Do Good Offenses Make Good Neighbors?

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“The Penal Law is a bludgeon used to force a bare minimum level of civility on miscreants. It is not a book of etiquette”

The Penal Law is not a book of etiquette. Take a look at People v. Hogan via the link above if you have any doubts. Offend the wrong neighbor, though, and – continuing the Hogan court’s metaphor – you may find yourself bludgeoned into a state of civility. The bludgeon is always kept oiled and polished, and can be found in Section 240.26 of New York’s Penal Law, which defines harassment in the second degree.

There are three ways to commit this offense: You can “strike, shove, kick or otherwise subject [an]other person to physical contact, or attempt or threaten to do the same;” essentially, this would be an assault that didn’t leave a significant mark. You can follow a person around in a public place with the intent to ‘harass, annoy or alarm’. Or you can “engage in a course of conduct or repeatedly commit acts which alarm or seriously annoy [an]other person and which serve no legitimate purpose.”

When it comes to number three, the devil, of course, is in the lack of detail. ‘Repeatedly’ doesn’t pose much of a problem, but what is a ‘course of conduct’? Only one court has really claimed to have the answer. That answer is found in People v. Tralli. In that case, it appears the defendant carefully maneuvered his victim into a position from which she would see that he was exposing himself. This was a ‘course of conduct’ intended to harass the victim, according to the court.

However, although Tralli is often cited, it’s usually cited as a back-up rationale in cases where there has been some sort of sustained or repetitious behavior. In practice, courts have found, as noted in People v. Chasserot, a 1972 opinion out of New York’s Court of Appeals, that “one isolated incident” doesn’t establish a ‘course of conduct’. In Hogan, for instance, a single instance of cursing and screaming at a person did not equal harassment.

If the harassment statute did forbid such heated outbursts and what we might call colorful expressions of opinion, it would arguably be unconstitutional. In People v. Dietze,

Defendant came to her doorway with a friend and, while facing the street,
referred to complainant as a “bitch” and to her son as a “dog”, and said that she would “beat the crap out of [the complainant] some day or night on the street”. With that, complainant fled in tears and reported the incident to authorities. Defendant had been aware of the complainant’s mental limitations and had, on a prior occasion, been warned by a police officer about arguing with her again.

The Court of Appeals found this ‘crude outburst’ to be constitutionally protected, noting that

[s]peech is often “abusive” – even vulgar, derisive, and provocative –
and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that . . . Casual conversation may well be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.

Before you run out and tell that special someone what you really think of him, though, you should be aware – that we are aware – of defendants who have spent hundreds of dollars in legal fees and undergone the humiliation of appearing in a criminal court, accused of giving the finger to a neighbor and calling him choice names (and they didn’t even do it).

In other words, rights are nice things if you have the money to enforce them.