Opinion
No. 2002NY009927.
Decided April 6, 2004.
Office of the New York County District Attorney by: ADA Charles Linehan, NY.
New York County Defender Services by: Christopher W. Boyle, Esq., New York, NY.
The defendant is charged with two counts of aggravated harassment in the second degree (PL § 240.30 [2] and two counts of stalking in the fourth degree (PL § 102.45 [1] [2]. He has brought a motion to dismiss on the grounds of previous prosecution (CPL § 40.20), timeliness of prosecution (CPL § 30.10) and lack of geographical jurisdiction (CPL § 20.40. He has also moved for an order precluding the introduction of evidence of any prior acts which were the subject of a an harassment prosecution in King's County. The King's County prosecution involved the same complainant as the New York County prosecution and involved much of the same time periods.
On September 29, 2003, the defendant pled guilty in New York City Criminal Court, King's County, to one count of harassment in the second degree (PL § 240.26) under Docket Number 2002KN014607 in satisfaction of an information charging him with eight counts of aggravated harassment in the second degree (PL § 240.30 [2]), one count of harassment in the first degree (PL § 240.25) and one count of harassment in the second degree (PL § 240.26). The King's County aggravated harassment charges were based on threatening phone calls that the defendant allegedly made to the complainant at her home in King's County and her place of business in New York County between March 7, 2000 and February 1, 2001. The King's County harassment charges were based on the defendant's appearance at the complainant's place of business in New York County on January 17, 2002 and his leaving a note with the doorman at the complainant's King's County residence later that day.
The New York County Prosecutor's Information charges the defendant with aggravated harassment in the second degree in that the defendant, between January 1, 2000 and February 14, 2002, with the requisite intent, communicated by telephone (count 1) and made a telephone call (count 2). The New York County stalking charges each broadly allege that the defendant engaged in a course of conduct from January 1, 2000 to February 14, 2002.
CPL § 40.20, New York's double jeopardy statute, provides that "a person may not be twice prosecuted for the same offense". The defendant argues that the prosecution of the New York County harassment charges is barred under CPL § 40.20 because the defendant has already been prosecuted for these offenses in his King's County harassment case. While the charges in the New York County Prosecutor's Information cover much of the same period (January 1, 2000 to February 14, 2002) and the underlying Information raises many of the same factual allegations as the King's County Information, the New York County harassment charges are also premised upon additional acts not encompassed within the King's County prosecution, namely, a telephone call to the complainant at her New York County place of business between July 19, 2001 and July 24, 2001 and another telephone call to the same place between November 15, 2001 and November 30, 2001. Since an offense is committed whenever any conduct is performed which violates a statutory provision (CPL § 40.10), those two phone calls each constituted a separate offense and each constituted an offense not contemplated by the King's County prosecution. The defendant, therefore, is not being twice prosecuted for the same offense.
Likewise, although it is not entirely clear from the defendant's papers whether he has moved to dismiss the two stalking charges, such a motion would also be denied. Similar to the harassment charges, the New York County stalking charges are also premised on additional acts outside the time periods encompassed by the King's County case, namely, that the defendant appeared at the complainant's New York County workplace on January 18, 2002 and again on February 14, 2002. Even were there no additional acts, the stalking prosecutions would still not be barred by double jeopardy. CPL § 40.20(2)(b) permits a successive prosecution for two offenses based upon the same act or criminal transaction where "each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil". See People v. Bryant, 92 NY 2d 216 (1998). The King's County prosecution included various harassment charges but did not include any stalking charges.
Double jeopardy would not preclude the prosecution of the stalking charges because the stalking statutes are distinct from the harassment statutes and have different essential elements and different public policy goals. While harassment statutes may include stalking-like behavior, they are part of a group of Penal Law Article 240 statutes essentially designed to preserve public order. Recognizing the high correlation between stalking behavior and the infliction of physical violence or sexual assault, the Legislature concluded that the existing laws needed to be strengthened and it created these separate stalking statutes in 1999. In reviewing the history of the harassment and stalking statutes, the Legislature noted:
In 1992, the Legislature took an important step towards recognizing that stalking requires stronger enforcement measures by amending New York's menacing and harassment sections to include stalking behavior within the definition of these crimes. With this act, New York creates the separate crime of stalking. This act will protect victims by providing real and effective sanctions for stalking conduct even at its earliest stages.
L. 1999, c. 635, § 2, (1999 McKinney's Session Laws of New York).
The stalking statutes are focused on protecting the victims from the physical and emotional harm that stalking inflicts on those victims. As one commentator has pointed out, stalking behavior under the harassment statutes requires a specific intent on the part of the stalker while the stalking statutes focus on the victim's state of mind and the likely fear the stalkers actions will cause the victim. Unlike the harassment statutes, the stalker's intent under the stalking statutes goes to a particular course of conduct, not to a specific result. (See People v. Stuart, 100 NY2d 412 which upheld the constitutionality of New York's anti-stalking statutes).
Rosenbaum, D.J., "Domestic Violence New York's Anti-Stalking Act of 1999", New York State Capital District Anti-Stalking Task Force Report, August, 2000.
Accordingly, there is nothing in CPL § 40.20 which would preclude the prosecution of any of the New York County charges on the ground of double jeopardy.
Likewise, the defendant's motion to dismiss on the basis of lack of geographical jurisdiction under CPL § 20.20 is denied. The four charges in the Prosecutor's Information are sufficiently grounded in New York County to overcome any objection based on lack of geographical jurisdiction. The accusatory instruments allege conduct which occurred within New York County sufficient to establish an element of each offense. CPL § 20.40 requires nothing more. There is also nothing in that statute which would limit the introduction of evidence of conduct which occurred in another county.
Defendant's motion to dismiss on statute of limitations grounds pursuant to CPL § 30.10 is also denied. This action was commenced on February 15, 2002 and is sufficiently supported by allegations of acts committed after February 15, 2000, which, if true, would support a conviction on each count.
The remainder of the defendant's application is essentially a motion to preclude at trial any testimony concerning any of the defendant's actions which were the subject of the King's County prosecution upon the ground that such testimony would violate CPL § 20.40, § 30.10 and § 40.20. Such a motion is really a reverse Molineux-type motion which is more properly reserved for the trial court. This court simply notes that there are no double jeopardy, statute of limitations or geographical jurisdiction impediments to the introduction of otherwise relevant and admissible evidence at trial. Again, these are evidentiary issues best reserved for the trial court.
For the foregoing reasons, the defendant's motions are denied in their entirety.
This constitutes the decision and order of the Court.