People v. Viau

409 N.E.2d 1376, 50 N.Y.2d 1052, 431 N.Y.S.2d 702, 1980 N.Y. LEXIS 2563

• Court: New York Court of Appeals
• Decided: July 8, 1980
• Status: Published

Opinions

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.