Constitutional Rights Attorney -- Criminal Harassment

UPDATE:

In May and July 2014, the Court of Appeals issued two pivotal decisions bearing on the First Amendment and public order offenses.  In Golb, the Court found aggravated harassment in the 2nd Degree unconstitutional (based on the same reasoning as described in my post below), and then in Marquan the Court of Appeals commented on the practice of using "no legitimate purpose" to save otherwise unconstitutional statutes.  Read More here.

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Original Post
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The laws criminalizing "offenses to public order," (i.e. the "disturbing the peace" family of crimes such as harassment and loitering), need to be carefully drafted to avoid constitutional issues.  Frequently, the phrase "for no legitimate purpose" is added to these statutes, letting the courts define what constitutes a "legitimate purpose," so that constitutional issues can be avoided. See People v. Shack, 86 N.Y.2d 529 (1995).

Subsection One of New York Penal Law 240.30, defining Aggravated Harassment in the Second Degree, however, has some drafting issues that need to be addressed by the State Legislature.  The law criminalizes any communication where someone "with intent to harass, annoy, threaten or alarm another person... communicates... by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm."  This crime is classified as a Class A Misdemeanor, meaning that it carries a sentence of up to one year in prison and/or up to a $1,000 fine.

Essentially, as phrased, the law criminalizes being intentionally annoying or causing alarm, for any purpose. This could describe any other emergency communication or warning, such as reporting a fire or telling someone they need to go to the hospital right away; it could almost any argument over the telephone; or it could describe someone engaging in parody that is protected by the First Amendment.

The problem with the law's phrasing has been known for decades.  Rather than throwing out the statute, however, the courts would interpret the statute as containing additional elements or limitations, and would evaluate each case to see if the statute was unconstitutional "as applied."  People v. Dupont, 107 A.D.2d 247, 253 (1st Dept. 1985).  People v. Smith, 89 Misc. 2d 789 (App Term. 2d Dept. 1977).

In 2003, the Court of Appeals found this statute unconstitutional. People v. Mangano, 100 N.Y.2d 569, 571 (2003).

By that point, however, the legislature had already amended the statute, and thus Mangano was based on the pre-2001 version and is not necessarily binding on charges brought under the latter version.  Rather than address the Constitutional concerns, however, the 2001 amendments were mostly stylistic.  Whereas the statute previously said "communicates, or causes a communication," now it is divided into two paragraphs, one starting with "communicates," and the other starting with "causes a communication."  

In 2008, the U.S. District Court for the Southern District of New York found the current version of the statute unconstitutional, and found that the City of New York could be civilly liable for enforcing it.  Although the constitutional issue was not appealed, the Second Circuit sent the matter back for further submissions on whether the City had an option to enforce the law, or if it was required by the State.  The matter was settled prior to another written decision being issued. Vives v. City of New York, 524 F.3d 346, 357-358 (2d Cir. 2008).

Following Mangano and Vives, some courts have held that this subdivision one of Penal Law 240.30 is unconstitutional and dismissed charges brought under that section, while others continue to enforce it depending upon how it is being applied. See People v Louis, 2011 Slip Op 21254, 927 N.Y.S.2d 592, 597 (Nassau County Dist. Ct., 2011).

The overbroad wording is a problem that could probably be fixed by simply adding the phrase "with no lawful purpose" to the law, but given the emerging phenomena of cyber-bullying and related issues, the legislature may want to do additional re-writing.  There are other disorderly conduct laws on the books that deal with general "threatening behavior," so it is not as if people are permitted to run amock, but this law, if properly worded, is supposed to deal directly with threatening or harassing phone calls and similar written/electronic communications.