Opinion
2007NY092014
07-16-2008
The People of the State of New York v. E.P., a/k/a E.C., Defendant.
J. Whiten, J.
One of the hallmarks of contemporary American culture is a heightened focus on the private lives of individuals who have achieved notoriety within their professions, particularly within the entertainment industry. While this most often manifests itself in harmless, if sometimes annoying or inconvenient, interactions between the fans and the famous, there are instances when prohibited, dangerous and even lethal conduct takes place; the observation of French Renaissance essayist Michel de Montaigne (1533-1592) unfortunately holds true today "Fame and tranquility can never be bedfellows." This court is now called upon to decide the parameters of what constitutes stalking in the fourth degree as it pertains to conduct alleged to have been directed at the Emmy-winning television producer, writer and comedian Lorne Michaels.
The defendant, E.P., stands charged by information with one count of stalking in the fourth degree (PL § 120.45 [1]), and one count of resisting arrest (PL § 205.30). He now files a motion seeking dismissal for facial insufficiency, along with various other relief. For the following reasons, defendant's motion to dismiss is denied.
In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15[3] and 100.40[1]; see People v. Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]).
The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (People v Alejandro, 70 NY2d at 138, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments); however, it is nevertheless a much lower threshold than the burden of proof, beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Finally, where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 390 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 2005 NY Slip Op 25179 [Crim Ct NY County [2005]).
In this case, defendant was arrested after allegedly having contacted the complainant via telephone, letters sent through the mail, a hand-delivered written note, and personal appearances at the complainant's residence. The information sets forth allegations concerning six separate acts by defendant, occurring over ten months' time, which included defendant's assertions that "Mr. Michaels' television program, Saturday Night Live had overheard' defendant's private conversations, singing and/or other utterances' and used them on said program without defendant's consent," and that "certain writing on said program reflected defendant's personal thoughts', tastes' and sense of humor' without permission," and that "this made the defendant very upset' ". Further, the information alleges that when police officers attempted to arrest defendant for the alleged stalking, defendant "flailed his arms, refused to place his hands behind his back, and pushed one officer away when the officer attempted to handcuff the defendant.
As to the stalking charge, Penal Law §120.45 (1) provides that a person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted. As to the charge of resisting arrest, Penal Law § 205.30 states that a person resists arrest by intentionally preventing or attempting to prevent a police officer from effecting an authorized arrest.
Defendant argues that the accusatory instrument is facially insufficient because it fails to set forth factual allegations to establish each element of the offense. Specifically, defendant argues that the allegations fail to show that defendant engaged in a "course of conduct"; that he acted with the requisite intent and with no legitimate purpose; and that the defendant's actions caused or were likely to cause reasonable fear of material harm. In regard to the second charge, defendant argues that the arrest was not authorized, and, as well, that defendant did not know that the plainclothes officers who were arresting him were in fact, police officers, and that he therefore could not have intended to resist arrest by an officer.
Defendant's arguments as to the stalking charge are unpersuasive. The anti-stalking statute was enacted in 1999, at which time the Legislature noted that "criminal stalking behavior...has become more prevalent in New York state in recent years. The unfortunate reality is that stalking victims have been intolerably forced to live in fear of their stalkers...who repeatedly follow, phone, write, confront, threaten or otherwise unacceptably intrude upon their victims, often inflict immeasurable emotional and physical harm upon them. Current law does not adequately recognize the damage to public order and individual safety caused by these offenders" (Donnino, 2004 Main Volume Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, Art 120, at 182-183). While the correlation between stalking and intimate relationships was foremost on the Legislature's agenda (id., 183), there is no reason to exclude or minimize the impact of stalking that occurs between total strangers, as is most often the case when the target is a celebrity.
Although the vast majority of stalking victims are private citizens who knew their stalkers (Brody, Researchers Unravel the Motives of Stalkers, New York Times, August 25, 1998, sec F, p 1, col 1), celebrity stalking is increasingly common. Recently in this courthouse, a defendant was found guilty of stalking movie star Uma Thurman over a period of two years; other celebrities who have been stalked, most often by professed fans, include television personality David Letterman, fashion model and television personality Tyra Banks, soccer star David Beckham, singers Madonna and Janet Jackson, actress Jodi Foster, and, perhaps most famously as well as most tragically, musician John Lennon. It is against this backdrop that defendant's conduct must be weighed.
As to the elements of the alleged offense, it is first clear that the allegations establish that defendant engaged in a course of conduct. It is alleged that on March 5, 2007, he left a voice mail message for the complainant at complainant's workplace; on March 15, 2007, he sent a letter to complainant at complainant's workplace; on December 6, 2007, he sent a letter to complainant's home; on December 7, 2007, he appeared in person at defendant's home, not once, but twice, attempting to speak with or see the complainant; and on the second of these two visits, he left a handwritten note for the complainant with the doorman at the building where complainant resides, expressing a desire to "chat." While the statute is silent as to what precisely constitutes a course of conduct, it is nevertheless clear that sustained and escalating conduct, as defendant is alleged to have engaged in here, is significantly more than an "isolated incident" which would fail to show a course of conduct (see People v Valerio, 60 NY2d 669 [1983]).
