#### The People of the State of New York, Respondent, v. John Carvelas, Appellant.

Supreme Court, Appellate Term, First Department,

September 26, 1973.

*William E. Hellerstein, Robert Kasanof*and *James G. Mauro, Jr.,*for appellant. *Frank 8. Hogan, District Attorney (Lewis R. Friedman*and *Alan L. Kovacs*of counsel), for respondent. *Cohn, Glickstein, Lurie, Ostrin & Lubell*for Hotel Motel and Club Employees Hnion, Local No. 6 AFL-CIO, *amicus curiae.*

*Per Curiam.*

Defendant was charged with assault in the third degree arising out of his striking the complainant and with harassment in his threatening to *“*get ” the complainant. Similar harassing conduct directed against a different complainant by this defendant and by defendant James Manos is the subject of two companion appeals (Nos. 212 and 541 of June, 1973). Having been acquitted of the assault charge and found guilty of two counts of harassment, defendant on this appeal alleges that he was entitled to a jury trial since he was charged with assault in the third degree, a Class A misdemeanor.

Defendant was not prejudiced by the failure to provide him with a jury trial, because the court found him guilty only of *617harassment and not guilty of the assault charge. Upon remand for a new trial, the defendant could be tried for harassment only and would thus not be entitled to a jury trial. In *People*v. *Moyer*(27 N Y 2d 252), it was held that harassment is not a lesser included crime in the crime of assault in the third degree. The elements of the crimes are different and require a separate rational process peculiar to each. CPL 220.20 (subd. 1, par. [f] ) provides that “ where the crime charged is assault * * * the offense of harassment, as defined in subdivision one of section 240.25 of the penal law, is deemed to constitute a lesser included offense ” [as delineated in subdivision 2 of section 220.20] “ *only for purposes of conviction upon a plea of guilty \and not for purposes of conviction by*verdict.” (Emphasis supplied.) To reverse the judgment of conviction, under the circumstances herein, in order to have a nonjury trial of the harassment charge only, would exalt form over substance.

Although there is an aura of labor-management difficulty present and although defendant Carvelas was a shop steward and the defendant in a related case, James Manos, was a union supporter, there is no indication in the record that their conduct took place during a protected activity. The dissent views the circumstances herein as analogous to labor eases involving the NLRB where a distinction is made between threats, impulsive behavior and dirty language arising out of genuine labor conflicts, and unconnected verbal or physical violence justifying management action. Scrutiny of *Crown Cent. Petroleum Corp.*v. *N. L. R. R.*(430 F. 2d 724), cited in the dissent, impels the conclusion that the area of protected activity in labor disputes is reasonably circumscribed. In that case, members of a grievance committee in a grievance meeting called the supervisor a liar and profanity followed. The court found this to be a protected activity under the N. L. R. A. It distinguishes *Boaz Spinning Co.*v. *N. L. R. R.*(395 F. 2d 512) where reference to a management representative as a “Castro” and a “totalitarian dictator ’ ’ was held to be unprotected. Although these statements were made at the time of a lawful management persuasion speech, the court in *Boas*held that “flagrant conduct of an employee, even though occurring in the course of a section 7 activity, may justify disciplinary action by the employer ” *(Boaz Spinning Co.*v. *N. L. R. B.,*p. 514, *supra).*

Defendants Carvelas and James Manos did not sufficiently demonstrate that they were engaged in a protected activity. Their actions did not occur at a grievance meeting, a collective bargaining session, an election speech or a union meeting. Even *618if their conduct is viewed as occurring within the context of a protected activity, such conduct is not *ipso facto*immune from criminal prosecution. The observation that employee’s “ rights, derived from section 7, must be balanced against the employer’s right to maintain order in his business by punishing acts of insubordination ” is relevant in this regard *(Crown Cent. Petroleum Corp.*v. *N. L. R. B., supra,*p. 729). On the facts herein, the National Labor Relations Act may not be viewed as proscribing punishment of the defendants by the State.

Defendant Carvelas alleges that subdivisions 2 and 5 of section 240.25 of the Penal Law are unconstitutional. In view of the presumption of constitutionality and in view of defendant’s failure to demonstrate unconstitutionality, defendant’s claim is rejected. In *Gooding*v. *Wilson*(405 U. S. 518, 520 [1972]), it was held that a State “harassment” statute can withstand attack upon its constitutionality only if, as construed by the State courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First Amendment. Judicial construction of section 240.25 of the Penal Law has limited its application to words and/or gestures which substantially annoy a person to the degree that there would be a direct tendency for the person addressed to react by an act of violence or a breach of the public peace *(People*v. *Benders,*63 Misc 2d 572). The United States Supreme Court has held such interpretation of a similar State statute to be constitutional (see *Chaplinsky*v. *New Hampshire,*315 U. S. 568).

