People v Paes

[*1] People v Paes 2007 NY Slip Op 52091(U) [17 Misc 3d 1120(A)] Decided on October 26, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2007
Criminal Court of the City of New York, New York County

People of the State of New York

against

Raymond Paes, Defendant.



2007NY026399



Appearance of Counsel:

For Defendant:

Stuart Altman, Esq.

264 East Broadway, Suite 1003C

New York, NY 10002

For the People:

District Attorney, County of New York

by A.D.A. Samuel David

One Hogan Place

New York, NY 10013

Marc J. Whiten, J.

The defendant, Raymond Paes, is charged with a violation of Penal Law §240.30(1)(a)(Aggravated Harassment in the Second Degree), Penal Law §240.25(Harassment in the First Degree), Penal Law §§120.45(1) and 120.45(2)(Stalking in the Fourth Degree), and Penal Law §120.50(3)(Stalking in the Third Degree).

Defendant is charged with three counts of the first offense and a single count of the remainder of the offenses.

The defendant has moved by omnibus motion for the following: (1) Dismissal for Facial Insufficiency of the charges; (2) Mapp/Dunawayhearing and Preclusion of any statement or identification of defendant; (3) Sandoval Hearing; (4) Bill of Particulars; (5)Discovery; and (6) Brady material.

The Court has reviewed the Defendant's motion papers, the People's response and all relevant statutes and case law, and, for the reasons discussed hereafter, decides the Defendant's motion as follows:

DISMISSAL FOR FACIAL INSUFFICIENCY

The accusatory instrument, in pertinent part, charges defendant with the commission of the aforementioned crimes on [*2]January 11, 2007, at about 8:00 hours at 306 West 54th Street in the County of New York, State of New York under the following circumstances:

Deponent states that deponent is informed by [the complainant] that he received two letters from the defendant on January 11, 2007, and February 1, 2007, at his place of employment at the above location. Deponent is further informed that on February 4, 2007 informant went to defendant's home and advised the defendant not to contact informant anymore [and] on February 5, 2007 informant received a third letter from defendant.

Deponent is further informed that all said letters contained written statements from defendant to wit: (i) Blame Madonna's Devil 4:48 Second Evening of February...and not 6:20 Hitler's 7:13 Buddies 7:01 for Satan's heel prints on Joe (written above a photocopy of Isiah Thomas that is titled HIS FAULT), (ii)10th evening of 2007 7:47 because in talk 8:18 Satan keeps bring up detective Joseph Monahan of of the midtown precinct (who had taken a sincere liking of sweet old Jesus) lucky me winner Madonna is going to mail stupid buddy this page plus seventeen pages beginning with "Joe's next" and page 0128th morning...the immaculate defendant (9:23 afternoon negative is a sponge bather 4:47 10th evening as of yesterday the mini-sized bathroom in the third floor hall, and (iii)17th evening of November 2000, last December when I your god damn it confident Jesus preacher Raymond Paes squealer America read Beechers's note your devil told me an angry righteous injured man.

Deponent is further informed that defendant included [in the mail] a nude photo of the defendant with the words "JOE'S NEXT" written above said nude photo of the defendant, a photo of defendant's infected foot, store receipt, lists of apartment repairs and copies of the defendant's civil lawsuit letters.

An information is facially sufficient if it contains nonhearsay factual allegations of an evidentiary character which establish, if true, 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). 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". See People v. Casey, 95 NY2d 354, 390 (2000); See also People v. Konieczny, 2 NY3d 569 [*3](2004).

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

The defendant is charged with the violation of the statute because he sent three pieces of mail to complainant. In addition to having "annoying" written contents, the mail further contained a nude picture of the defendant.

There is no question that defendant sent complainant several unwanted communications via mail. A prosecution under Penal Law §240.30(1)(a) rests upon the idea that such a violation creates an intolerable invasion of privacy. See, People v. shack, 86 NY2d 529 (1995). In effect, the purpose of the "aggravated harassment" statute was to "protect privacy interests." See, People v. Amalfi, 141 Misc 2d 940(1988); see, also People v. McDermott, 160 Misc 2d 769 (1994).

