This is another of an increasing number of prosecutions based upon the alleged making of unwelcome telephone calls. The issue presented by defendant's motion to dismiss is whether a complaint alleging a single telephone call, containing allegedly threatening language, is facially sufficient to sustain the charges of aggravated harassment (Penal Law 240.30[1] and Penal Law 240.30[2]), filed against the defendant, Patria Olivio.

The complaint alleges that on August 8, 2004, the defendant telephoned the complainant and said, in substance, "who are the women?" and "if I see you with another woman I'll fuck you up." The accusatory portion of the complaint charges that the call was made with the intent to harass, annoy, threaten and alarm another and was made with no purpose of legitimate communication.

Defendant moves to dismiss the complaint, pursuant to Criminal Procedure Law §§ 170.30, 100.15, 100.40, and 140.45 as facially insufficient. The motion also argues that the complaint violates defendant's freedom of speech rights under the United States and New York Constitutions.

Generally, communications may be proscribed, without offending free speech protection, if they constitute an intolerable invasion of another's privacy, People v. Shack, 86 NY2d 529 (1995); People v. Miguez, 147 Misc 2d 482, aff'd 153 Misc 2d 442 (App. Term 1st Dept. 1992) or convey a genuine threat. People v. Dietze, 75 NY2d 47 (1989); People v. Bonitto, 4 Misc 3d 386 (NY Co. Crim. Ct. 2004); Vives v. City of New York, 305 F. Supp.2d 289 (SDNY 2003), reversed other grounds, 393 F.3d 129 (2nd Cir. 2004)

Making multiple unwanted calls to another person does not implicate First Amendment protection because it is offensive conduct (i.e. the making of the calls) that is criminalized and not the content of the calls. People v. Mangano, 100 NY2d 569 (2003); People v. Shack, supra. [*2]

The hallmark of an intolerable invasion of privacy is usually the fact that multiple calls are directed to the complainant. See, Shack ^[FN1], supra; Miguez, supra. Indeed, a conviction based upon one isolated call which contained neither threat nor invective, was overturned. People v. Silverberg, 1 Misc 3d 62 (App. Term 1st Dept. 2003). See, also, People v. Araman, 4 Misc 3d 128(A) (App. Term 1st Dept. 2004) (repeated course of conduct); People v. Brandy Gonzalez, NYLJ March 10, 2004, p. 20, col. 3 (NY Co. Crim. Ct. 2004) (single call not a substantial invasion of privacy).

When, as here, a prosecution is based upon the content of a call, rather than the volume of calls, that content must fall within a proscribable class of speech. People v. Mangano, supra. Speech which may be constitutionally prohibited must constitute "fighting words" (Cohen v. California, 403 US 15 (1971) or "true threats",^[FN2] People v. Dietze, 75NY2d 47 (1989); Watts v. United States, 394 US 705 (1969); Vives v. United States, supra; People v. Bonitto, supra.

The long established definition of "fighting words - words that are likely to provoke a violent reaction when heard by an ordinary citizen - (Cohen v. California, supra), does not apply to the telephone statement attributed to defendant. Thus, the complaint can only be sustained if the statements are found to be "true threats" or "genuine threats," the term used by the New York Court of Appeals.

A genuine threat is one that is serious, should reasonably have been taken to be serious, or was confirmed by other words or conduct. People v. Dietze, supra. "'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.'" (Virginia v. Black, 538 US 343, 359[2003], citing Watts, 394 US at 708; Vives v. City of New York, supra.)

It must be shown that, under the circumstances, "an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury," whether or not the defendant subjectively intended the communication to convey a true threat. (United States v. Francis, 164 F3d 120, 123 [2nd Cir 1999].) Whether the threat meets this standard usually is a question of fact for the jury (id.). See, also, People v. Cooper, 4 Misc 3d 788 (Dist. Ct. Nassau Co. 2004); cf. People v. Bonitto, supra. [*3]

Defendant argues that the complaint does not set forth true threats, because the statement attributed to her would not reasonably place the recipient in fear of immediate danger of severe harm, citing People v. Dietze, supra. Furthermore, defendant contends the alleged utterances are non-specific as to time, place or manner of harm and , thus, are not genuine threats, citing People v. Yablov, 183 Misc 2d 880 (Crim. Ct. NY County 2000).

