People v. Shack, 86 N.Y.2d 529 (1995)

A statute prohibiting telephone calls made with the intent to harass and without any legitimate purpose of communication does not violate the constitutional right to free speech, is not unconstitutionally vague, and can be characterized as a continuing crime when assessing the specificity of charging instruments.

Summary

The New York Court of Appeals upheld the conviction of Julian Shack for aggravated harassment, finding Penal Law § 240.30(2) constitutional. The statute prohibits making telephone calls with the intent to harass and without a legitimate purpose. The Court found that the statute permissibly subordinates the caller’s free speech rights to the recipient’s right to be free from unwanted calls, is not substantially overbroad, and provides sufficient notice of the proscribed conduct. The Court also held that the charge against Shack, alleging a series of harassing calls over a six-month period, was sufficiently specific.

Facts

Julian Shack, who suffered from mental illness, began calling his cousin, Diane Buffalin, a psychologist, for advice regarding his condition and medication. Initially, Buffalin agreed to the calls as long as Shack remained in treatment and took his medication. However, Shack later stopped taking his medication, and Buffalin told him to stop calling. Shack responded by threatening her father. Despite Buffalin’s repeated requests, Shack continued to call her, sometimes multiple times a day. He left threatening messages, stating he would sell her number to a “pervert” and harass her family if she didn’t answer. Between December 12, 1990, and May 20, 1991, Shack made 185 calls to Buffalin’s residence.

Procedural History

Buffalin filed a criminal complaint against Shack. Shack was arrested, prosecuted, and convicted of aggravated harassment in the second degree in Queens County. He was sentenced to three years of probation. The Appellate Term affirmed his conviction, and Shack appealed to the New York Court of Appeals.

Issue(s)

1. Whether Penal Law § 240.30(2) violates the First Amendment and Article I, § 8 of the New York Constitution by infringing on freedom of expression.
2. Whether Penal Law § 240.30(2) is unconstitutionally vague because the term “legitimate communication” is not precisely defined.
3. Whether the accusatory instrument was defective for lack of specificity because it did not identify the particular dates of the harassing calls.

Holding

1. No, because the statute proscribes conduct (making telephone calls without a legitimate purpose) and expressly excludes constitutionally protected speech. Even if construed to proscribe speech, the statute permissibly subordinates the caller’s right to free speech to the recipient’s right to be free of unwanted telephone calls.
2. No, because the statute provides sufficient notice of the proscribed conduct when measured by common understanding and practices. The specific intent element (“intent to harass, annoy, threaten, or alarm”) removes the possibility that a defendant could be unaware of his criminal conduct.
3. No, because Penal Law § 240.30(2) can be characterized as a continuing crime, and the information adequately advised defendant of the conduct for which he was charged.

Court’s Reasoning

The Court reasoned that Penal Law § 240.30(2) does not facially prohibit speech; it prohibits conduct – making phone calls without legitimate communication. The statute is narrowly tailored to protect individuals from those who use the telephone for unjustifiable motives rather than communication. The court held that an individual has a substantial privacy interest in their telephone, analogous to a mailbox, and the statute permissibly subordinates a caller’s free speech rights to the recipient’s right to be free from unwanted calls. The court distinguished this statute from those imposing liability for “pure speech”.

Regarding vagueness, the Court stated that the phrase “no purpose of legitimate communication” would be understood to mean the absence of expression of ideas or thoughts other than threats and intimidating utterances. The specific intent requirement further clarifies the proscribed conduct. The court emphasized that the very nature of the conduct requires a victim’s complaint, which provides an opportunity for investigation and consideration of the complainant’s veracity.

Finally, the Court addressed the specificity of the charge, finding that Penal Law § 240.30(2) can be characterized as a “continuing crime” because the terms “harass” and “annoy” are easily susceptible of describing multiple acts over a period of time. The information adequately advised the defendant of the conduct he was charged with, allowing him to defend the charges, ensuring his trial was conducted accordingly, and protecting him from subsequent prosecution for the same conduct.

The Court quoted Rowan v Post Off. Dept., 397 U.S. 728, 736-737 stating that “a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee”. This principle was extended to telephone communications, solidifying the recipient’s right to privacy.