Summary
upholding a conviction for harassment against an as-applied constitutional challenge because the defendant's intent was to harass, not to communicate
Summary of this case from United States v. WaggyOpinion
February 16, 1977
Appeal from the City Court of White Plains, WILLIAM V. CUDDY, J.
Francis J. Smith, appellant pro se. Carl A. Vergari, District Attorney, for respondent.
MEMORANDUM. Judgment of conviction affirmed. Defendant appeals from a judgment convicting him, after a jury trial, of aggravated harassment (Penal Law, § 240.30). Prior to trial, defendant moved to dismiss the information on the ground that the statute defining the offense is unconstitutionally vague and overbroad.
Defendant called the desk officer at the White Plains Police Department on June 23, 1974, in regard to a complaint he had made. A previous investigation disclosed that the matter was civil rather than criminal in nature and defendant was so informed. Despite this, in the next 3 hours and 20 minutes defendant called 27 more times in regard to the identical complaint. During this time, defendant was repeatedly told not to call again because he was tying up the police lines. The charge permitted the jury to convict under either subdivision of section 240.30 Penal of the Penal Law and substantially adopted the language of the statute.
A person is guilty of aggravated harassment under subdivision 2: "when, with intent to harass, annoy, threaten or alarm another person, he: Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication" (Penal Law, § 240.30, subd 2). This subdivision "embraces an offense defined in former Penal Law § 1423(6) — tieing up business telephone lines by repeated calls — but is substantially broader in that it also covers the presently unpenalized practice of driving a person to distraction by repeatedly dialing his number" (Commission Staff Note, Penal Law, § 240.30, subd 2; emphasis added).
Although defendant initially had a "purpose of legitimate communication," the record is clear that, at least as to the later calls, his intent was not to communicate but solely to harass. With regard to defendant's constitutional challenge, we note that this "form of trespass" would not be entitled to constitutional protection even if there had been an intention to communicate (Cohen v California, 403 U.S. 15, 21; Rowan v Post Office Dept., 397 U.S. 728; Kovacs v Cooper, 336 U.S. 77). Moreover, the language of subdivision 2 does not suffer from vagueness. In any case, defendant, to whom it clearly applied, may not successfully challenge it on this ground (Parker v Levy, 417 U.S. 733, 756; Broadrick v Oklahoma, 413 U.S. 601, 608, 611-612).
A person is guilty of aggravated harassment under subdivision 1: "when, with intent to harass, annoy, threaten or alarm another person, he: Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm" (Penal Law, § 240.30, subd 1). This subdivision "embraces two former Penal Law offenses (former §§ 551 [sending threatening letters], 555 [malicious and obscene phone calls]). The new offense, however, is substantially broader than the collective former pair" (Commission Staff Note, Penal Law, § 240.30, subd 1). Thus, even if, as here, the content of the communication is unobjectionable, a violation of subdivision 1 will occur if the communication is directed to an unwilling listener under circumstances wherein "substantial privacy interests are being invaded in an essentially intolerable manner" (Cohen v California, supra, p 21). Accordingly, the evidence was also sufficient to establish defendant's guilt under this subdivision.
As we are unable to conclude that defendant's conviction rests exclusively on subdivision 2, it is necessary to consider defendant's constitutional challenge to subdivision 1 (Stromberg v California, 283 U.S. 359).
In regard to the vagueness claim, it is enough to say that "even if the outermost boundaries of [subdivision 1 are] imprecise, any such uncertainty has little relevance here, where appellant's conduct falls squarely within the 'hard core' of the statute's proscriptions" (Broadrick v Oklahoma, 413 U.S. 601, 608, 611-612, supra; Parker v Levy, 417 U.S. 733, 756).
Defendant has standing to challenge the facial constitutionality of this subdivision on the ground of overbreadth, even though, as applied to his conduct, it is neither vague, overbroad, nor otherwise invalid (Gooding v Wilson, 405 U.S. 518; Bigelow v Virginia, 421 U.S. 809, 814-817; Broadrick v Oklahoma, 413 U.S. 601, 611-612, supra). However, it is our obligation to construe the statute, if possible, to preserve its constitutionality (People v Epton, 19 N.Y.2d 496, 505, cert den 390 U.S. 29; People v Heller, 33 N.Y.2d 314, 331, cert den 418 U.S. 944; McKinney's Cons Laws of NY, Book 1, Statutes, § 150, subd c).
In accord with the Commission Staff Note, we conclude that subdivision 1 was intended to include communications which are obscene (see, e.g., Miller v California, 413 U.S. 15), threats which are unequivocal and specific (see, e.g., United States v Kelner, 534 F.2d 1020), communications which are directed to an unwilling recipient under circumstances wherein "substantial privacy interests are being invaded in an essentially intolerable manner" (Cohen v California, 403 U.S. 15, 21, supra; cf. US Code, tit 47, § 223, subd [1], pars [B]-[D]; see, also, Rowan v Post Office Dept., 397 U.S. 728, supra), communications "which by their very utterance * * * tend to incite an immediate breach of the peace" (Chaplinsky v New Hampshire, 315 U.S. 568, 572; see Gooding v Wilson, supra) and written communications intended to simulate court process of any kind. The communication must, of course, also be made "in a manner likely to cause annoyance or alarm" and "with intent to harass, annoy, threaten or alarm another person." As so construed, subdivision 1 does not, in our opinion, suffer from any constitutional infirmity.
As previously indicated, the trial court's charge substantially adopted the language of the statute. Defendant, however, did not object to the charge or claim that the statute, as applied to his conduct, violated his First Amendment rights. Moreover, the record discloses that the impropriety was not in the complaint made by defendant but in its repetition. Consequently, there is no danger that defendant was convicted, in whole or in part, for engaging in protected activity and a new trial is, therefore, unnecessary. (Cf. Street v New York, 394 U.S. 576; Terminiello v Chicago, 337 U.S. 1.)
We have considered defendant's remaining contentions and find them to be without merit.
Concur: FARLEY, P.J., PITTONI and SILBERMAN, JJ.