The judgment of conviction should be affirmed.

Markowitz, P. J.

(dissenting). I dissent and would reverse the conviction.

The statute we are dealing with (Penal Law, § 240.25) is addressed to offensive behavior in public places intended by the actor to harass, annoy or alarm others. However, the allegedly offensive conduct — be it deed or utterance — must be carefully examined in the context in which it was performed, lest the application of the statute bring about constitutionally incompatible results, or restraints never intended by the Legislature when it conceived harassment as an offense.

The background of instant case suggests the presence of a triangular labor dispute. On the one hand there appears to be a bitter conflict between two factions of a union. Defendant Carvelas is an undoubted leader of the dissident faction, defendant Manos in the companion case is one of his supporters. On the other hand, there appears the usual union-management sitúa*619tion with management favoring perhaps the “ regular ” faction of the union.

Against this tapestry, the language used must be examined.

To William Hamel, the headwaiter of the hotel banquet department, Carvelas (who was shop steward) hurled the epithets “ Nazi bastard ”, and “ dictator ”, and said of him “ we have to get rid of this damn Nazi ” and that “ I don’t take orders from a Nazi bastard ”. Manos advised him that he (Hamel) was “ just shit to me ”, called him a “ drunk ” and “ drunkard”, referred to him as a “drunkard”, “Nazi bastard”, “ dictator ”, .and “ son-of-bitch ”, and boasted that he “got bigger balls than Hamel ”.

To Bogdan, a Hamel subordinate, Carvelas is also accused of saying “I’ll break you in half, you bastard ”, “ son-of-a-biteh ”, and “ if I get in I will take care of you ”.

Terrible words, perhaps, but are they so offensive that they may be characterized as an injury to the public peace? Assuming even that the profanities, insults and obscenities used might under ordinary circumstances come within the purview of harassment, the background herein of a heated labor dispute requires the situation to be viewed in a different light.

Offensive language used to express an opinion — in labor, political, or other constitutionally protected matters — regardless how revolting and tasteless it may be — must be afforded the same First Amendment license that is applied to more restrained utterances of opinion. Defendants did not like the management — they considered management representatives to be dictatorial and said so. The truthfulness or lack thereof of the statements is not in issue. The only important thing is “ Were they expressing an opinion? ” If so, the gutter language and the odious behavior are of no significance. The utterances are constitutionally protected despite whom they offend.

Situations parallel to those at bar appear in cases relating to N. L. B>. B. jurisdiction in which distinction is made between threats, impulsive behavior and dirty language arising out of genuine labor conflicts, and unconnected verbal or physical violence justifying management action. It was stated in *N. L. R. B.*v. *Thor Power Tool Co.*(351 F. 2d 584) (where a management representative was called a “ horse’s ass ” and told to “ shut your----------mouth ”), that “ remarks cannot be made in a vacuum ”. Where they merely furnish an excuse for management to eliminate agitating employees, they are part of a protected “ labor conflict ”. See also, *N. L. R. B.*v. *Leece-Neville Co.*(396 F. 2d 773) (“angry advance of manager”); and *620*N. L. R. B.*v. *Yazoo Val. Elec. Power Assn.*(405 F. 2d 479) (challenge to fight couched in obscene language).

Of particular significance because of its similarity to the matters here in question is *Crown Cent. Petroleum Corp.*v. *N. L. R. B.*(430 F. 2d 724) where references to a management representative as ‘ ‘ Castro ’ ’ and a ‘ ‘ totalitarian dictator ’ ’ were held to be protected, even though they may have been unjustified, since they arose out of genuine labor-management tensions.

Aside from what was said, reversal is also mandated by the fact of where it was said. The offense of harassment can only be committed in a public place. A waiter’s locker room — by its very term- — -is a highly private locale. To consider it otherwise, is a distortion of the statute which I believe was never intended by the draftsmen. To -say that profane language is so out of place .in a locker room reserved for working class males that it may be characterized as an offense in a “ public place ”, defies credulity.

There are appropriate tribunals for the settlement of labor-management conflicts. The Criminal Court is not one of them. The situs, the context in which the utterances were made, and the fact that they border on opinion — all combine to vitiate the criminal nature of the words.

Accordingly, it is my opinion that the conviction should be reversed and the complaint dismissed.

Lupiano and Quinn, JJ., concur in *Per Curiam*opinion; Markowitz, P. J., dissents in memorandum.

Judgment affirmed.