In relation to factually similar menacing charges, several trial courts have found that "the term course of conduct' may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose" (People v Payton, 161 Misc 2d 170, 174 [Crim Ct NY County, 1994]) (emphasis added)(relying on People v Tralli, 88 Misc 2d 117 [App Term, 2d Dept 1976]) (see also People v Murray, 167 Misc 2d 857 [Crim Ct NY County, 1995]; People v Monroe, 183 Misc 2d 374 [Crim Ct NY County, 2000]). The allegations here clearly show defendant's continuity of purpose; his behavior throughout was governed by his intention to make contact with Mr. Michaels in order to discuss the problems defendant perceived regarding defendant's private thoughts being used without permission. Defendant had no other purpose, and it was continued throughout his attempts to make contact.
Defendant's reliance on People v Stuart (100 NY2d 412 [2003]) is misplaced, inasmuch as by confirming a stalking conviction based on evidence which showed daily contact, the Court of Appeals did not raise the bar above and beyond the requirements of the statute. The offense of stalking in the fourth degree requires two mental states. A person is guilty of stalking if they intentionally engage in a course of conduct; and they know or reasonably should know that their conduct will create reasonable fear of material harm to the person they are targeting. Thus, it is irrelevant that, as defendant asserts, he did not intend to violate the statute; rather, what is relevant is it is alleged that he intentionally engaged in the behaviors which displayed his continuity of purpose in seeking contact with Lorne Michaels. As the court held in People v Stuart (100 NY2d 412 [2003]), the statute "focuses on what the offenders do, not what they mean by it or what they intend as their ultimate goal. [ ] If the legislature had required that the stalker intend to frighten or harm the victim, the statute would be debilitated and a great many victims endangered" (id., 427) (emphasis added).
The statute further requires that a person engaged in stalking have no legitimate purpose for their conduct. Defendant relies on People v Shack (86 NY2d 529 [1995]) for the proposition that a showing of no legitimate purpose is made only when the communication lacks ideas other than threats, intimidation or coercion; however, this principle is inapplicable to stalking cases, because Shack dealt only with a charge of aggravated harassment (PL § 240.30[2]), not stalking. While the court in People v Stuart (100 NY2d 412 [2003]) did state that "the phrase no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten," (id., 428), the court went on to state that "[t]he common understanding of that phrase and the various other provisions of the anti-stalking statute, when read as a whole" put defendant on notice that his pursuit of the complainant was unlawful. Here, in giving the phrase "no legitimate purpose" its ordinary meaning, while considering it within the context of the of the statute as a whole, this court finds that defendant's purpose was not legitimate; indeed, defendant's purpose discussing, with Lorne Michaels, the use of defendant's personal thoughts without his permission was a factor creating a likelihood of reasonable fear on the part of the complainant.
Actual fear, whether reasonable or not, is not a required element of the offense; the facts need only show that a defendant knows or should reasonably know that his actions are likely to cause reasonable fear (PL § 120.45 [1]) (emphasis added). In this case, the factual allegations do assert that the complainant was in reasonable fear, and this court finds that the defendant should have reasonably known that his actions were likely to cause such a result. The defendant is neither acquaintance nor colleague to the complainant; and the objectives allegedly stated in defendant's communications would tend to indicate an interest in the complainant that was well on its way to becoming the kind of obsession that can only lead to more problems and possible danger. In the most extreme cases, individuals who engage in such obsessive behavior "exhibit a broad range of behaviors, motivations and psychological traits" (Brody, Researchers Unravel the Motives of Stalkers, New York Times, August 25, 1998, sec F, p 1, col 1) and are often motivated by mental illness or personality disorders that are recognized in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), such as depression, schizophrenia, narcissism or erotomania. In short, if the allegations set forth in the complaint are true, Lorne Michaels had ample reason to be in fear. Additionally, a person who engages in the behavior alleged in this case knows or should know that such behavior is likely to create reasonable fear in the person against whom such behavior is directed. The likelihood of creating reasonable fear is neither diminished nor amplified by the fact that the complainant is a celebrity, and this finding does not offer any special protection to the complainant due to his notoriety; to the contrary, a likelihood of reasonable fear arises whenever one person blames another for unsanctioned use of private thoughts, and repeatedly attempts to communicate regarding this topic.
The allegations also set forth a facially sufficient charge of resisting arrest. First, defendant's alleged conduct established the requisite probable cause for the arrest of the defendant. As set forth above, the defendant's conduct, if true, encompassed every element of the offense of stalking, and the police officers who effectuated the arrest had reason to believe that a crime had been committed. Defendant's contention that the officers did not identify themselves, contrary to an explicit allegation in the complaint that the officers did identify themselves, is an issue for trial. Furthermore, defendant's attempted reliance upon People v Saitta (79 AD2d 994 [2d Dept 1981]) is misplaced, inasmuch as the testimony at trial in Saitta included the arresting officer's concession that he did not properly inform the defendant, therefore creating a basis for overturning defendant's conviction for resisting arrest. In this case, at this stage in the proceeding, there is no such concession by the police.
Clearly, the factual allegations, if taken as true, sufficiently set forth the charges of stalking and resisting arrest. In conclusion, the court finds that the presently challenged charges are facially sufficient, inasmuch as defendant has notice sufficient to prepare a defense and the charges are adequately detailed to prevent defendant from being tried twice for the same offense (see People v Casey, 95 NY2d 354 [2000]).
Regarding defendant's remaining applications, a Huntley/Dunaway hearing is ordered, and issues pertaining to Sandoval and Molineux are deferred to the trial court.
This constitutes the decision and order of the Court.
Dated:July 16, 2008
New York, New York
Marc J. Whiten, JCC