Opinion
2015NY063390
04-28-2016
The People of the State of New York v. Helen Perez, Defendant.
For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Elizabeth D'AntonioFor the Defense: The Legal Aid Society, by Jamie Niskanen-Singer, Esq.
For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Elizabeth D'AntonioFor the Defense: The Legal Aid Society, by Jamie Niskanen-Singer, Esq.
Defendant, charged with violating § 240.26(3), moves to dismiss, arguing that the statute is unconstitutionally overbroad, in that has a "chilling effect on a lot of annoying speech and speech infused conduct." Singer Aff. at ¶ 45. This Court however, concludes that to the extent that § 240.26(3) criminalizes speech, it has "the constitutionally necessary limitations on its scope," People v. Golb, 23 NY3d 455, 467 (2014), and is not overbroad. In the alternative, defendant argues that the information is facially insufficient as to the "no legitimate purpose" element. The Court rejects that argument as well.
Accordingly, for the reasons follow, defendant's motion to dismiss is DENIED on both grounds. I. FACTUAL BACKGROUND A. The Allegations
According to the information, for a period of time culminating on September 29, 2015, the complainant threatened the defendant and told him that she had showed his picture to friends of hers so that they could identify and harm him. She also sent the complainant vulgar and threatening text messages, all because the complainant did not want to be romantically involved with her any more. B. Legal Proceedings Defendant was arraigned September 29, 2015, on a misdemeanor complaint charging her with aggravated harassment in the second degree (Penal Law § 240.30(1)(a)), and harassment in the second degree (Penal Law § 240.26(3)). The Court released the defendant and adjourned the case for conversion. On November 2, 2015, off-calendar, the People filed a Certificate of Readiness and the complainant's Domestic Incident Report (DIR). On January 4, 2016, the Court held that the DIR only converted the § 240.26(3) count, and the People moved to dismiss the count charging § 240.30(1)(a).
Defendant filed this motion on February 4, 2016. The People, given first until February 17 and again until March 9 to respond, declined to do so. In a letter to the Court dated March 17, 2016, the Office of the Attorney General indicated that it has elected not to intervene. The matter has been sub judice since March 17. II. THE INFORMATION
The DIR which, together with the misdemeanor complaint, constitutes the information in this case, provides:
The problem is that I don't wanna be with her and she t[hrea]en me whit [sic] people from her block talking about she also talking to guy friends of her[s] showing them pictures of me so they could do something to me. This is why I came to the police cause I don't want any problems whit [sic] her. I have my kids to worr[y] about. I have text message of her telling me a bunch of nasty things threats all cause I don't want to be whit [sic] her.The DIR, signed and sworn to by the complainant, is dated September 29, 2015. III. DISCUSSION 1. The Statute
Penal Law § 240.26(3) provides that a "person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person ... [h]e engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." This section is a "catchall provision" that the Legislature "deemed necessary because of the impossibility of compiling a comprehensive list of the numerous specific kinds of conduct logically falling within the proscriptions of the harassment' offense." Donnino, William C., Practice Commentary to Penal Law § 240.26, quoting the 1964 Staff Notes of the Commission on Revision of the Penal Law. 2. Section 240.26(3) Is Not Unconstitutionally Overbroad
In People v. Golb, 23 NY3d 455 (2014), the Court of Appeals held that the former Penal Law § 240.30(1)(a), which made it a crime to "communicate with a person" telephonically with the "intent to harass, annoy, threaten or alarm," was overbroad. And, as defense counsel correctly notes, Singer Aff. at ¶ 34, this Court has held that, even post-Golb, Penal Law § 240.30(2), a statute that is closely related to both that invalidated by Golb and § 240.26(3), is not overbroad. People v. Dixon, 44 Misc 3d 1216(A) (Crim Ct NY County 2014).
