The People v. Herbert Aponte
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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The People &c.,
Respondent,
v.
Herbert Aponte,
Appellant.
Jonathan Garelick, for appellant.
Daniel Bresnahan, for respondent.
PIGOTT, J.:
We are asked on this appeal to decide whether attempted
stalking in the third degree (Penal Law §§ 110.00, 120.50 [3]) is
a legally cognizable offense.
Because stalking proscribes the
performance of certain acts, we hold that the attempt to commit
those acts is punishable as a criminal offense.
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No. 11
Defendant was charged by a misdemeanor complaint with
the crimes of stalking in the third degree (Penal Law § 120.50
[3]), harassment in the first degree (Penal Law § 240.25) and
harassment in the second degree (Penal Law § 240.26).
The
complaint alleged that defendant followed the complainant for
approximately three blocks in his vehicle as she walked from her
residence towards her church.
After the complainant returned
home to contact a friend for a ride to her church, defendant
followed the complainant and her friend approximately five
blocks, exited his vehicle and confronted the complainant while
she was sitting in her friend's vehicle.
complainant: "I am going to kill you."
Defendant then told the
The complaint further
alleged that defendant had followed the complainant approximately
25 times over the past three years, at various locations.
Criminal Court granted the prosecutor's motion to
reduce the charged count of stalking in the third degree to
attempted stalking in the third degree and, as a result,
defendant was tried without a jury.
He was found guilty of all
charges.
Defendant appealed arguing, as relevant here, that
attempted stalking in the third degree is not a legally
cognizable offense and the allegations in the complaint are too
conclusory to provide prima facie evidence of either a course of
conduct, as required for the stalking charge, or repeated acts of
harassment, as required for one of the harassment counts.
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The Appellate Term affirmed the judgment of conviction,
finding that the factual allegations of the complaint adequately
established every element of the charged offenses.
On the issue
of whether attempted stalking in the third degree is a legally
cognizable offense, the court concluded that it is.
A Judge of this Court granted defendant leave to appeal
and we now affirm.
A person commits stalking in the third degree when he
or she:
". . .
3. With intent to harass, annoy or alarm a
specific person, intentionally engages in a
course of conduct directed at such person
which is likely to cause such person to
reasonably fear physical injury or serious
physical injury, the commission of a sex
offense against, or the kidnaping, unlawful
imprisonment or death of such person or a
member of such person's immediate family"
(Penal Law § 120.50 [3]).
Defendant argues that a person may not attempt to
commit this crime because the statute already encompasses actions
in the nature of an attempt.
He points out that a defendant may
be guilty of the offense even if, for whatever reason, the
conduct in fact fails to result in any harm to the intended
target.
Under the Penal Law, "a person is guilty of an attempt
to commit a crime when, with intent to commit a crime, he engages
in conduct which tends to effect the commission of such crime"
(Penal Law § 110.00).
An attempt exists as an identifiable,
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separate offense from the crime that is being attempted (see
People v Campbell, 72 NY2d 602, 605 [1988]).
To prove an
attempt, the People must show that the defendant acted for a
particular criminal purpose, i.e. with intent to commit a
specific crime (id.).
We have previously held that "where a penal statute
imposes strict liability for committing certain conduct, an
attempt is legally cognizable, since one can attempt to engage in
conduct" (People v Prescott, 95 NY2d 655, 659 [2001]).
For
example, in People v Saunders (85 NY2d 339 [1995]), the viability
of attempted criminal possession of a weapon in the third degree
was at issue (Penal Law § 265.02 [1]).
This crime, we noted,
contained no "result" component; rather, the underlying weapons
possession crime proscribed particular conduct.
We held that the
defendant "may legally and logically attempt to act in the manner
proscribed by this penal statute--namely, to attempt to possess a
weapon" (id. at 341).
Similarly here, the relevant portions of the penal
statute for stalking penalize behavior that is likely to cause
harm, and do not require proof of actual harm to establish guilt.
While the conduct penalized is defined as engaging in "a course
of conduct . . . likely to cause" certain consequences, there is
nothing impossible about attempting to engage in such a course of
conduct.
Thus, if a telephone call or e-mail were "likely to
cause" the consequences referred to, an attempt to make such a
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No. 11
phone call or send such an e-mail - even if the communication
never reached its intended recipient - would be an attempt.
In
short, the statute strictly penalizes conduct and an attempt to
engage in that conduct is not a legal impossibility.
We further agree with the appellate court that the
factual allegations of the complaint established every element of
stalking in the third degree (Penal Law § 120.50 [3]) and
harassment in the first degree (Penal Law § 240.25).
Accordingly, the order of the Appellate Term should be
affirmed.
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Order affirmed. Opinion by Judge Pigott. Chief Judge Lippman
and Judges Ciparick, Graffeo, Read, Smith and Jones concur.
Decided February 10, 2011
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