Opinion
CA 232-16
01-26-2018
The PEOPLE of the State of New York, Respondent, v. Jeffrey ROCKEFELLER, Defendant-Appellant.
For the Respondent: Hon. P. David Soares, Esq., Christopher D. Horn, Esq. Of Counsel: Albany County District Attorney, Albany County Judicial Center, 6 Lodge Street, Albany, New York 12207. For the Defendant-appellant: Paul R. Edwards, Esq., 112 State Street, Suite 1330, Albany, New York 12207.
For the Respondent: Hon. P. David Soares, Esq., Christopher D. Horn, Esq. Of Counsel: Albany County District Attorney, Albany County Judicial Center, 6 Lodge Street, Albany, New York 12207.
For the Defendant-appellant: Paul R. Edwards, Esq., 112 State Street, Suite 1330, Albany, New York 12207.
William A. Carter, J.
Appeal from a judgment of Albany City Court (Blanchfield, J.) rendered March 11, 2016, convicting defendant upon his plea of guilty of attempted aggravated harassment in the second degree, a class B misdemeanor (Penal Law §§ 110/240.30[1][b]). The defendant's primary argument on appeal is that the accusatory instrument charging him with aggravated harassment in the second degree ( Penal Law § 240.30[1][b] ) is jurisdictionally defective and subject to dismissal. This Court agrees.
This case arose from a voicemail left for Albany Times Union reporter Robert Gavin. The self-identified reader called Gavin in response to his latest Law Beat column and described his experience as a defendant in Judge Breslin's court. The caller ended his message crudely stating that he was going to do harm to Judge Breslin upon his retirement — which, at that time, was more than one year away. On the strength of the above facts, the defendant was charged with aggravated harassment in the second degree, bail was set at $25,000.00 cash or $50,000.00 bond. Unable to make bail, the defendant spent 5 weeks incarcerated until he pleaded guilty to attempted aggravated harassment in the second degree. The Court thereafter denied the defendant's motion to withdraw his plea and this appeal ensued.
It is well settled that "[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v Case , 42 NY2d 98, 99 [1977] ; see People v Afilal , 26 NY3d 1050, 1051 [2015] ).
"Facial sufficiency of the accusatory instrument is the basis for the court's authority to proceed with the criminal action" (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 100.40 at 387 [2004 ed.]). "If the instrument is not legally sufficient, the court has no authority at all to proceed with the arraignment" ( Fitzpatrick v Rosenthal , 29 AD3d 24, 30 , lv denied 6 NY3d 715 [2006] [internal citation omitted]; see People v Padilla , 42 Misc 3d 1221(A) [Rockland Co. Ct. 2014] ).
As is relevant here, an information is sufficient on its face when the three requirements enumerated in CPL 100.40 (1) are satisfied. First, the information must substantially conform to the form and content requirements of CPL 100.15 ( see CPL 100.40 [1][a] ). Second, the factual allegations and any supporting depositions must "provide reasonable cause to believe that the defendant committed the offense charged" ( CPL 100.40 [1][b] ). "Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and 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] ). Finally, to satisfy the "prima facie case" requirement, the non-hearsay allegations, if true, must establish every element of the offense charged and the defendant's commission thereof ( CPL 100.40 [1][c] ). As noted above, the failure to establish a prima facie case in an information is a non-waivable jurisdictional defect requiring dismissal of the accusatory instrument ( see People v Alejandro , 70 NY2d 133, 139 [1987] ).
A court reviewing a motion for facial insufficiency should not subject the allegations to an "overly restrictive or technical reading" ( People v Casey , 95 NY2d 354, 360 [2000] ). In assessing facial sufficiency, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged" ( People v Sylla , 7 Misc 3d 8 [App. Term 2 Dept 2005], lv denied 4 NY3d 857 [2005], citing People v Konieczny , 2 NY3d 569, 575 [2004] ).However, conclusory statements that are not supported by evidentiary facts are legally insufficient ( see People v Dumas , 68 NY2d 729, 731 [1986] ). While the factual allegations should be given a fair and not overly restrictive or technical reading ( see People v Kalin , 12 NY3d 225 [2009] ; People v Casey , 95 NY2d 354 [2000] ), they must nevertheless satisfy the requirements of the Criminal Procedure Law.
The People's citation to People v Kamburelis (100 AD3d 1189 ) is not on point, as that case reviews the sufficiency of a superior court information and not an information. Moreover, the Court declines the People's invitation to adopt a more liberal pleading standard akin to civil pleadings.
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As is relevant here, Penal Law § 240.30(1)(b) provides that:
"[a] person is guilty of aggravated harassment in the second degree when [w]ith intent to harass or threaten another person, the actor [c]auses a communication to be initiated anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, a member of such person's same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family or household"
The distinction between current subsections (1)(a) and (1)(b) of Penal Law 240.30 began with the passage of Chapter 290 of the Laws of 1969, which "added after the word ‘communicates’ the parenthetical phrase ‘or causes a communication to be initiated by mechanical or electronic means or otherwise’ " ( People v Viau , 50 NY2d 1052, 1052—53 [1980] ). The 1969 amendments "were directed mainly to a mechanical or electronic commercial device which is attachable to a telephone and may be set to make repeated-and doubtless annoying-telephone calls of recordings to prospective customers" more commonly known as robo-calls ( id. at 1053, citing Hechtman, Practice Commentary, McKinney's Cons. Laws of NY, Book 39, p. 309). As noted by the Court of Appeals, the parenthetical clause, now contained within (1)(b) of Penal Law 240.30 "defines only how the communication is initiated" ( People v Viau, supra at 1053).
