People v Tomaino (Santino)
Annotate this CaseDecided on May 30, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-1198 S CR.
The People of the State of New York, Respondent,
against
Santino Tomaino, Appellant.
Appeal from a judgment of the Justice Court of the Town of East Hampton, Suffolk County (Lisa R. Rana, J.), rendered July 28, 2005. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.
Judgment of conviction reversed on the facts, accusatory instrument dismissed and fine remitted.
The People charged defendant with harassment in the second degree (Penal Law § 240.26 [3]) in that, inter alia, on January 26, 2003, he went to the home of the complainant, a court reporter, to demand transcripts he had ordered from her, and that in the course of that encounter his behavior was "generally . . . abusive" and included a
profanity. According to the accusatory instrument and supporting deposition, in light of his numerous prior letters and telephone calls to complainant, his following her in public, and their confrontations at her place of work, which constituted repeated acts or a course of conduct that lacked legitimate purpose, the incident alarmed complainant.
Viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]) and "indulging in all reasonable inferences in the[ir] . . . favor" (People v Ford, 66 NY2d 428, 437 [1985]), the trial proof was legally insufficient to prove the offense beyond a reasonable doubt. The complainant testified that beginning in late 1999, defendant requested transcripts of several court proceedings and thereafter communicated with her at her home, by mail and telephone, with respect to the non-production of certain of the transcripts. She acknowledged that she released her home address and home telephone number to the public for business purposes. Necessarily, these purposes included business-related complaints. The complainant admitted that she failed to produce certain of the transcripts within a reasonable time, that [*2]defendant's numerous calls and letters concerned no other matter than the unproduced transcripts, and that in response to defendant's complaints, the then Supervising Judge intervened by letter to facilitate the transcripts' production. Although defendant's communications occasionally contained matter which, as complainant asserted, may fairly be characterized as "bizarre," "objectionable," and "disturbing," it cannot be said that under the circumstances, they invaded "substantial privacy interests . . . in an essentially intolerable manner" (People v Dupont, 107 AD2d 247, 252 [1985] [internal quotation marks omitted]; see e.g. People v Mangano, 100 NY2d 569 [2003] [defendant's "crude and offensive" statements on an answering machine set up by a public agency to receive complaints not shown to implicate "any of the proscribable classes of speech and conduct"]).
The complainant also admitted that there was no factual basis for her belief that defendant followed her in public and that defendant's single confrontation with her at her place of work was not prearranged and was limited to a rude outburst regarding the unproduced transcripts. She also acknowledged a lengthy course of dealing with defendant, from late 1999 through September 2001, numerous incidents of which were unobjectionable, and both the court and the People acknowledged that defendant's conduct with respect to the complainant was "initially legitimate." The court determined that defendant's conduct became "corrupted" after an undefined period of time. However, we cannot construe the proof to establish a point in this relatively undifferentiated sequence of events when defendant's course of conduct may fairly be said to have evolved into one of harassment. Nor can we construe the incident of January 26, 2003, which followed by many months the event alleged to have been the immediately preceding incident, to have constituted the latest of "a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the [offense]" (People v Keindl, 68 NY2d 410, 421 [1986]; see also Sirlin v Town of Newcastle, 35 AD3d 713, 715 [2006] [a single act of misconduct does not violate Penal Law § 240.26 (3)]).
Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed.
In light of the foregoing, it is unnecessary to address defendant's remaining claims of error.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: May 30, 2007
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
