People v Duran

[*1] People v Duran 2009 NY Slip Op 52020(U) [25 Misc 3d 1210(A)] Decided on October 7, 2009 Criminal Court Of The City Of New York, New York County Whiten, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Claudia Duran, Defendant.



2009NY007914



For the People:

New York County District Attorney's Office

ADA Lisa Franchini, Esq.

For the Defense:

Geoffrey S. Stewart, Esq.

350 Broadway, Suite 700

New York, NY 10013

Marc J. Whiten, J.

The defendant, Claudia Duran, is charged with twenty-six (26) counts, respectively, in violation of Penal Law ("PL") §240.30[1][a] and [b] (Aggravated Harassment in the Second Degree). The defendant has moved by omnibus motion for the following: (1) Dismissal of the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30[1][a] and 170.35[1]; (2) Dismissal of the accusatory instrument as unconstitutional; (3) Preclusion of evidence of defendant's prior convictions pursuant to People v. Sandoval; (4) Brady and Rosario; (5) a Bill of Particulars; and (6) Discovery. Upon the foregoing, the defendant's motion is decided as follows.

This court finds the information is facially sufficient, and that the claims as asserted are not violative of defendant's constitutional rights.

Dismissal of the accusatory instrument

Facial Sufficiency

Defendant's facial insufficiency argument is without merit. An information is facially sufficient if it meets three requirements. First, it must substantially conform to the formal requirements of CPL §100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, [*2]establish every element of the offense charged and defendant's commission thereof (CPL §§ 100.15[3] and 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." (People v Sylla, 7 Misc 3d 8, 10 [App Term, 2d Dept 2005]). Additionally, where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." (People v Casey, 95 NY2d 354, 390 [2000]; see also, People v. Konieczny, 2 NY2d 569 [2004]).

The factual part of the information, in pertinent parts, alleges the defendant committed the aforementioned crimes in the County and State of New York under the following circumstances:

Deponent states that from September 2, 2008, until November 7, 2008, deponent received approximately eighteen (18) text messages from the defendant. Deponent further states that in two (2) text messages on September 2, 2008, when deponent was inside of 1090 Amsterdam Avenue...the defendant's text messages stated in substance: I'M GONNA GET YOU. WHAT TIME YOU COMING OUT? YOU'RE A BAD FRIEND. YOU SHOULD HAVE TOLD ME TO MY FACE YOU WERE GOING TO SUE ME. YOU'RE A WHORE. Deponent further states that deponent is familiar with defendant's phone number and that said text messages were sent from defendant's phone number.

Deponent further states that on September 30, 2008, deponent received a package of papers in the mail addressed to her home address and with the handwritten return address of her lawyer in a private, personal injury suit against defendant's insurance company. Deponent further states that the above described paperwork contained numerous magazine clippings and insulting handwritten notes. Deponent further states that deponent is familar with defendant's handwriting, and recognizes the handwriting on this packet of paperwork to be that of the defendant.

Deponent further states that on November 7, 2008, deponent received approximately eight (8) text messages from the defendant, and that the defendant's text messages stated in substance: WHAT AN UNGRATEFUL BITCH YOU ARE. YOU'RE GOING TO BURN IN HELL. YOU'RE GONNA PAY FOR THIS. I HOPE THAT YOUR MONEY FROM YOUR LAW SUIT IS GONNA DO YOU WELL TO BUY YOU FAKE ASS FRIENDS. HOPEFULLY YOU DON'T GET BACK TO WORK BECAUSE NOW YOU ARE CRIPPLED. YOUR MONEY IS GONNA GO WITH YOUR CRIPPLED SELF AND YOUR CRIPPLED CAR. HOPEFULLY YOU DONT (sic) COME BACK TO WORK CUZ YOU'RE GONNA SEE WHAT YOU'RE GONNA PAY FOR. HOPEFULLY GOD FORGIVES YOU FOR THIS YOU'RE DOING. NOW YOU'RE A RIDICULOUS CRIPPLED FAKE ASS FAKE BITCH IDIOT. Deponent further states that these messages were sent from an anonymous email address, but that deponent knows they were sent by defendant given the context of the messages and that said messages were consistent with the past messages from defendant's phone and the above [*3]described mailed materials.

"A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm." (PL §240.30[1][a] and [b]).