The threat recited in the complaint, manifestly, contains no time or place for its execution and even its manner of deliverance is uncertain.^[FN3] Further, the threat appears contingent upon the happening of a future event, i.e. the discovery by the defendant of the complainant in the company of another woman. However, the contingency is one whose fulfillment would seem inevitable or, at least, could conceivably inhibit the complainant from engaging in otherwise lawful conduct.

Whether the defendant's alleged statement reasonably was perceived by the complainant as a true threat of harm or was merely an outburst of frustration and anger not likely to instill fear, is borderline, at best. However, the court cannot find that the language is incapable of constituting a true threat as a matter of law. (cf. People v. Bonitto, supra.). The standard for upholding an accusatory instrument is a lesser one than at trial, where the People must prove their case beyond a reasonable doubt. People v. Bonitto, supra; People v. Cooper, supra; People v. Tiffany, 186 Misc 2d 917 (Crim. Ct. NY County 2001); People v. Price, 178 Misc 2d 778 (Crim. Ct. NY County 1998); People v. Prisinzano, 170 Misc 2d 525 (Crim. Ct. NY County 1996). It is conceivable that additional evidence may be offered at trial from which a jury could rationally find that complainant might reasonably fear for his safety.

Thus, the question of whether defendant's alleged utterance constituted a true threat must be resolved by a jury after trial. Accordingly, defendant's motion to dismiss the first charge of the complaint, PL 240.30(1), is denied.

Defendant's motion also seeks the dismissal of the second charge in the complaint, which is predicated upon an alleged violation of PL 240.30(2). Under that statute, the complaint must contain factual allegations which, if true, demonstrate that the defendant, with the intent to harass, annoy, threaten or alarm another person, made a telephone call with no purpose of legitimate communication.

As already discussed, in relation to the challenge to the first charge, PL 240.30(1), the factual allegations are sufficient, at least for pleading purposes, to make out the communication of a threat. From that circumstance an inference may be drawn that defendant intended to threaten or alarm the complainant. See, People v. Bracey, 41 NY2d 296 (1977); People v. McGee, 204 AD2d 353 (2nd Dept. 1994); People v. Collins, 178 AD2d 789 (3rd Dept 1991); People v. Tiffany, 186 Misc 2d 917 (Crim. Ct. NY Co. 2001). [*4]

A phone call that consists of nothing but a threat is not made for a legitimate purpose. People v. Shack, supra, defined the phrase "no purpose of legitimate communication" as "the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances" Shack, supra at 538. The complaint sets forth the threat allegedly made by the defendant to the complainant during the telephone call but does not contain any other factual allegations from which it may be inferred that the call made by defendant had no purpose of legitimate communication. For example, the complaint might have alleged, but does not, that the statements attributed to the defendant constituted the entire conversation. The Appellate Term, Second Department has held that: "the mere recitation, in the accusatory instrument of defendant's threat to the complainant does not establish [the] element" that the telephone call had no purpose of legitimate communication. The court dismissed the accusatory instrument relating to the charge under PL 240.30(2), holding that the failure to allege that element is a nonwaivable jurisdictional defect. People v. Singh, 1 Misc 2d 73 (App. Term 2d Dept 2003)

Accordingly, defendant's motion to dismiss the second charge in the complaint (PL 240.30[2]) is granted.

Discovery is granted to the extent of the voluntary disclosure and bill of particulars furnished by the People. Use of prior criminal conduct for cross-examination purposes is referred to the trial court.

This opinion constitutes the decision and order of the court.



Dated: New York, New York

March, 2005

__________________________

Gerald Harris

J.C.C.