People v Franco

[*1] People v Franco 2007 NY Slip Op 51011(U) [15 Misc 3d 1136(A)] Decided on May 18, 2007 Criminal Court Of The City Of New York, New York County Mandelbaum, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2007
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Richard Franco, Defendant.



2007NY004506



For the Defendant: Steven Banks, Esq., The Legal Aid Society (Fredric Bennett of counsel)

For the People: Robert M. Morgenthau, District Attorney, New York County (Nagasilpa Jujjavarapu of counsel)

Robert M. Mandelbaum, J.

Charged by information with aggravated harassment in the second degree, defendant moves to dismiss the accusatory instrument for facial insufficiency, contending that the sworn allegations fail to establish that he acted with the requisite criminal intent.

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 . . . communicates 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 [1] [a]).

The information alleges that on December 21, 2006, defendant sent a letter to the complainant stating, "I would like to start a friendship (relationship) with you. My name is Richard F. You know like: France, Focus, Funky smell, Fucker. I want to tell you a secret: I'm into do female foot massage. It will relax you and will make u feel so good and comfortable that it'll take you to another world." Eighteen days later, on January 8, 2007, defendant sent the complainant a second letter, in which he stated, "Please take my worryness for u in consideration and write back 2 me, you already have my e-mail address and my regular mailing address; otherwise with my heart broke I'll have to forget about u, moving forward with my life and believe me Cathy: that is something which I don't really want to do. By the way, here is my joke of the week for you: What is the difference between pasley [sic] and pussy? That: nobody eats pasley. Ha, ha, ha, ha. Bye sweetheart."

In order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant (see CPL 100.40 [1] [b], [c]), including the requisite mental state here, intent to harass, annoy, threaten or alarm (cf. People v Inserra, 4 NY3d 30 [2004] [allegation that defendant's name appeared on signature line of an order of protection held sufficient to allege mens rea element essential to charge of criminal contempt that defendant had knowledge of the order's contents]).

Intent, of course, involves the internal workings of the mind and is therefore incapable of direct proof in the absence of an express declaration by the perpetrator or admission by the defendant. Typically, intent must "be inferred from the act itself . . . [or] from the defendant's conduct and the surrounding circumstances" (People v Bracey, 41 NY2d 296, 301 [1977] [internal quotation marks and citations omitted]; see also People v Smith, 79 NY2d 309, 315 [*2][1992]).

In the instant case, defendant's conduct fails to establish reasonable cause to believe that he acted with the intent to harass, annoy, threaten or alarm the complainant. Rather, the only inference reasonably drawn from the facts alleged is that defendant acted in a misguided effort to woo the complaining witness. But in the absence of any threats, the mere writing of a love letter, even when unrequited, is not criminal.

To be sure, the bombardment of a recipient with multiple unwanted missives can itself constitute aggravated harassment (see People v Shack, 86 NY2d 529, 535-536 [1995] ["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'" (quoting Cohen v California, 403 US 15, 21 [1971])]; see also Penal Law § 240.30 [2]). But the mailing of only two letters, standing alone, is insufficient to establish the requisite statutory intent (cf. People v Taylor, 2002 NY Slip Op 50023[U], *3 [App Term, 1st Dept 2002] ["(t)he two isolated phone calls complained of, neither of which was vulgar, derisive or threatening in content, were insufficient to establish" an intent to harass, annoy, threaten or alarm]).

Of course, even a single letter or telephone call may suffice to establish an intent to harass or annoy where a defendant persists in attempting to communicate despite having previously been asked not to do so. After all, "permitting communications to be foisted upon an unwilling recipient in a private place would be tantamount to licensing a form of trespass" (Shack, 86 NY2d at 536). Here, however, the information fails to allege that defendant was advised, upon receipt of the first letter by the complainant, that any further contact would be unwelcome.

That defendant lacked the intent to pursue an unreceptive audience is demonstrated by the content of his second epistle, in which he expressly stated that if he did not get a response this time, he would, "with my heart broke," be forced "to forget about u" and to "mov[e] forward with my life," even though "that is something which I really don't want to do." Of course, inasmuch as the object of defendant's unreciprocated affection ultimately complained of his writings to the police, he is now undeniably on notice that any further communication will be unwelcome, and therefore constitute harassment (see Rowan v United States Post Off. Dept., 397 US 728, 736-737 [1970] ["a mailer's right to communicate must stop at the mailbox of an unreceptive addressee"]).

That the letters included crude and profane attempts at humor does not make them criminal (see People v Goldstein, 196 Misc 2d 741, 747 [App Term, 2d Dept 2003] ["exclude(d) from the statute's ambit (is) speech which is merely unpleasant to the recipient"]). Simply put, defendant's ineptitude, and even offensiveness, as a suitor is insufficient to establish the charged offense. Were it otherwise, defendant's prosecution would violate the First Amendment made applicable to the states through the Fourteenth Amendment (see US Const Amend XIV; Schneider v New Jersey, 308 US 147, 160 [1939]) and its state constitutional counterpart (see US Const Amend I; NY Const, art I, § 8). Speech can be constitutionally proscribed only when it constitutes "fighting words" (see Chaplinsky v New Hampshire, 315 US 568, 572 [1942]); a "true threat" (see Virginia v Black, 538 US 343, 359 [2003]); an incitement to imminent lawless action (see Brandenburg v Ohio, 395 US 444, 447 [1969]); obscenity (see Roth v United States, 354 US 476, 485 [1957]); or defamation (see Beauharnais v Illinois, 343 US 250, 266 [1952]) [*3]none of which is applicable here.[FN1]

Thus, because defendant's letters do not "fall within any of the proscribable classes of speech or conduct" (People v Mangano, 100 NY2d 569, 571 [2003]; see also People v Dietze, 75 NY2d 47, 51 [1989] ["unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" (citations omitted)]), his motion to dismiss must be granted.

This opinion shall constitute the decision and order of the court. Footnotes

Footnote 1: Fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" (Chaplinsky, 315 US at 572). True threats "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (Black, 538 US at 359 [citations omitted]).