For largely the reasons identified in Dixon, § 240.26(3) is likewise not overbroad. Dixon relied primarily on the fact that § 240.30(2) criminalizes conduct, and not pure speech. "[T]his section covers some forms of activity that are not pure speech, such as repeatedly telephoning another person and hanging up. That conduct is, in essence, a form of stalking - akin to repeatedly making unwanted appearances outside another person's residence, or persistently following another person as she goes about her day - that is clearly not protected by the First Amendment." Dixon, at *4.
This same distinction clearly saves § 240.26(3), even more so than it did § 240.30(2), since § 240.26(3) covers only conduct - "a course of conduct" or "repeated[] ... acts" - and does not single out speech at all. To defense counsel, this is "an insufficient response to a constitutional challenge." Singer Aff. at ¶ 47. That, the Court thinks, is subject to debate. But in any event it is the distinction the Court of Appeals requires this Court to make.
The Court of Appeals' decisions in this area have only found overbroad statutes that criminalize pure speech, and have never applied the overbreadth concept to statutes that criminalize conduct. For example, the statute held to be overbroad in Golb made it a crime to "communicate with a person." 23 NY2d at 467. Likewise, in People v. Deitz, 75 NY2d 47, 49 (1989), the court found overbroad the former Penal Law § 240.25(2), which criminalized using "abusive" language with the intent to "harass" or "annoy" another person: "[T]he statute, on its face, prohibits a substantial amount of constitutionally protected expression." Id. Finally, post-Golb, in People v. Marquan M., 24 NY3d 1, 9 (2014), the court invalidated a local "cyberbullying" ordinance of "alarming breadth" that, again, prohibited pure speech. Id.
And it is not just the court's recent overbreadth decisions that zero in on pure speech in this way. People v. Bunis, 9 NY2d 1 (1961), invalided Section 436-a of the former Penal Law, which made it a crime to sell coverless magazines because that section went "too far" in prohibiting speech, while People v. Kuc, 272 NY 72, 75 (1936) found overbroad a local ordinance that prohibited the sale of "newspapers or similar publications" between 9 p.m. and 7 a.m., noting that "[t]his ordinance goes too far."
Unlike all of these overbroad enactments, § 240.26(3) does not specifically prohibit speech or communication. It does not even mention it. Section 240.26(3) proscribes "conduct" and "acts." And, while it is of course true that under certain circumstances "acts" might be prosecuted under § 240.26(3) that include - or even, as here, comprise in their entirety - communication, this does not render the section overbroad. Even where a statute can be construed to "proscribe speech, a declaration of facial overbreadth does not automatically follow." People v. Shack, 86 NY2d 529, 535 (1995). Where the victim's interest in being left alone "plainly outweigh[s]" the "free speech right of the intruder," and the statute properly balances those competing interests, it is not overbroad. Id. at 536, citing Rowan v. Post Office Department, 397 U.S. 728 (1970).
Section 240.26(3) clearly strikes this balance appropriately. Whether the particular interest of the victim is characterized as a "privacy" interest, as it was in Shack, 86 NY2d at 535-36, or as a more general right "to be let alone" as it was in Rowan, 397 U.S. at 736, § 240.26(3) protects the victim from unwanted harassing behavior in a manner that does not violate the First Amendment rights of the "intruder." Shack, 86 NY2d at 536.
This is so in particular here because even in cases where the defendant is being prosecuted for pure speech under § 240.26(3), that section, unlike the statute invalidated in Golb, has the "necessary limitations on its scope," 23 NY3d at 467, that were missing there. Section 240.26(3), when applied to speech or, as defense counsel terms it "speech infused conduct," prohibits only speech that lacks a "legitimate purpose" and that actually "alarm[s] or seriously annoy[s]"the recipient. It is almost certainly true that either of those limitations alone would save the statute. See Shack, 86 NY2d at 536 (statute permissibly subordinates caller's right to free speech to the recipient's right to be free of telephone calls that lack a legitimate purpose); People v. Bakolas, 59 NY2d 51, 55 (1983) (statute prohibiting speech that actually caused "public inconvenience, annoyance or alarm" was not overbroad). That § 240.26(3) has both limitations, however, clearly ensures that it is not overbroad.
