Opinion
22141
June 6, 2002
APPEAL from judgments of the Justice Court of Briarcliff Manor, Westchester County (Fred D. Weinstein, J.), rendered February 14, 2001, upon a verdict convicting defendant of four charges of aggravated harassment in the second degree.
Gerald Zuckerman, Ossining, for appellant.
Jeanine Ferris Pirro, District Attorney, White Plains (Stephen P. Hightower and Lois Cullen Valerio of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
Judgments of conviction affirmed.Penal Law § 240.30(1) does not prohibit mere speech or expression, but proscribes the use of, inter alia, a telephone to communicate in a manner likely to cause annoyance or alarm (cf., People v Shack, 86 N.Y.2d 529, 535; People v. Liberato, 180 Misc.2d 199, 201). We find the statute neither unconstitutional on its face nor as applied to the facts. Defendant's messages, left on complainants' workplace telephone answering machine, contained threats to themselves and their families, profanely abusive language, and thinly-veiled references to retaliation for the perceived nonperformance of their official duties.
The Legislature enacted this broadly-worded legislation to proscribe verbal conduct, by the communicative means set forth in Penal Law § 240.30(1), when it is intended to "harass, annoy or alarm" particularly where it is "impractical for an unwilling listener to avoid exposure to the objectionable communication" (People v. Shack, supra, at 536). Government employees, whose duties include significant public contact, are akin to captive audiences whose exposure to certain communications is "a matter of necessity, not of choice" (Lehman v. City of Shaker Hgts., 418 U.S. 298, 302) notwithstanding that dealing artfully with a "venting" public is a dimension of their employment. Public officers retain substantial privacy interests at their official workplaces which may be protected from invasion "in an essentially intolerable manner" (Cohen v. California, 403 U.S. 15, 19; People v. Shack, supra).
Significantly, the subsection charged lacks a provision that the communications be made with no legitimate purpose (compare Penal Law § 240.30 [1] with Penal Law § 240.30[2]). That the messages also contained unobjectionable content and were recorded at complainants' workplace (see, People v. James, NYLJ, Feb. 11, 1998 [App Term, 9th 10th Jud Dists]), a public agency, did not render the statute's enforcement an unconstitutional infringement on protected speech.
Viewing the evidence in the light most favorable to the People, as we must (People v. Contes, 60 N.Y.2d 620, 621), the evidence established defendant's guilt beyond a reasonable doubt. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15[5]; People v. Bleakley, 69 N.Y.2d 490, 495).
We have considered defendant's remaining claims of error and find them unpreserved or without merit (People v. Thomas, 50 N.Y.2d 467, 472; People v. Velasquez, 264 A.D.2d 450; People v. Wood, 260 A.D.2d 102, 110; People v. Webb, 177 A.D.2d 524, 525).
FLOYD, P.J., and DOYLE, J., concur; COLABELLA, J., taking no part.