
    The People of the State of New York, Respondent, v Paul H. Viau, Appellant.
    Argued June 5, 1980;
    decided July 8, 1980
    APPEARANCES OF COUNSEL
    
      Frank R. Bell for appellant.
    
      Richard J. Shay, District Attorney (Karen F. McGee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Cortland County Court should be reversed and the information should be dismissed.

Until amended by chapter 290 of the Laws of 1969, subdivision 1 of section 240.30 of the Penal Law covered only a person who "communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication”. Chapter 290 added after the word "communicates” the parenthetical phrase "or causes a communication to be initiated by mechanical or electronic means or otherwise”.

Clearly, the original wording did not cover a communication by citizens’ band radio, and we are told by the Practice Commentary to the section that the 1969 amendments "were directed mainly to a mechanical or electronic commercial device which is attachable to a telephone and may be set to make repeated — and doubtless annoying — telephone calls of recordings to prospective customers” (see Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, p 309). Moreover, the parenthetical clause defines only how the communication is initiated, not the means by which it is made. As to the latter, the statute in so many words tells us that statements of which it speaks are ones made "by telephone, mail or any other form of written communication”. Undisputedly, the communication here was not by telephone or by telegraph. Nor was it "mail and any other form of written communication”.

For these reasons, the section cannot be construed in its present form to cover communication by citizens’ band radio.

Chief Judge Cooke

(concurring). While I agree that the order of the County Court of Cortland County should be reversed and the information dismissed, my analysis takes a different path than that of the majority.

In my view, harassing statements violative of law can indeed be made over a citizens’ band radio. Any statement "initiated by mechanical or electronic means or otherwise” (Penal Law, § 240.30, subd 1), may form the basis of an aggravated harassment prosecution. To hold, as does the majority, that in addition to the language quoted above, the statute further requires that the statements be made "by telephone, or by telegraph, mail or any other form of written communication” not only constitutes a hypertechnical misreading of an unambiguous penal statute but effectively insulates a particularly egregious form of harassing conduct from the ambit of the statute as well. Plainly, under the majority’s reading of section 240.30, a person is not guilty of aggravated harassment if he orally communicates directly with his intended victim, since face-to-face conversation is not initiated "by telephone or telegraph, or any other form of written communication”. The structure of the subdivision with its frequent use of the disjunctive negates such a notion. That section 240.30 does not contain a laundry list of those devices through which harassing communications can be made grants courts no license to ignore its plain and express intendment.

However, as section 240.30 proscribes communications which are not necessarily obscene, it must be narrowly construed. The basis of the crime of harassment — a penal sanction that punishes the exercise of speech — is that the proscribed conduct is likely to lead to a breach of the peace. This rationale, of course, loses much if not all of its force where the language complained of is not heard by or directly aimed at the complainant. Thus, constitutionally protected speech which cannot incite to violence because it is not communicated to the complainant may not form the basis of a criminal prosecution (see Cohen v California, 403 US 15; Chaplinsky v New Hampshire, 315 US 568, 572). The crime of harassment by its nature necessitates annoyance, anxiety or worry on the part of complainant caused by the vexing conduct of the defendant (see People v Todaro, 26 NY2d 325, 330; 39A CJS, p 353). Without direct communication to the complainant, a harassment conviction cannot be sustained. Whatever civil liabilities defendant may have exposed himself to as a result of his diatribe, the failure of complainant to hear the broadcast precludes imposition of this criminal sanction.

Judges Jasen, Gabeielli, Jones, Fuchsberg and Meyer concur; Chief Judge Cooke concurs in result in a separate opinion in which Judge Wachtler concurs.

Order reversed and information dismissed in a memorandum.  