New York Penal Law 240.30 (2) - Interpretation
In People v. Shack, 86 NY2d 529, 658 NE2d 706, 634 NYS2d 660 (1995), the defendant maintained regular telephone contact with his cousin, a psychologist (hereinafter referred to as the complainant), twice a week from June to October, on the condition that he continue taking his medications and seeing his regular psychiatrist.
In October, the defendant informed the complainant that he had stopped taking his medication. Since the defendant had discontinued his medication, the complainant told the defendant that he was no longer welcome to call her, to which the defendant threatened that "if he ever got angry with her, he could burn down the house of her elderly father (his uncle), who lived in New York City" (id. at 534).
The defendant continued to call the complainant, who repeatedly advised him that she did not want to speak to him unless he was compliant with his medication.
At the end of November, the complainant underwent a surgical procedure, and told the defendant not to call during her recuperation.
Undeterred, the defendant called her three times the day of her surgery, and 88 times between the surgery and year's end.
In the next eight months, the defendant called the complainant 185 times. The defendant left messages, threatening the complainant's family, including her daughter, and threatening to falsely report the complainant to the licensing board and have her license revoked (id.).
Upholding the defendant's conviction, the Court of Appeals held that Penal Law 240.30 (2) prohibits only conduct--the act of placing a telephone call with no legitimate purpose--rather than proscribing certain speech in the content of the call (Shack, 86 NY2d at 535).
The Shack court went further, holding that to the extent Penal Law 240.30 (2) is interpreted to proscribe speech, "it permissibly subordinates the defendant's First Amendment rights to the recipient's right to be free of unwanted telephone calls" (Shack at 536).
The Court rejected a First Amendment challenge to 240.30(2). The court held that the statute does not proscribe "pure speech," it proscribes conduct: "making a telephone call without any legitimate purpose of communication."
Since the statute "proscribes only conduct and expressly removes from its application legitimate communication,' defendant may not invoke the First Amendment or article I, 8 of the State Constitution to support a challenge to the facial validity of the statute." 86 NY2d at 535, 658 N.E.2d at 710, 634 N.Y.S.2d at 664.
The court also held that, even to the extent that it does proscribe speech, the statute does not run afoul of the First Amendment.
The Court of Appeals noted:
"When a crime may be committed by multiple acts over time and is amenable to characterization as a continuing crime . . . the count in the charging instrument may properly allege that the single offense was committed over a significant period of time . . . A continuing crime is one that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" (internal quotation marks and citations omitted).
In Shack, the Court rejected a claim in relation to Penal Law 240.30 (2), aggravated harassment in the second degree, that the accusatory instrument was defective for lack of specificity, holding that, while the statute "imposes criminal liability for making a single telephone call . . . the terms harass' and annoy' are easily susceptible of describing multiple acts occurring over a period of time" (Shack, 86 NY2d at 541).