The gravamen of the crime of aggravated harassment in the second degree, no matter what subsection is charged, "is the invasion of someone's private space via specified methods, most notably the telephone, and doing so with the intent to [ ] harass or [threaten]" ( People v Coyle , 186 Misc 2d 772, 773 [2000] ). Penal Law § 240.30, targets " ‘communications made to an unwilling recipient wherein substantial privacy interests are invaded in an essentially intolerable manner’ " ( People v Limage , 19 Misc 3d 395, 397-398 [NY City Crim.Ct. 2008] quoting People v Little , 14 Misc 3d 70, 72 [App.Term, 2 Dept 2006], lv denied , 8 NY3d 924, 834 [2007] ).
The facts a court may consider in assessing the facial sufficiency of an information are limited to the four corners of the accusatory instrument and any supporting depositions attached thereto ( see People v Thomas , 4 NY3d 143, 146 [2005] ). Accordingly, the Court cannot consider the CD attached to the accusatory instrument for purposes of facial sufficiency. Thus, the only non-hearsay allegations the Court may consider are found in the supporting deposition of Robert Gavin, which provides in relevant part:
"I am currently employed by the Times Union and have an office located within the Albany County Judicial Center. On Monday October 5, 2015, at approximately 4:00PM I was checking the voicemail of my office telephone [No. listed] and retrieved a message from someone identifying themselves as Jeff Rockefeller. Mr. Rockefeller states that he was responding to an ad that I posted in Sunday's Law Beat and went on to give details of a case where he was the defendant and Thomas Breslin was the Judge. At the end of the message Mr. Rockefeller stated that, ‘Thomas Breslin retires next year, he is going to be 70 on October 17, he was born in 1946 so his judgeship will be up next year and when it is there's a target on him. I'm going to get that cocksucker for sending me to prison and when I see him he is going to be hurt. Thomas Breslin's days are limited.’ "
A fundamental right, as set forth by the First Amendment of the US Constitution as well as the NY State Constitution, is the right to free speech. Accordingly, any proscription of free speech must be clearly defined so as not to have a chilling effect upon speech that is permissible ( see People v Pierre-Louis , 34 Misc 3d 703, 704—05 [Nassau Dist Ct 2011], citing Reno v American Civil Liberties Union , 521 US 844, 845 [1997] ).
As a consequence, only " ‘well-defined and narrowly limited classes [of speech] including the lewd and obscene, the profane, the libelous, and the insulting or fighting words which by their very utterance inflict injury or tend to incite an immediate breach of the peace’ may properly be proscribed" ( People v Behlin , 21 Misc 3d 338, 340 [NY City Crim Ct, 2008], quoting Chaplinsky v State of New Hampshire , 315 US 568, 572 [1942] ). Therefore, in order for speech to be criminalized, "it must be more than mere abusive language, crude humor, or merely unpleasant communication" ( People v Limage , 19 Misc 3d at 397, citing People v Dietze , 75 NY2d 47, 51 [1989] ). As the Court of Appeals reiterated in People v Dietze (75 NY2d 47 [1989] ) speech alone may neither be forbidden nor penalized "unless [it] presents a clear and present danger of some serious substantive evil" ( id. at 51-52 ).
The defendant argues, and this Court agrees, that the speech involved in this case does not rise to a level warranting criminalization. Initially, and assuming without deciding, that the communication at issue is even contemplated by Penal Law § 240.30(1)(b) as opposed to Penal Law § 240.30(1)(a), the entire voicemail was never presented to the Court in a form that could lawfully be considered and thus, to date, the complete context of the communication is wanting. That said, the portion of the voicemail message quoted within reporter Gavin's supporting deposition indicates, by its own terms, that the declarant's intention in telephoning the reporter was to discuss Gavin's recently published story in the Times Union. The comments regarding Judge Breslin were made in that context with no direction, request or stated desire that such comments be relayed by Gavin to Judge Breslin or more generally, the public. There are simply no facts pleaded to support a reasonable inference that the defendant acted with the requisite intent to harass or threaten Judge Breslin, as those terms are understood within constitutional parameters, when he called a reporter to comment on a published story. There is no question that the language used concerning Judge Breslin was crude and unpleasant. However, it was also entirely lacking in the immediacy required for criminalization. Moreover, no privacy interests were invaded or even implicated by this communication ( see People v Limage, supra ). Lastly, the People's conclusory statement that "[l]eaving this message on a reporter's voicemail was a calculated act which would ensure that the message would be communicated to the target of the message, Judge Breslin" is unsupported by fact or reason, and would, if accepted as true, have a chilling effect upon speech.
Accordingly, the order of Albany City Court, insofar as appealed from, is reversed and the information charging the defendant with aggravated harassment is dismissed.