The described conduct rises to the level of "annoyance" at the very least. The supporting deposition sets forth that defendant, after being notified about ceasing the communication via mail, continued to send correspondence with the same contents as his previous mail. These are facts which, if true, demonstrate that defendant sent the mail with no legitimate purpose of communication. See, People v. Shack, 86 NY2d 529 (1995); see, also People v. Miguez, 153 Misc 2d 442 [App Term, 1st Dept 1992].

A major issue here revolves around the intent element of the charge. Defendant here raises the lack of intent of the defendant to harass complainant. The accusatory portion of the complaint charges that the communication was made with the intent to harass, annoy, threaten and alarm another with no purpose or legitimate communication.

Here, the defendant's three US mail based communications constitute invasions of complainant's privacy, because the content of the three alleged communications evince an intention to harass, annoy, threaten or alarm the complainant.

On one occasion, the complaint alleges, complainant went to confront defendant, specifically demanding that the defendant's conduct against the complainant cease. Nonetheless, defendant sent another missive with the same contents, disregarding complainant's express wishes.

The intent necessary to sustain a charge under subdivision (1) [*4]can be inferred from factual circumstances alleged in the accusatory instrument. See, People v. Miguez, supra ; People v. McGee, 204 AD2d 53 [2d Dept 1994]; People v. Bracey, 41 NY2d 296 (1977). The complaint alleges that defendant sent unwanted communications and continued to do so even after he was ordered by the complainant to cease. Defendant specifically targeted complainant by naming him in writing and addressing the mail to his place of employment.

With the element of "intent" clearly established in the complaint, the three counts of aggravated harassment in the second degree are facially sufficient.

Protected Speech

The Court is compelled to consider the constitutional issues related to the instant communications.

It is well established that communication which may properly be prohibited by the First Amendment includes, among other things, communication which are obscene. See, People v. Smith, 89 Misc 2d 789 (1977); see, also People v. Mishkin, 26 Misc 2d 152 (1960); see, also People v. Steinberg, 60 Misc 2d 1041 (1969).

Penal Law §235.00 clearly defines that "any material or performance is "obscene" if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is the prurient interest in sex, and (b) it depicts or describes (...) Lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious...artistic value."

Here, defendant included a nude photograph of himself with the words "Joe's next" superimposed thereon. Within the text of defendant's letter, he identifies complainant as Detective Joseph Monahan. Therefore, defendant clearly directed his communications to complainant by mailing them to his attention and by naming Detective Joseph Monahan [complainant]. Such intentional conduct allows no alternative conclusion, but that the complainant was the target of clearly disturbing and alarming content.

Such conduct is not protected by the free speech clause of the Constitution and is punishable. See, People v. Mangano, 100 NY2d 569(2003).

PL 240.30(1) requires only that the person charged acted with intent to harass, annoy, threaten or alarm when he made communications in a manner likely to cause annoyance or alarm. In the case at bar, defendant's intention to harass is correctly pleaded. See, People v. Sassower, NYLJ, November 6, 1998, at 23, col 3.

Accordingly, the Court denies the motion to dismiss the above counts on the grounds of facial insufficiency.

Harassment in the First Degree(PL §240.25)[*5]

As for the violation of Penal Law §240.25(Harassment in the First Degree), no challenge was made to that charge. The Court, therefore, declines to review it.

Stalking in the Fourth Degree [PL §§ 120.45(1), 120.45(2)] and

Stalking in the Third Degree [PL §120.50(3)As to the counts pertaining to the violation of the above statutes, defendant here challenges the facial sufficiency of the accusatory instrument. Defendant alleges that there was no showing of intent to cause alarm on the part of the defendant and, under the Stalking Statute, defendant's conduct did not cause fear of material harm to the complainant.

A person is guilty of stalking in the third degree when he or she:(...)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 [PL §120.50(3)].

