People v Faraci
Annotate this CaseDecided on August 25, 2015
Justice Court of the Town of Lockport, Niagara County
The People of the State of New York, Plaintiff, vs.
against
Brian A. Faraci, Defendant.
15050200
APPEARANCE OF COUNSEL
Hon. Michael Violante
Niagara County District Attorney,
Meghan Dobson, of Counsel, for the People
Lipsitz Green Scime Cambria LLP
Justin D. Ginter, of Counsel
Attorney for Defendant
Leonard G. Tilney Jr., J.
Defendant moves for dismissal of the Prosecutor's Information asserting no true violation of Penal Law §240.30(1)(a) was committed by him as his single statement, while a brash outburst, must be afforded the constitutional protection of free speech.
The People oppose the motion stating the Defendant communicated a true threat to the Complainant and the said threat was not constitutionally protected speech.
[*2]Statute - Penal Law Section 240.30(1)(a):
"A person commits the offense of Aggravated Harassment in the Second Degree when, with intent to harass another person, the actor communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail,, or by transmitting or delivering to any other form of communication, a threat to physical harm to, or unlawful harm to the property of, such person, or a member of such person's same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family or household." (Emphasis added)
Prosecutor's Information
The Prosecutor alleges the "The defendant committed the offense of Aggravated Harassment in the Second Degree when, with the intent to harass Allison H. Hopkins, the defendant communicated a threat to physically harm Allison H. Hopkins, via telephone, and said threat was received at Cornerstone Federal Credit Union in the Town of Lockport, and the defendant knew, or should have reasonably known, that said communication would cause Allison Hopkins to reasonably fear harm to her physical safety.
To wit: that the said defendant, BRIAN A. FARACI, on or about May 21, 2015, communicated a threat to Allison H. Hopkins, an employee at Cornerstone Community Federal Credit Union via telephone and said threat was received at Cornerstone Community Federal Credit Union, 6485 South Transit Road, Town of Lockport, in the County of Niagara; the said threat consisted of the defendant using vulgar language and stating to Allison Hopkins via the telephone that You're a f ing bitch and I'm going to f ing kill you.' The said defendant knew, or reasonably should have known, that said threat would cause Allison Hopkins to reasonably fear harm to her physical safety."(expletives deleted)
FACTS
Defendant's father died and his automobile was security for a loan with the Cornerstone Community Federal Credit Union (Credit Union). The Credit Union evidently was attempting to repossess the automobile and the Defendant contacted it to express his displeasure. On May 21, 2015 the Defendant called the Credit Union contacting Allison N. Hopkins at 9:20 a.m., Cheryl Morrow on her personal cell phone at 9:27 a.m., Dianne K. Daniels at 9:30 a.m., Daniel Martin at 9:45 a.m. and Carolyn M. Nowak at 10:30 a.m. Defendant freely admits in his statement to the New York State Police that he did make the calls because he believed the employees were harassing him about his dad's car. All of the calls contained some vulgarity (See supporting [*3]depositions of people itemized above).
DECISION
Defendant cites People vs. Dietz, 75 NY2d 47 (1989) and People vs. Todaro, 26 NY2d 325 (1970) for constitutional protection of his speech and in any event if a threat occurred it was vague and absent of any further nexus with Ms. Hopkins. Both cases interpret abusive or vulgar language under Penal Law Section 240.25(2) and do not address the new language of Penal Law Section 240.30(1) as amended after Golb [See People vs. Golb, 23 NY3d 455 (2014)].
Certainly, the single use of "colorful" language does not violate the statute [See People vs. Zullo, 170 Misc 2d 200 (1996) citing People vs. Chasserot, 30 NY2d 898 (1972)].
It is a well settled Black Letter law, however, that freedom of expression, pursuant to the First Amendment protections of the United States Constitution, is not absolute. (See, Chaplinsky v. New Hampshire, 315 U.S. 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]." (Chaplinski, at 572 citations omitted). By the same accord, the Court of Appeals reiterated the same sentiment in People v. Shack, 86 NY2d 529 (1995), 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).
In People v. Dietze, supra, the Court of Appeals declared the Harassment section 240.25(2) of the Penal Law 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" Penal Law 240.25[1] and therefore, outside the purview of the First Amendment protections (Id at 54).