As stated above, defendant seeks dismissal of the charges as facially insufficient on the grounds that the factual allegations fail to support the elements of the offense. Specifically, defendant contends the complaint fails to set forth facts which support that she acted with the requisite intent "to harass, annoy, threaten or alarm another person...in a manner likely to cause annoyance or alarm," (PL §240.30[1][a] and [b]), inasmuch as the alleged communications are innocuous in tone and contend. This court disagrees and finds the factual allegations set forth are sufficient to support the charge.

An information is sufficient if it alleges facts which provide reasonable cause to believe the defendant acted with the requisite mens rea. (People v. Inserra, 4 NY3d 30 [2004][element that defendant had knowledge of order of protection satisfied by allegation that defendant's name appeared on signature line of such order]). Moreover, a defendant's intent may be inferred from the act itself or from defendant's conduct and surrounding circumstances. (See, People v Chandler, 20 Misc 3d 139(A) [App Term 1st Dept. 2008]; People v Miguez, 153 Misc 2d 442 [App. Term, 1st Dept. 1992]; People v McGee, 204 AD2d 53 [2d Dept 1994]; People v Bracey, 41 NY2d 296 [1977]).

In the instant matter, defendant does not contest making the communications, which on their face provide reasonable cause to believe that it was defendant's conscious purpose to harass or at minimum to cause annoyance to the complainant. Moreover, defendant's intent to harass, annoy, threaten or alarm the complainant, a party in a civil suit against defendant, is fairly inferable from the factual allegations purporting that defendant sent numerous text messages, totaling fifty-two contacts, that contained statements, such as "I'm gonna get you. What time you coming out? You're a bad friend. You should have told me to my face you were going to sue me. You're a whore", which could fairly be characterized at minimum as annoying. (See, People v Chandler, 20 Misc 3d at 53 citing People v. Johnson, 208 AD2d 1051, 1052 [1994], see also, People v. Miguez, supra). Those factual assertions and the alleged volume of communications, "given a fair and not overly restrictive or technical reading," (People v. Casey, 95 NY2d 354, 360 [2000], are sufficient for pleading purposes to establish that the defendant acted with the intent to harass, annoy or alarm by transmitting numerous text messages and sending by mail insulting clippings, sufficient to support the charge of Harassment in the Second degree. (PL §240.30[1]). Finally, whether defendant's communications were [*4]innocuous in tone and contend, and thus not rising to a level resulting in harassment, annoyance, threat or alarm is an issue for the trier of facts to determine. (People v. Shack, 86 NY2d 529, 665 [1995][Post trial prosecution premised on privacy interest in an individual's right to be free from unwanted telephone calls]; see conversely, People v. Dietze, 75 NY2d 47, 51-52 [1989][Post trial prosecution premised on alleged communicated threats]).

Accordingly, this court finds that the information is facially sufficient, inasmuch as the non-hearsay factual allegations clearly set forth the offense allegedly committed, and give the defendant sufficient notice to prepare a defense while ensuring that she would not be tried twice for the same offense. (See People v. Kalin, 12 NY3d 225 [2009]).

Dismissal of Complaint as Unconstitutional

It is of note that even Freedom has its limits and barriers, usually measured by that point where one's actions violate the right of another. (See, People v. Shack, 86, NY2d 529, 535 [1995]["An individual's right to communicate must be balanced against the recipient's right to be let alone' in places in which the latter possesses a right to privacy"]). As Samuel Hendel; noted scholar, writer, and philosopher wrote, ". . .the fact, in short, is that Freedom, to be meaningful in an organized society must consist of an amalgam of hierarchy of freedoms and restraints."

As stated above, the defendant moves to dismiss the information contending that as applied to her, PL 240.30[1][a] and [b] is unconstitutional. Relying on People v. Dietze, supra, and People v. Shack, supra, the defendant argues that the communications, as alleged, are within the purview of her constitutionally protected right to free speech, as the alleged communications fail to contain excessive profanity, fighting words, provocative words, or threats.[FN1] This court disagrees and denies defendant's motion, finding defendant's reliance on People v Dietze and People v Shack misplaced.

It is a well settled Black Letter law that freedom of expression, pursuant to the First Amendment protections of the United States Constitution, is not absolute. (See, Chaplinsky v New Hampshire, 315 US 568, 571 [1942]). Accordingly, certain speech directed at an individual "which by their very utterance inflict injury or tend to incite an immediate breach of peace" are deemed unprotected. (Chaplinsky at 571-72). Moreover, as in the case at bar, "epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under [the Constitution]." (Chaplinsky, at 572 citation omitted). By the same accord, the Court of Appeals [*5]reiterated the same sentiment in People v. Shack, supra, stating that free speech is not absolute and that "a person's right to free expression may be curtailed upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.'" (Id at 535-536).

