New York Court of Appeals

People v. Dietze

75 N.Y.2d 47 (1989)

Opinion of the Court

HANCOCK, Judge.

Under Penal Law 240.25(2), the use of “abusive” language with the intent to “harass” or “annoy” another person is a violation punishable by a 15 – day imprisonment. Because the statute, on its face, prohibits a substantial amount of constitutionally protected expression, and because its continued existence presents a significant risk of prosecution for the mere exercise of free speech, we hold section 240.25(2) to be invalid for overbreadth, under both the State (art.I, 8) and Federal (1st & 14th Amends.) Constitutions.^[1]1The information, to the extent that it charges defendant under that subdivision, must, therefore, be dismissed. Additionally, because the evidence presented was legally insufficient to support a conviction for a threat under Penal Law 240.25(1), the remainder of the information, charging defendant with violating that subdivision, must be dismissed as well.

The relevant facts are few and undisputed. Complainant and her son, both mentally retarded, were walking down a public street in the Town of Norfolk. 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.

Town Court found defendant guilty of harassment in violation of subdivisions (1) and (2) of Penal Law 240.25^[2]2 and imposed a sentence of $50 and a surcharge or, if defendant should be unable to pay the fine, 15 days’ imprisonment. County Court affirmed and a Judge of this court granted defendant leave to appeal. With regard to her conviction under Penal Law 240.25(2), defendant argues, as she did in both courts below, that the subdivision is unconstitutionally overbroad because its prohibitions extend to a great deal of protected speech as well as to unprotected obscenities and “fighting words”. We agree.

To be sure, calling another a “bitch” or a “dog” – the conduct allegedly constituting the violation of section 240.25(2) here-is “abusive” in the ordinary sense of that term. The common dictionary definition of “abusive”, as “coarse”, “insulting” and “harsh”, certainly applies to defendant’s name-calling. Moreover, the evidence that defendant was aware of the complainant’s disability, that she had previously been admonished by a police officer, and that her name-calling was unprovoked was sufficient to support a finding that defendant had the requisite intent to “harass” or “annoy” the complainant (compare, People v. Bacon, 37 N.Y.2d 830, 378 N.Y.S.2d 29,340 N.E.2d 465; People v. Pecorella, 32 N.Y.2d 920, 347 N.Y.S.2d 69, 300 N.E.2d 437). Hence, there being no indication in the statute that some other, special meaning was intended for “abusive” language or intent to “harass” or “annoy”, defendant’s words to complainant and her son clearly fall within the facial scope of the statute.

Defendant’s words do not, however, fall within the scope of constitutionally proscribable expression, which is considerably narrower than that of the statute. Speech 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.

Defendant’s conviction under 240.25(1) must also be reversed. There is nothing in the record demonstrating that defendant’s statement that she would “beat the crap out of [complainant] some day or night in the street” was either serious, should reasonably have been taken to be serious, or was confirmed by the other words or acts showing that it was anything more than a crude outburst. While genuine threats of physical harm fall within the scope of the statute, such an outburst, without more, does not (see, People v. Todaro, 26 N.Y.2d 325,330, 310 N.Y.S.2d 303, 258 N.E.2d 711; see also, Watts v. United States, 394 U.S. 705, 708,89 S. Ct.. 1399, 1401, 22 L.Ed2d 664).

Accordingly, the order of County Court should be reversed, and the information dismissed.