People v Masullo
Annotate this CaseDecided on June 26, 2007
Just Ct of Town of Ossining, Westchester County
People of the State of New York,
against
John A. Masullo, Defendant.
06100076
Mark A. Rubeo, Jr., Esq.
MARK I. REISMAN, P.C.
30 State Street, Suite 102
Ossining, New York 10562
Robert E. Mayes, Esq.
Assistant District Attorney
Office of the Westchester County District Attorney
25 Moore Avenue
Mount Kisco, New York 10549
Francesca E. Connolly, J.
Defendant is charged with two counts of violating Penal Law §240.26(3), harassment in the second degree, and two counts of Penal Law §215.50(3), criminal contempt in the second degree, based upon an alleged violation of a Family Court Order of Protection. Defendant moves to dismiss the complaint pursuant to C.P.L. §170.30(1)(a) upon grounds of facial insufficiency. With regard to the harassment charges, defendant maintains that the words that allegedly constitute harassment were uttered for a "legitimate purpose" and were constitutionally protected, and that the allegations of a course of conduct as required by the statute are insufficient, non-specific, and conclusory. Defendant further maintains that since the charges of criminal contempt in the second degree are based upon the harassment charges, the contempt charge must also be dismissed. The People oppose the motion to dismiss.
For the reasons set forth herein, viewing the facts in a light most favorable to the People, the Court finds that the allegations in the accusatory instruments are facially sufficient, and therefore, defendant's motion to dismiss is denied.
FACTUAL BACKGROUND
A Family Court Order of Protection entered on July 27, 2006 orders the defendant to "[r]efrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any other criminal offense against [the complainant.]"
On October 4, 2006, defendant was charged by criminal complaint with two counts of harassment in the second degree and two counts of criminal contempt in the second degree based upon the allegations made by complainant in a supporting deposition.
[*2]
According to the complainant, on October 2, 2006, at about 6:45 a.m., the defendant "was in my face making animal noises like an inch away from me." This conduct made the complainant feel "intimidated," so she grabbed the phone intending to call the police. At that point the defendant told her that she "better put that phone down," to which she complied, "because I figured that he would have grabbed it and made a big scene after that." She decided that it was best for her to leave. The complainant further alleges that "[a]s a result of this behavior, I feel severely annoyed and extremely frustrated at having [defendant] constantly badgering me and calling me names, which occurs oftentimes in front of our kids. . . . This makes me feel additionally harassed. I leave my house all the time with the kids to get away from [the defendant.]"
In her supporting deposition, the complainant further alleges that on October 4, 2006 at about 4:45 p.m., defendant began yelling at her about a letter sent by her lawyer to a Judge, the condition of her car, and money issues. Defendant then went outside and stated, in proximity of their son and his friend, that the complainant was the "town hoe." Defendant then went inside and "continued to rant" and called complainant "liquor and B.Y.B." The complainant further alleges that defendant continually calls her "Goldie" in front of the children, and has told the children "that he calls me Goldie because I am a dog and I am supposed to fetch." The supporting deposition alleges that these words make her feel "degraded," "frustrated," "seriously annoyed," and "stressed."
The criminal complaint contains both an accusatory part and a factual part. The accusatory part sets forth the designated offenses by name, statutory section, and recites the elements of the offenses. The factual part contains the complainant's statement to support the charges.
DISCUSSION/ANALYSIS
Under Penal Law §240.26(3), "[a] person is guilty of harassment in the second degree when . . . with intent to harass, annoy or alarm another person, he or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."
The statute requires proof that the defendant engaged in more than an isolated verbal or physical act. The term "course of conduct" has been defined as "a pattern of conduct composed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose in the mind of the actor." People v. Hotchkiss, 59 Misc 2d 823, 824, 300 N.Y.S.2d 405 (Co. Ct. Schulyler Co. 1969). Where a defendant's actions are "calculated and deliberate" in relation to the victim, a one-time act may be sufficient to establish a "course of conduct" under the statute. People v. Tralli, 88 Misc 2d 117, 387 N.Y.S.2d 37 (App. Term 9th and 10th Judicial Dist. 1976). However, a single emotional outburst, no matter how abusive and [*3]cruel, is not criminal under the harassment statute. People v. Hogan, 172 Misc 2d 279, 664 N.Y.S.2d 204 (Crim. Ct. Kings Co. 1997); People v. Zito, 2001 WL 1263340 (City Ct. New Rochelle 2001).
