thus, this charge must be dismissed as insufficient as the information itself establishes that the Defendant did not just take the actions herein just to hurt the complaining witness but stood to materially benefit by engaging in same.
This court took under consideration the fact that the complaining witness returned the Defendant's call, so she initiated the call, in question. She did not have to return the Defendant's call if she knew there was nothing to discuss or felt "physically" threatened by him. As to this concern for her physical safety this allegation was in the accusatory yet within that same accusatory there is no basis in any of the non-hearsay information that supports this allegation. There was nothing in the complaining witnesses own supporting deposition, nor the phone recording (indeed the complaining witness on her recorded telephone conversation with the defendant sounded as if she was strong in her conviction and unafraid) that supported this concern for physical safety. In this court's experience when a statement is made that someone fears for their physical safety, any attached supporting deposition will include non-hearsay facts establishing why the witness was concerned for their physical safety. A review of the complainant's supporting deposition here did not include ANY information as to this alleged "concern for her physical safety" (See Misdemeanor Complaint [sic?] (Information) Page 3). This court only mentions this because it is mindful that sometimes an accusatory could contain allegations just to "fit" the defendant's action into a crime which this court opines is what happened here.
Additionally, this court agrees with the defense that prior cases applying penal law §135.60(5) as well as judicial decisions addressing political speech further undermine the people's novel application of the statute herein to the defendant's conduct and as a result this court rejects same.
As to the First Amendment, we agree with the defense that the Constitution says in the First Amendment that "Congress shall make no law... abridging the freedom of speech"; and the Due Process Clause of the Fourteenth Amendment puts the States under the same restraint. It affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States, 354 U.S. 476, 484. The court stated in Mills that "whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 [86 S.Ct. 1434, 1437, 16 L.Ed.2d 484] (1966)
In Jund v. Town of Hempstead, 941 F.2d 1271, 1283 (2d Cir.1991), the Second Circuit held that the First Amendment did not prohibit the punishment of political committees in a RICO suit because it was imposed for their past employment of a "long-standing coercive solicitation scheme," and not for "their advocacy or their political positions." The case at bar can be distinguished from Jund as here the defendant's behavior and actions were merely to advocate and pursue his political candidacy, therefore attempting to advance his political position.
Therefore, when considered, Defendants constitutional rights would be infringed if the allegations in the information establish that the attack towards Ms. Duarte from a political perspective intended to subject her to "hatred, contempt, or ridicule" as prescribed by the statute.
Thus, based upon the foregoing, the Court further finds that the application of PL §135.60 unconstitutionally infringes upon defendants right to engage in core political speech and defendant's motion to dismiss on said ground is also granted.
This constitutes the Decision and Order of this Court.