New York Law Review

Tag: Course of Conduct

  • People v. Aponte, 14 N.Y.3d 107 (2010): Is Attempted Stalking a Cognizable Crime?

    People v. Aponte, 14 N.Y.3d 107 (2010)

    A person can be charged with attempted stalking in the third degree under New York Penal Law because the statute proscribes specific conduct, and one can attempt to engage in that conduct, even if the intended result does not occur.

    Summary

    The New York Court of Appeals addressed whether attempted stalking in the third degree is a legally cognizable offense. The defendant was charged with stalking, harassment in the first degree, and harassment in the second degree based on allegations of following the complainant and making a death threat. The Criminal Court reduced the stalking charge to attempted stalking. The Court of Appeals held that attempted stalking is a valid offense because the stalking statute penalizes specific conduct, and a person can attempt to engage in that conduct. The court affirmed the Appellate Term’s order.

    Facts

    The misdemeanor complaint alleged that the defendant followed the complainant in his vehicle for three blocks as she walked to church. After she returned home and left with a friend, the defendant followed them for approximately five blocks, exited his vehicle, and confronted the complainant while she was in her friend’s car. He then told her, “I am going to kill you.” The complaint further stated the defendant had followed the complainant approximately 25 times over the previous three years at various locations.

    Procedural History

    The Criminal Court granted the prosecution’s motion to reduce the stalking charge to attempted stalking in the third degree. The defendant was convicted of attempted stalking in the third degree, harassment in the first degree, and harassment in the second degree after a bench trial. The Appellate Term affirmed the judgment. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether attempted stalking in the third degree is a legally cognizable offense under New York law.

    Holding

    Yes, because the stalking statute proscribes specific conduct, and a person can attempt to engage in that conduct, regardless of whether the intended result (fear, alarm, etc.) actually occurs.

    Court’s Reasoning

    The Court of Appeals reasoned that under Penal Law § 110.00, a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. The Court relied on its precedent in People v. Prescott, holding that “where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct.” The court also cited People v. Saunders, where it held that a defendant could be charged with attempted criminal possession of a weapon because the underlying crime proscribed particular conduct. The Court found that the stalking statute, Penal Law § 120.50(3), penalizes behavior that is likely to cause harm, and does not require proof of actual harm. The Court stated: “While the conduct penalized is defined as engaging in ‘a course of conduct . . . likely to cause’ certain consequences, there is nothing impossible about attempting to engage in such a course of conduct.” As an example, the court explained, “if a telephone call or e-mail were ‘likely to cause’ the consequences referred to, an attempt to make such a phone call or send such an e-mail—even if the communication never reached its intended recipient—would be an attempt.” The court concluded that because the statute strictly penalizes conduct, an attempt to engage in that conduct is not a legal impossibility. The court also agreed with the appellate court that the factual allegations in the complaint established every element of stalking in the third degree and harassment in the first degree.

  • People v. Dietze, 68 N.Y.2d 128 (1986): Defining “Course of Conduct” for Harassment Statutes

    People v. Dietze, 68 N.Y.2d 128 (1986)

    A single instance of speech, even if offensive, does not constitute a “course of conduct” or “repeatedly commits acts” sufficient to establish harassment under Penal Law § 240.25(5).

    Summary

    Dietze was convicted of harassment for a single public statement made while picketing. He pointed to a union official and declared, “There is the corruption I am talking about… and there is one of the corrupt ones.” The New York Court of Appeals reversed the conviction, holding that this single instance of speech did not meet the statutory requirement of a “course of conduct” or “repeatedly commits acts” needed to prove harassment under Penal Law § 240.25(5). The court emphasized that the statute requires more than an isolated incident.

    Facts

    Dietze was picketing across the street from a union headquarters.

    As a union official exited the building, Dietze pointed at him and loudly stated, “There is the corruption I am talking about… and there is one of the corrupt ones.”

    This statement formed the basis of the harassment charge.

    Procedural History

    Dietze was convicted of harassment under Penal Law § 240.25(5) in the Ontario County Court.

    The case was appealed to the New York Court of Appeals.

    The Court of Appeals reversed the Ontario County Court’s order, vacated the conviction, and dismissed the accusatory instrument.

    Issue(s)

    Whether a single public statement, even if critical or accusatory, constitutes a “course of conduct” or “repeatedly commits acts” sufficient to establish harassment under Penal Law § 240.25(5).

