However, a telephone harassment statute deals with different concerns than do statutes which seek to control literary or artistic content. It would be foolish indeed to attempt to determine whether a sensual telephone conversation had a redeeming social value by possessing serious literary, artistic, political, or scientific content. See, State v. Crelly, 313 N.W.2d 455 (S.D. 1981); State v. Jaeger, 249 N.W.2d 688 (Iowa 1977); State v. Keaton, 371 So.2d 86 (Fla. 1979); Baker v. State, 16 Ariz. App. 463, 494 P.2d 68 (1972); State v. Starsky, 106 Ariz. 329, 475 P.2d 943 (1970); People v. Cirruzzo, 53 Misc.2d 995, 281 N.Y.S.2d 562 (1967); People v. Anonymous, 52 Misc.2d 772, 276 N.Y.S.2d 717 (1965). Accordingly, the Miller definition of obscenity simply has no application to the statute at hand.

The state is then justified in punishing the cause of the harm as if he were in fact present at the effect should it ever succeed in getting him within its power. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911); Rivard v. United States, 375 F.2d 882 (5th Cir. 1967); People v. Anonymous, 52 Misc.2d 772, 276 N.Y.S.2d 717 (1965); Simpson v. State, supra. Admittedly the doctrine of constructive presence is a legal fiction, but it is a fiction necessary to the practical administration of criminal justice.

The state is then justified in punishing the cause of the harm as if he were in fact present at the effect should it ever succeed in getting him within its power. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911); Rivard v. United States, 375 F.2d 882 (5th Cir. 1967); People v. Anonymous, 52 Misc.2d 772, 276 N.Y.S.2d 717 (1965); Simpson v. State, supra. Admittedly the doctrine of constructive presence is a legal fiction, but it is a fiction necessary to the practical administration of criminal justice. SDCL 23-9-12:

Throughout the history of the harassment statute in its various forms running back more than a century, it has not been applied to make the mere distribution of printed material a crime. A review of the cases reveals that prior versions of the statute have classically been applied as a protection against the coercive threats of the incessant bill collector ( see, e.g., People v. Globe Jewelers, 249 App. Div. 122; People v. Wickes, 112 App. Div. 39; People v. Loveless, 84 N.Y.S 1114; 1929 Opns Atty Gen 126, 127-29), or the violation of one's privacy by means of obscene telephone calls ( People v. Cirruzzo, 53 Misc.2d 995; People v. Anonymous, 52 Misc.2d 772). The early predecessors of the harassment statute were closely associated with the crime of attempted extortion ( see, Biggs v People, 8 Barb 547; People v. Griffin, 2 Barb 427).

Defendant argues that in order for Albany County Court to have acquired jurisdiction in this case either conduct sufficient to establish an element of aggravated harassment must have occurred within Albany County (CPL 20.40, subd 1, par [a]) or aggravated harassment must be a "result offense" and the result have occurred in Albany County (CPL 20.40, subd 2, par [a]). Defendant further argues that no conduct was herein alleged or proven to have occurred in Albany County nor is aggravated harassment a "result offense" and, therefore, the court lacked jurisdiction. We disagree. While our research fails to reveal any New York appellate decision dealing with this precise issue, there are several decisions from trial courts which uniformly conclude that the crime is committed at the place where the call is received (People v Fair, 60 Misc.2d 305; People v Brown, 53 Misc.2d 343; People v Anonymous, 52 Misc.2d 772). Common sense, logic and practical solution, in our view, dictate the same conclusion. We also reject defendant's contention that the trial court erred in allowing the prosecution to recall the witness Petersen to identify the defendant's voice after witness Noonan laid the proper foundation, but was unable to identify the voice (People v Olsen, 34 N.Y.2d 349, 353).

He is correct that the place where the call terminated is not identified so that for all purposes here it must be assumed that the said Van Buskirk was not within the county when he received the call. Defendant relies upon a series of cases involving obscene and malicious telephone calls wherein the jurisdiction of the court was in issue, citing People v. Daly ( 154 Misc. 149); People v. Anonymous ( 52 Misc.2d 772) and People v. Brown ( 53 Misc.2d 343). However, the issue in those cases was whether or not jurisdiction rested in the courts at the place where the complaints of calls were received.