The People of
the State of New York, Plaintiff,
against
Carlos Febo-Santiago, Defendant.
|
13090002
APPEARANCE OF COUNSEL
BRADLEY D. MARBLE, LOCKPORT TOWN PROSECUTOR,
FOR THE PEOPLE
CARLOS FEBO-SANTIAGO, PRO SE
Leonard G. Tilney Jr., J.
The case was a Non-Jury Trial held October 1, 2014 in which only one witness was
heard, that being the Defendant's ex-wife. The People presented Tobi Simeon, a U.S.
Customs Officer, to establish a violation of Section 240.26(3) of the Penal Law,
Harassment in the Second Degree, involving a course of conduct or repeatedly
committed acts which alarmed or seriously annoyed Ms. Simeon and which served no
legitimate purpose.
Her testimony indicated that after a divorce proceeding in any issue of
custody of Defendant's son (Zachery), she is the sole arbitrator of visitation. From her
testimony it was clear that she was afraid of the Defendant and, although visitation
initially occurred after a period of several months wherein the witness did not hear from
the Defendant, she thought by mid-summer of 2013 the Defendant's behavior became
escalatingly aggressive. Throughout the process of the custody issue and divorce, the
Niagara County Social Services did a wellness check on the Defendant and he was
placed in Niagara Falls Memorial Hospital for psychiatric observation. The basis of the
criminal complaint were the Defendant's texts on June 3 and on August 26, 2013. These
texts occurred after the witness had told the Defendant not to contact her. She testified
that the texts contained no threats of violence and that the Defendant wanted to get a
[*2]message across to his son. It is after the second text
of August 26, 2013 that Ms. Simeon filed a pro se information with the Court.
There was certainly testimony that Ms. Simeon was afraid of the Defendant in that he
had previously contacted her at her place of employment; that she would call the Niagara
County Sheriff's Department on various times when he contacted her; at times it was
difficult for her to understand the Defendant's speech; and that he would not undergo any
extended psychiatric care. Ms. Simeon felt harassed, annoyed or alarmed, and she
believes that the Defendant did have the intent to annoy her when he continued to text.
However, on cross-examination by the Defendant, when asked which text served no
legitimate purpose, no answer could be given. The text of June 3 was introduced into
evidence and is quoted as follows:
DEFENDANT (D):How is Z?
MS. SIMEON (S):He's fine
D:Is he reading? Writing?
S:Yes all the above
D:I want to talk to him.
Can I call and speak to him?
S:I am not at home and it's a bad night. Ranger
just had surgery again.
D:Where is Ranger? Where is Z?
S:Don't worry about them they r fine. Take care of
yourself.
D:Please let me know when I can talk to Zachary.
S:You haven't wanted to in six months. Are u in treatment?
D:Not in treatment. Is not about wants. I love my son.
Is that what you are telling him?
S:Telling u what?
Oh him Of course not I would never say that
D:Does he ask about me?
S:Why all the sudden does it matter to you? I've tried to talk to us for months
and got nothing.
D:It has mattered all along. It's not about not caring.
S:What's it about then?
Feel free to call me if you'd like to discuss this.
Or would u rather I call you?
D:childhood even if I am not there to be the one taking care of him day to
day.
I love my son. I care about him. My financial obligations toward you are been met.
My most important duty as a father is to make sure he is having a good
Please don't think it's about lack of love. It's all the opposite.
S:I don't think this a text conversation. Answer ur phone
U didn't answer.
D:Don't feel like talking.
S:Well that's the problem. Always has been. Not the lack of love as u were
saying
If you don't talk to me I have no options
D:Tell my son I love him.
S:Always do. I think we should talk
D:Understandable.
I'm going out. Have a good night.
S:Just don't show up here
D:Thought you were out.
S:I didn't even say I was home!
D:You didn't; you texted indicating you were not at your home.
S:You have me nervous. U should call. Or would you prefer a wellness
check?
D:Don't be alarmed. No checks.
S:Then u Should call me ASAP
D:Not now.
S:Then I need to do a wellness check
D:You have a good night.
Calling someone?
S:Yes if u don't call in two minutes
D:I am sorry. I am at the troopers now.
Don't be alarmed. No checks.
S:Ok good
Don't text or call until you have had treatment
D:May I ask why I can't text asking for my sons welfare?
About
S:Now u r harassing me
No information was provided by the People for the content of the August 26, 2013
text.
STATUTE
PENAL
LAW § 240.26 Harassment in the Second Degree
Definition
"A person is guilty of harassment in the second degree when, with intent to
harass, annoy or alarm another person:
1.
2.
3.He or she engages in a course of conduct or repeatedly commits acts which
alarm or seriously annoy such other person and which serve no legitimate purpose."
POSITION OF THE PARTIES
The People maintain that the two contacts Defendant had with his ex-wife
annoyed her to the point in which she became afraid. The Defendant states quite frankly
that the content of the texts would alarm no one and they did serve a legitimate purpose
of requesting either visitation of his son or at least inquiry into his son's
wellness.VERDICT
The Court notes that the
mens rea issue is not whether a particular person has been harassed, annoyed or alarmed
by the actor's conduct, but rather whether the actor intended to harass, annoy or alarm.
See People v. Concannon, 28 NY2d 854. Subdivision 3 is a catch-all
provision deemed necessary because of the impossibility of compiling a comprehensive
list of numerous specific kinds of conduct logically falling within the proscriptions of the
harassment offense (See staff comments of the Commission on Revision of the Penal
Law 1965, p. 300). The offense, however, requires a "course of conduct" or repeated acts
to violate the section. One isolated incident will not suffice. See People v.
Chasserot, 30 NY2d 898. In reviewing the actual facts of the case, it is clear that
the parties are communicating by way of their cell phones or some electronic device,
usually texting. The Court does not understand why a misdemeanor Aggravated
Harassment in the Second Degree charge was not filed. It is clear to the Court that the
pleadings require a course of conduct which the Court finds as a matter of law does not
exist. The Court has only the text of June 3rd which conveys no threats, only inquiries
into the status of the Defendant's son. The People did not offer or introduce any text for
August 26, 2013. This is fatal to their case as the June 3, 2013 text does not violate the
statute. There is no question in the Court's mind that Ms. Simeon is petrified by the
Defendant, but criminal statutes must be strictly construed. They are not to be used to
obtain Orders of Protection or other quasi injunctive relief of anticipatory issues.
Accordingly, the Court finds the Defendant NOT GUILTY.
Dated: October 3, 2014___________________________Hon. Leonard G.
Tilney, Jr.,
Lockport Town Justice