Under the harassment statutes, a communication that serves "no legitimate purpose" has been held "to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." People v. Shack, 86 NY2d 529, 538, 634 N.Y.S.2d 660 (1995). A defendant's use of vulgar and abusive language to express frustration about court-ordered child support payments, has been held to be communication with a "legitimate purpose," and may not serve as a basis for criminal prosecution for harassment. People v. Zullo, 170 Misc 2d 200, 650 N.Y.S.2d 926 (Dist. Ct. Nassau Co. 1996).
While the use of vulgar, derisive language may be constitutionally protected by the First Amendment, these "protections have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses." People v. Shack, 86 NY2d 529, 535, 634 N.Y.S.2d 660 (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 of privacy. . . , or places where it is impractical for an unwilling listener to avoid exposure to the objectionable communication." Id. 86 NY2d at 536. Where the communication occurs in the complainant's home where there is an expectation of privacy, as opposed to a public forum, the defendant's right to free speech may be considered subordinate to the complainant's right to privacy. See People v. Zullo, supra.
The allegations in the complaint and supporting deposition set forth a course of conduct by defendant over a period of time with the requisite intent to seriously annoy the complainant in an area where she had a reasonable expectation of privacy. While the limited statements made by defendant on October 4, 2006 concerning the letter sent by the complainant's lawyer to a judge, the condition of her car, and money issues, may be considered communication with a "legitimate purpose," which are insufficient on their own to constitute harassment, the remaining allegations are legally sufficient to support the charge.
The accusatory instruments allege more than a single abusive and cruel outburst by the defendant. The allegations here that defendant made animal noises within an inch or so of complainant's face; called complainant a "town hoe," "liquor," "B.Y.B.," and "Goldie;" that the complainant is a "dog and is supposed to fetch," which allegations were made over a period of time, in the privacy of their home in front of the children and their friends, are sufficient to support a conviction for harassment. Accepting these allegations as true, a jury could indeed infer that these statements were uttered without any "legitimate purpose."
The defendant also seeks dismissal because the allegations of a course of conduct are insufficient, non-specific, and conclusory. However, the Court finds that the evidentiary facts alleged, if true, are sufficient for pleading purposes. "So long as the factual allegations of an information give an accused notice sufficient 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. Khan, 15 Misc 3d 1131(A), 2007 WL [*4]1327176 (NY Crim. Ct. 2007).
Moreover, an accusatory instrument will not be dismissed as defective because of a broad time allegation if it "provides a reasonable approximation under the circumstances of the individual case of the date the crime occurred." See People v. Sanchez, 84 NY2d 440, 447-448, 618 N.Y.S.2d 887 (1994). Where a continuing offense is charged, such as harassment under Penal Law §240.26(3), a reasonable time period will be much longer than that which would be acceptable for a single act offense. This is so because a continuing offense is one, "which by its nature may be committed over a broad period of time." Id. See also People v. Shack, supra, 86 NY2d at 540-541, 634 N.Y.S.2d at 667-668.
The complainant alleges that defendant made abusive, degrading, and annoying statements to her over a period of time, often in front of their children, which behavior caused her to continually leave the house with the children to get away from the defendant. These allegations are contained in the complainant's supporting deposition to support the criminal contempt charge, in addition to the harassment charge. Therefore, as a matter of law, the allegations are limited in time to a period of seventy days - from the date the Family Court Order of Protection was entered on July 27, 2006, to the date the complaints were filed on October 4, 2006. Under the circumstances presented here, the broad allegations in the accusatory instrument of statements made over a period of time are sufficiently specific for the defendant to prepare his answer and defense to the charges, including any double jeopardy claim as a bar to subsequent prosecution for the same conduct.
In deciding a motion to dismiss, the Court is mindful that the standard for pleading a prima facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial. People v. Henderson, 92 NY2d 677, 680, 685 N.Y.S.2d 409 (1999). In addition, in assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. People v. Gibble, 2 Misc 3d 510, 773 N.Y.S.2d 499 (NY Crim. Ct. 2003). Using these standards, the Court finds the accusatory instruments to be facially sufficient to support a prima facie case of harassment in the second degree and criminal contempt in the second degree. Accordingly, defendant's motion to dismiss the complaints pursuant to C.P.L. §170.30(1)(a) is denied.
The foregoing constitutes the Decision and Order of the Court.
Dated: June 26, 2007
________________________________ [*5]
Hon. Francesca E. Connolly
Town Justice
To:
Mark A. Rubeo, Jr., Esq.
MARK I. REISMAN, P.C.
30 State Street, Suite 102
Ossining, New York 10562
Robert E. Mayes, Esq.
Assistant District Attorney
Office of the Westchester County District Attorney
25 Moore Avenue
Mount Kisco, New York 10549
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