    Holding

    No, because Penal Law § 240.25(5) requires proof of either a “course of conduct” or the repeated commission of acts, and a single statement does not satisfy either requirement.

    Court’s Reasoning

    The court focused on the statutory language of Penal Law § 240.25(5), which requires either a “course of conduct” or that the accused “repeatedly commits acts.” The court reasoned that Dietze’s single statement, while perhaps annoying or alarming to the union official, did not meet the threshold of either a course of conduct or repeated acts.

    The court cited People v. Otto, 40 NY2d 864, emphasizing that the violation of harassment was not established beyond a reasonable doubt based on the facts presented. The court determined that the prosecution failed to prove the elements of the statute beyond a reasonable doubt.

    The ruling implies that the statute is intended to address persistent behavior, not isolated incidents. To secure a conviction under this statute, prosecutors must demonstrate a pattern of behavior, indicating more than one instance of harassing conduct.

  • Gallagher v. Goldberg, 28 N.Y.2d 886 (1971): Landlord’s Duty of Care Based on Course of Conduct

    Gallagher v. Goldberg, 28 N.Y.2d 886 (1971)

    A landlord may assume a duty of care to tenants by voluntarily undertaking actions, such as reporting malfunctions of appliances, that create reliance among tenants, even if no such duty exists under the lease or statute.

    Summary

    This case addresses the extent of a landlord’s liability for injuries sustained due to malfunctioning appliances on the premises. The Court of Appeals held that while a landlord generally does not have a statutory duty to repair appliances owned by a tenant and used in their business within the leased premises, a duty may arise if the landlord, through a consistent course of conduct, intervenes in the operation of the business to such an extent that tenants rely on the landlord’s actions. In this situation, the landlord can be held liable for negligence if they fail to report malfunctions, contributing to an accident. The Court ordered a new trial to determine liability based on this theory of landlord intervention.

    Facts

    The landlord, Goldberg, leased a room in the building to H.B.H. Metered Machine Co. for an automatic washing machine business. The lease granted H.B.H. exclusive use of the room, except for access to utility meters, and specified that H.B.H. retained ownership of the machines and could remove them upon lease expiration. Residential tenants, including the plaintiffs, used the washing machines. The plaintiffs sustained injuries due to a malfunctioning washing machine.

    Procedural History

    The plaintiffs sued the landlord. The trial court initially based the landlord’s liability solely on the statutory provisions of the Multiple Dwelling Law, which the Court of Appeals found unjustified. The trial court also dismissed the landlord’s third-party complaints against the lessee and the repair service. The Appellate Division affirmed the trial court’s judgment. The Court of Appeals reversed the judgment against the landlord and ordered a new trial, while dismissing the appeals of H.B.H. and Washing Machine Clinic for lack of jurisdiction.

    Issue(s)

    1. Whether Section 78 of the Multiple Dwelling Law imposes a statutory duty on the landlord to repair appliances owned by the tenant within the leased premises?
    2. Whether the landlord’s actions created a duty of care where none existed before?

    Holding

    1. No, because the lease granted the lessee exclusive use of the room, and the landlord retained no control over the tenants’ washing machines. The reservation of access to utility meters did not constitute control over the washing machines.
    2. Yes, because a jury could find that the landlord, through a long course of conduct by his employees in reporting malfunctions of the machines, intervened in the business’ operation, giving rise to reliance by the building’s tenants on the landlord reporting malfunctions.

    Court’s Reasoning

    The Court reasoned that the landlord generally isn’t liable for the condition of property leased to a tenant when the landlord relinquishes control. The Court cited a line of cases establishing that “control is the test which measures generally the responsibility in tort of the owner of real property”. However, the Court carved out an exception based on the landlord’s conduct. Even though the lease agreement and statutory law didn’t impose a duty to repair, the landlord’s actions in repeatedly reporting malfunctions could have created an implied duty to continue doing so, especially if tenants relied on these reports. The court stated, “Hence a liability might result if reports were not made and this played an effective part in the occurrence of the accident.” The Court found that the trial court’s charge to the jury focused solely on statutory liability, neglecting the potential liability arising from the landlord’s intervention. Because of this error, the Court ordered a new trial, where the jury could consider whether the landlord’s actions created a duty of care and whether a breach of that duty contributed to the plaintiffs’ injuries. The court affirmed the dismissal of the third-party complaints, reasoning that the landlord’s negligence, if proven, would constitute active negligence, precluding indemnity from the lessee or repair service.