Turning to the case at bar, if this court, as defendant suggests, were to focus solely on defendant's statements, it may appear that the alleged statements are innocuous, inasmuch as they may fail to pose an immediate threat, are therefore within the purview of protected free speech. (See, People v Dietze, supra). However, the place and circumstances surrounding the statement are also factors in determining whether particular speech is protected by the First Amendment. (See, Chaplinsky at 571-72). Defendant relies on the holding in People v. Dietze, supra, where the Court of Appeals held that calling the complainant a "bitch" and her son a "dog" on a public street was protected speech under the First Amendment and the New York State Constitution. (Dietze at 50). Despite defendant's reliance on the Court of Appeals holding in People v. Dietze, Dietze is distinguishable from the case at bar, as the Penal Law section at issue was section 240.25 and the communications alleged, although directed at individuals were made on a public street and did not invade the complainant's privacy interests.

In People v. Dietze, supra, the Court of Appeals declared the Harassment section 240.25(2) of the Penal Code unconstitutional, finding that unless prohibited speech "presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" and that to prohibit abusive, vulgar or obscene language in public because it harassed, annoyed or alarmed another person infringed on an individual's protected right to Free Speech. (Dietze at 51). Even so, the court did acknowledge that imminent "genuine threats of physical harm fall within the scope of the statute" PL 240.25[1] and therefore, outside the purview of the First Amendment protections. (Id at 54). However, unlike innocuous threats under PL 240.25, the Court of Appeals, upholding the constitutionality of PL 240.30 as applied, in People v. Shack, supra, held that in the context of PL 240.30, "an individual has a substantial privacy interest in his or her telephone" to be free from unwanted calls, so much so as to limit a caller's right to free speech. (Id at 665). The court opined that PL 240.30 criminalized harassing conduct that invaded an individual's privacy, it did not criminalized speech. (Shack at 665, see also, People v. Mangano, 100 NY2d 569, 571 [2003] [PL 240.30 not unconstitutionally applied when criminal liability arises from harassing conduct and not from expression.]; People v. Dupont, 107 AD2d 247, 251 [App Div 1st Dept 1985][PL 240.30 applies to "the violation of one's privacy by means of obscene telephone calls.]; see also, People v. Kochanowski, 186 Misc 2d 441, 444 [App Term 1st Dept 2000]). Therefore, "[a]n individual's right to communicate must be balanced against the recipient's right to be let alone' in the places in which the latter possesses a right to privacy."(People v Shack at 535 [citation omitted]).

Applying the foregoing to the instant matter, the defendant herein is not being [*6]prosecuted for her speech, but rather, her culpability arises from harassing conduct, which is not entitled to constitutional protections. (See, People v. Shack, supra, at 536). The allegation that defendant sent the complainant fifty-two (52) text messages, if true, is understandably harassing or at minimum an annoying invasion of an individual's privacy interests to be free from unwanted telephone calls. (See, Shack, supra, at 665). Moreover, irrespective of the communication, it is clear from the allegations that defendant's alleged criminal culpability under PL 240.30 arises from defendant's invasive repetitive conduct, and therefore, PL 240.30 was not unconstitutionally applied. (See, People v. Shack, supra, at 536; see also, People v Mangano, supra).

For the foregoing reasons, defendant's motion to dismiss on constitutional grounds is denied.

Remaining Motions

Defendant's Sandoval application is deferred to the trial court. The People are reminded of their continuing obligation to supply Brady and Rosario materials. The defendant's motion seeking Bill of Particulars is granted to the extent required by CPL §200.95 and not previously provided by the People's Affirmation in Opposition and Voluntary Disclosure Form. The defendant's motion for pretrial discovery is granted to the extent provided in the Voluntary Disclosure Form included with the People's response.

This opinion constitutes the decision and order of the Court.

Dated:New York, New York______________________________

October 7, 2009Marc J. Whiten, JCC Footnotes

Footnote 1: Pursuant to the 14th Amendment of United State Constitution, the First Amendment protections are applicable to the states. (see U.S. Const Amendment XIV; Schneider v. New Jersey, 308 US 147, 160 [1939]; see also NY Const, Art I, §8).