A person is guilty of stalking in fourth degree when he or she intentionally and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:

1. Is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted; or

2. Causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact..., and the actor was previously clearly informed to cease that conduct.

In the instant case defendant is not alleged to have made an explicit threat. Stalking in the fourth degree does not require an allegation of a threat of immediate and real danger. See, People v. Wong, 3 Misc 3d 274 (2004). All that is required is that the offender must have intended to engage in a course of conduct targeted at a specific individual. See, People v. Stuart, 100 NY2d 412 (2003). Here, the Court has already concluded that defendant, by his conduct of repeated and unwanted communication in the nature as outlined in the complaint, has met the requisite standard to establish general intent.

The remaining question relative to the Stalking in the Fourth Degree charge is whether defendant, by his actions, intended to [*6]place complainant in reasonable fear of physical injury or caused complainant emotional distress. Since "reasonable fear" was made an element of the crimes charged, it becomes a prerequisite to find "fear" in order to sustain the above charges. Under PL §120.45(1) and (2), liability arises from a series of acts that instill fear of harm in the complainant, irrespective of the content of the communication. Also under PL § 120.50(3) defendant's conduct must be likely to reasonably cause complainant to fear physical injury, or the commission of a sex offense against [him].

U.S. Supreme Court Justice Potter Stewart wrote in his decision [FN1] regarding pornography or obscenity that "[he] shall not today attempt further to define the kinds of material [he] understand[s] to be embraced . . . [b]ut [he] knows it when [he] see[s] it . . . " In the instant matter, the transmittal of defendant's nude image together with the superimposed message "Joe's next" [knowing complainant is named Joseph] would, to any reasonable person, suffice to convey a "threat" to physical health and safety. While the communication may not represent an overt and clearly stated threat, it is clear to this court that the inference is sufficient to convey the threat.

Following the objective standard of evaluation of "reasonable fear or belief" as outlined by the Court of Appeals in Goetz [FN2], the court ascertains that a reasonable person under the facts and circumstances here could be put in fear of physical injury or material harm to his or her mental and, or emotional health. The information as it stands supports the complaint of stalking in the Fourth and Third degrees.

Accordingly, the defendant's motion to dismiss the information based on the charge of stalking in the fourth and third degrees, respectively pursuant to PL §§120.45(1), 120.45(2) and PL §120.50(3) is denied.

PRECLUSION

The defendant asks the court to preclude any statement or identification testimony for which proper notice has not been given.

The People are required to give advance notice to the defendant of their intention to introduce at trial any potentially suppressible statements made by the defendant to a public servant (CPL §710.30[1]). Such notice must be served within fifteen days [*7]after arraignment and before trial (CPL § 710.30[2]). A failure to give the required notice before trial mandates exclusion of the statement. See People v Briggs, 38 NY2d 319(1975).

In the present case, the people served notice of their intention to use defendant's statement on May 3, 2007, the date of the arraignment. This notice clearly satisfies the requirement of Criminal Procedure Law § 710.30.

Therefore, defendant's motion to preclude statement and identification testimony is denied. Further motions may be renewed in the event the People attempt to offer unnoticed statement or identification testimony.

MAPP/DUNAWAY HEARING/SUPPRESSION

Defendant's motion requesting a Mapp/Dunaway hearing is denied.

SANDOVAL/MOLINEUX

Defendant's motion to preclude the use of defendant's criminal history or uncharged bad acts is referred to the trial court.

BILL OF PARTICULARS AND DISCOVERY

Defendant's motion for a Bill of Particulars (5) and additional discovery (6) is granted as indicated in the people's response and the Voluntary Disclosure Form.

The people's reciprocal discovery is also granted.

The People are reminded of their continuing obligation to supply Brady material.

This opinion constitutes the decision and order of the Court.

Dated:October 26, 2007___________________

New York, NYMARC J. WHITEN, JCC Footnotes

Footnote 1:See, Jacobellis v. Ohio, 378 U.S. 184 (1964)

Footnote 2:See, People v. Goetz, 68 NY2d 96 (1986)