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A Westchester County, New York, family court judge who last month controversially dismissed one telephone harassment charge has announced modified views on the issue in a separate, more recent opinion. In the latest case, Acting Judge Thomas A. Dickerson found that a man committed aggravated second-degree harassment when he threatened the mother of their child during a phone conversation, even though the call was placed by the victim. Dickerson held that since the communication was begun by the defendant’s pager message, the fact that the victim initiated the telephone conversation would not require dismissal of the charges. Initiation of the harassing contact is a required element under the Penal Law. Moreover, Dickerson devoted a large portion of his opinion to an argument that the Legislature should modify the Penal Law section on aggravated harassment to protect persons who receive threats during telephone calls they have placed. A crucial factual distinction separates the recent case, A.M. v. M.I., 0-2823-00, and last month’s decision, P.I. v. C.D. (NYLJ, Nov. 22, 2000, p. 37 col. 2). In A.M. there was a pager message in which the defendant asked the victim to call him. When the victim called, the defendant said he would “do what he has to do” to “get rid” of the mother, so that he could see his children. In P.I., the mother called the father to inquire why their child had not been returned after a visitation. During the call, the father delivered a threat to kill the mother and child. In P.I., Dickerson said there was no intentional precipitation of the disputed telephone call. There was a failure, therefore, to prove that the father initiated the harassing contact. But in the A.M. case, Dickerson reasoned, the lack of literal initiation is overcome, since the defendant’s pager message effectively induced the telephone call. Finding the defendant in violation of the Penal Law, Dickerson imposed a one-year order of protection in favor of the victim and her children. EXCEPTIONS NEEDED The court said that at least three other courts in New York state have recognized an exception to the initiation rule where the defendant precipitates the telephone contact. “In the instant case the precipitating event occurred when [defendant] ‘paged’ the [victim] inducing her to initiate a telephone conversation during which he threatened her with physical harm,” Dickerson wrote. He urged legislative action to make the Penal Law more protective of victims who initiate telephone contact in response to a precipitating event. A literal reading of Penal Law Section 240.30(1), which defines aggravated harassment, “creates a paradox which may be inexplicable to the victims of domestic violence and which may be the subject of criticism,” Dickerson observed. Dickerson argued that the Penal Law should be amended to “make it, unambiguously, applicable to defendants who harass and threaten after receiving a telephone call from the victim.” Until the Legislature acts, however, courts should broadly interpret the Penal Law to protect the class of persons it is aimed at aiding. Observing that there is a positive correlation between the threat of violence and the reality of violence, Dickerson said, “It is in the best interests of the recipients of threatening telephone calls, particularly, those threatening violence or death, for our Family Courts to more broadly interpret [Penal Law Section] 240.30(1) to cover those instances where the [defendant] receives the telephone call … and then intentionally threatens the caller with physical violence or death.” The lawyer for the victim, A.M., is John Iacono of Bronxville, N.Y. The defendant, M.I., was represented by Lawrence S. Horowitz of Bedford Hills, N.Y

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