Accordingly, defendant's motion to dismiss based on the ground that § 240.26(3) is overbroad is denied. 3. The Information is Facially Sufficient
Defendant argues, in the alternative, that the information is facially insufficient because it does not make out a prima facie case as to the "no legitimate purpose" element. Singer Aff. at ¶¶ 17-18. The Court disagrees.
The "no legitimate purpose" element is common to a number of Penal Law statutes, including § 240.26(3). As a general matter, "no legitimate purpose" means that the conduct prohibited by the statute - which is generally, but not always, a communication - lacks any "expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." Shack, 86 N.Y.2dat 538. Or, as the Court of Appeals put it in People v. Stuart, 100 NY2d 412, 428 (2003), " no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten."
Under the specific terms of § 240.26(3), conduct serves "no legitimate purpose" when it demonstrates no purpose other than to cause the result prohibited by the statute, which is to "alarm or seriously annoy" the victim. See., e.g., People v. Romero, 50 Misc 3d 1202(A) (Crim Ct NY County 2015) ("no legitimate purpose" means that "the defendant had no purpose other than to cause the harm or outcome specified by the particular statute"). This is so regardless of whether the particular activity is conduct or pure speech. In cases involving communications or communicative conduct, this Court examines the communications in their totality to determine the facial sufficiency of the "no legitimate purpose" element. People v. Spruill, 49 Misc 3d 1202(A) (Crim Ct NY County 2015) ("[I]n totality, the information describes communications that are insulting, degrading and, on one occasion, threatening, even if not a true threat.'")
Read in this light, this Court has little trouble concluding that "in totality," id., the communications from the defendant to the complainant, as described in the information, demonstrate no purpose other than to alarm or seriously annoy the complainant. The information clearly describes communications that lack any expressive value other than to intimidate the complainant. Shack, 86 N.Y.2dat 538; Stuart, 100 NY2d at 428. Those communications were threatening and belligerent, with no other legitimate content at all. First, the defendant threatened that she had been showing the complainant's picture to others in her neighborhood so that they could "do something to" him. This so alarmed the complainant that he actually went to a police precinct to complain about it. The complainant then went on to cite the "nasty things" the defendant had said to him and "threats" that she had made as his reasons for being fearful of her. Finally, the complainant attributed all of this behavior to the fact that he broke up with the defendant.
It is hard to see these facts as materially different from those in Spruill, 49 Misc 3d 1202(A), in which this Court rejected a similar facial sufficiency challenge. There, the information alleged that the defendant was "harassing" the complainant through text messages and phone calls in which the defendant called the complainant names and told her that she was worthless except as the recipient of his violent acts. Id. He also threatened to take away their children and her home. Id. While it is true that, there, the nature of the threats was pled with somewhat more specificity than here, the degree of specificity of the pleading is not of great import in determining whether a communication had a "legitimate purpose." As the Court of Appeals has instructed, it is the intent to threaten or intimidate itself that matters in determining whether a communication lacked a "legitimate purpose," and not the actual content of the threat. Stuart, 100 NY2d at 428. While a court might examine the content as an aid to determining whether the "no legitimate purpose" element has been satisfied, see, e.g., People v. Winsbarrow, 48 Misc 3d 1231(A) at *9 (Crim Ct NY County 2015), such an examination is not a necessary prerequisite to finding the element sufficiently pled.
Accordingly, the Court concludes that the information is facially sufficient; it makes out a prima facie case of the "no legitimate purpose" element of Penal Law § 240.26(3). V. CONCLUSION
For the foregoing reasons, defendant's motions to dismiss is denied. This constitutes the Decision and Order of the Court. Dated: April 28, 2016_______________________ New York County, New YorkSteven M. Statsinger Judge of the Criminal Court