People v Graziano (Anthony)

[*1] People v Graziano (Anthony) 2006 NY Slip Op 50506(U) [11 Misc 3d 137(A)] Decided on March 14, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 14, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
2003-866 S CR.

The People of the State of New York, Respondent,

against

Anthony J. Graziano, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (Howard M. Bergson, J.), rendered May 28, 2003. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.

Judgment of conviction affirmed.

Defendant was charged with harassment in the second degree (Penal Law § 240.26 [3]) following an incident on December 18, 2002. Although defendant attempts to portray the events of the night in question as a single outburst involving purely constitutionally protected speech, the record shows that on that night, defendant lay in wait for and/or approached the complainant, his ex-fiancee, at a bar on three occasions in the course of the evening. He was waiting outside the bar the first time complainant tried to exit. About a half an hour later, when a friend tried to escort her to her car because of defendant's continued presence, he approached her in his car, shouting abusive remarks at her and her friend to the effect that he would "get" her, that she was a "bitch" and a "whore" and that he knew the friend was "the one" with whom she was presumably now involved. He drove off and the complainant called the police. After the police arrived, defendant again returned to the bar, at which time he was questioned and arrested. Regardless of the content of defendant's remarks to the complainant, in the circumstances taken as a whole, his behavior falls squarely within the ambit of Penal Law § 240.26 (3), constituting a "course of conduct" having no legitimate purpose (see People v Shack, [*2]86 NY2d 529, 538 [1995]; see also People v Stuart, 100 NY2d 412, 428-429 [2003] [construing "no legitimate purpose" in context of anti-stalking statute]) and the court was entitled to find the foregoing based on the trial testimony.

Defendant's contention that he was engaging in protected speech is equally without merit; in the circumstances, his utterances, made in a bar parking lot late at night to a woman and her male companion, epitomize "the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances" outside the pale of the First Amendment (People v Shack, 86 NY2d at 538). Defendant's contention that the New York Court of Appeals holding in People v Dietze (75 NY2d 47 [1989]) renders Penal Law § 240.26 (3) unconstitutional as applied to him is without merit, as the present prosecution is directed to his overall conduct, of which his words form only one part, and not to his speech alone, as was the case in Dietze.

Intent to harass, annoy or alarm may, and often must be, inferred from the conduct complained of itself (see e.g. People v Collins, 178 AD2d 789 [1991]), and the court, sitting as trier of fact, could properly find that defendant intended to harass, annoy or alarm the complainant, from the unrebutted trial testimony described above.

Nor was the admission of evidence of prior incidents between defendant and the complainant improper. The evidence thus admitted appropriately completed the narrative background to the incident charged (see People v Resek, 3 NY3d 385 [2004]), and tended to shed light upon the issues of intent, motive and absence of accident or mistake, rebutting any attempt to portray the incident as an isolated outburst (see People v Bierenbaum, 301 AD2d 119, 149-150 [2002]; see also People v Molineux, 168 NY 264 [1901]). The admission of prior acts evidence is often especially appropriate in matters, such as the present case, that involve the domestic relations, or former domestic relations, of the parties (see Bierenbaum, 301 AD2d at 150). Moreover, the court was the trier of fact in the present case, and, in considering such evidence, "unlike a lay jury, a Judge by reasons of . . . learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination' based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision," further undercutting the possibility that an improper propensity inference would be drawn from the testimony (People v Moreno, 70 NY2d 403, 406 [1987], quoting People v Brown, 24 NY2d 168, 172 [1969]; see also People v Jones, 289 AD2d 1010 [2001]).

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 14, 2006