The present prosecution is not under the harassment section [PL 240.25(1)]. It is under Penal Law §240.30(1)(a). The Aggravated Harassment statute prohibits threats made in a private phone conversation. The unconstitutional harassment statute prohibited abusive language made in the public sector that annoyed people. The former deals with specific language to an individual in a private phone call that any reasonable person would find threatening as opposed to some people annoyed by abusive or vulgar language used in public.
The elements of the Aggravated Harassment are (1) intent to harass another, (2) causation of a communication, (3) a threat to cause physical harm, and (4) knowing or having reason to know that the recipient of the communication will reasonably fear harm of physical safety.
Only particular kinds of communication may be prohibited, such as "fighting [*4]words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct" (People v. Marquan M., 24 NY3d 1, 7 [2014]). True threats are those that "by their utterance alone, inflict injury or tend naturally to evoke immediate violence" (People v. Golb, 23 NY3d 455, 467 [2014], quoting Dietze, supra at 52). In order for a communication to qualify as a true threat, this Court posits that an ordinary reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury. Furthermore, a true threat is one that is clear, unambiguous, and immediate.
In the instant matter the information sufficiently alleges that defendant communicated a true threat of physical harm. Defendant's statement "You're a f ing bitch and I'm going to f ing kill you" (expletives deleted) possesses all the characteristics of a true threat. It is a statement that tends naturally to evoke immediate violence because it is a promise to cause severe physical harm. The threat of being killed is a statement that a reasonable listener would consider a true threat of physical injury or death. Certainly Defendant argues that without the context in which his statement was made, his communication cannot be deemed a threat to cause physical injury or death to the complainant. While the context of a statement is proper to consider in determining the genuineness of a threat [People vs. Olivio, 6 Misc 3d 1034 (2005)], it is unnecessary when the statement is clear on its face. A true threat is "serious, should reasonably have been taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst" (Dietze, supra at 53-54). Defendant's statement also does not fail for lack of immediacy. True threats are not required to convey an exact time and place where the threatened harm is to be inflicted [See People v. Delarosa, 47 Misc 3d 1213[A] (2015)].
In essence, Defendant warned that if the complainant acted in a certain manner, (i.e. repossess his father's car), defendant would kill her. Defendant's statement is neither conditional, nor unspecific. "I am going to f ing kill you" is a promise of future action. Further, a promise to kill someone is unambiguous in that an ordinary and reasonable listener would interpret that as impending death and not just a crude outburst.
Defendant's arguments are unpersuasive. His cited cases evaluated supposed threats that were more unclear, ambiguous or remote than the communication he is alleged to have made (See People v. Todaro, 26 N.Y.d 325, 327 [1970] ["I'll get you for this"]; and Dietze, supra at 50, ["beat the crap out of [complainant] some day or night"].
The information establishes that defendant knew or reasonably should have known that his communication would cause the complainant to reasonably fear for her physical safety. "A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists" (Penal Law §15.05). Defendant should have been aware that telling the complainant "I'm going to f ing kill you" would cause her to fear for her physical safety.
The information establishes defendant acted with the requisite intent to harass another person. Penal Law §240.30(1) was recently amended to undo the unconstitutionality of the previous version (Penal Law §240.30, as amended by L 2014, ch 188; See Golb, supra). The former subsection required a person to act "with intent to [*5]harass, annoy, threaten or alarm another." The current version removed "annoy, threaten or alarm", but retained the intent to harass only. The removal of the intent to annoy, threaten, or alarm must be given legal significance. For "the failure of the legislature to include a term in a statute is a significant indication that its exclusion was intended" (Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013]; See also Statutes Law §74). A court should give the plain meaning to statutory language unless there is an accepted, technical meaning (People v. Duggins, 3 NY3d 522, 527 [2004]).
The factual allegations create a reasonable inference that the defendant's purpose of calling complainant was part of a conscious desire to harass complainant. Therefore, the threatening phone call acts as an action directed at complainant. Further, there is a presumptive inference that a person intends the nature and probable
consequences of his actions (People v. Getch, 50 NY2d 456, [1980]). By uttering a true threat of death to complainant, defendant intended to harass the complainant.
This Court finds the information is facially sufficient as to the charge of Aggravated Harassment in the Second Degree. The factual allegations provide reasonable cause to believe that defendant committed the offense charged. His threat to kill the complainant is not constitutionally protected speech.
Accordingly, defendant's motion to dismiss the charge of Aggravated Harassment in the Second Degree is denied.
Dated:August 25, 2015_________________________________
Lockport, New YorkHon. Leonard G. Tilney, Jr.
Lockport Town Justice
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