Does Communication of Threats by Telephone and Mail by a Defendant Constitute Aggravated Harassment ?

In People v. Price (178 Misc 2d 778 [1998]) defendant was charged, inter alia, with Penal Law 240.30 (1), aggravated harassment in the second degree. (178 Misc 2d, at 779.) The defendant sent a letter via Federal Express to the complainant, his attorney, which stated: " 'I'm going through all this shit with you, you better be careful, I won't be responsible if you speak to me like that again.' " (Supra, at 779.) That same day, the defendant left the complainant a message stating " 'you will be fucking sorry, you're playing with fire, you better get me my apartment free and clear with no rent for five years, that's the only way it will be balanced, I' be at [the complainant's address], no doors will keep me out, you better perform magic on Thursday.' " ( People v. Price, 178 Misc 2d, at 779.) Two days later, defendant, while at court, stated to complainant, " 'I'll get you,' " while " 'shaking his hand' " at her. (Supra, at 779.) This incident occurred on the date and in the location referred to in the Federal Express letter. (Supra. ) The court found the complaint facially sufficient because the defendant's use of the telephone and mail to communicate his threats constituted an invasion of the complainant's privacy interest and, in conjunction with the content of the two communications, evinced an intention to harass, annoy, threaten or alarm the complainant. (Supra, at 783.) the court in Price (supra) relied heavily on People v. Miguez (147 Misc 2d 482 [1990], supra). In People v. Miguez, the court held that the complaint, alleging that defendant "repeatedly made phone calls to the complainant, left messages on his answering machine and paged him, interfering with his medical practice" was facially sufficient under Penal Law 240.30 (2), despite the fact that the People charged subdivision (1) instead. (Supra, at 485 [emphasis added].) Yet the distinction between subdivisions (1) and (2) is critical. Subdivision (1) of Penal Law 240.30 " 'requires that a communication occur' " and subdivision (2) is " 'primarily aimed at two types of harassing telephone conduct: (1) driving a person to distraction by repeatedly dialing his number, (2) tieing up business lines by repeated calls.' " ( People v. Liberato, 180 Misc 2d 199, 201 [1999], quoting Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law 240.30, at 253.) Although messages left on an answering machine are sufficient to satisfy the statutory requirement that a "communication" occur for a violation of subdivision (1), there is no evidence of any messages left on the machine. ( People v. Shropshire, 181 Misc 2d 77 [1999], citing People v. Miguez, 147 Misc 2d 482 [1990].) In People v. Portnoy (158 Misc 2d 60, 63 [1993]), the court dismissed the information as facially insufficient because, as in this case, "there are no factual allegations that the defendant said anything to the victim during the four telephone calls. To find a violation of subdivision (1) there must be some form of communication. In the absence of any communication, the defendant's actions do not constitute aggravated harassment under subdivision (1) of the statute."