NY’s Aggravated Harassment Unconstitutional

On July 4, 2014, in Criminal, by John A. Weber IV, ESQ.

Part of NY’s Aggravated Harassment in the Second Degree ruled unconstitutional

On May 13, 2014, in People v. Golb, the NY Court of Appeals struck down Section 1 of NY’s Aggravated Harassment in the Second Degree as unconstitutional. The Court found 240.30 (1) unconstitutionally vague and overbroad under both the New York and Federal Constitutions. The Court stated that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.”

The NY Legislature has PROPOSED and PASSED an amended statute which contains major changes to section 1 of  240.30 – NY’s Aggravated Harassment in the Second Degree:

  • Section 1 now requires a threat of harm to person or property.
  • additional changes were also made to sections 1-5, and
  • section 6 has be eliminated

As of today, it does not appear that Gov. Cuomo has signed the bill into law.

The old statute (section 1 is no longer enforceable):

 § 240.30 Aggravated harassment in the second degree.
A person is guilty of aggravated harassment in the second degree when,
with intent to harass, annoy, threaten or alarm another person, he or
she:
1. Either (a) communicates with a person, anonymously or otherwise, 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; or
(b) causes a communication to be initiated by mechanical or electronic
means or otherwise with a person, anonymously or otherwise, 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; or
2. Makes a telephone call, whether or not a conversation ensues, with
no purpose of legitimate communication; or
3. Strikes, shoves, kicks, or otherwise subjects another person to
physical contact, or attempts or threatens to do the same because of a
belief or perception regarding such person’s race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation, regardless of whether the belief or perception is
correct; or
4. Strikes, shoves, kicks or otherwise subjects another person to
physical contact thereby causing physical injury to such person or to a
family or household member of such person as defined in section 530.11
of the criminal procedure law.
5. Commits the crime of harassment in the first degree and has
previously been convicted of the crime of harassment in the first degree
as defined by section 240.25 of this article within the preceding ten
years.
6. For the purposes of subdivision one of this section, “form of
written communication” shall include, but not be limited to, a recording
as defined in subdivision six of section 275.00 of this part.
Aggravated harassment in the second degree is a class A misdemeanor.

Share:

Can police search your cell phone?

On July 4, 2014, in Criminal, by John A. Weber IV, ESQ.

Maybe.

Riley v. California – “The Cell Phone Case”

On June 25, 2014, the United States Supreme Court decided the case of Riley v. California. In a unanimous decision the Supreme Court held that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”  Therefore, with some exceptions, officers must first secure a warrant before conducting a search of your cell phone incident to an arrest. The Court went on to explicitly state that “even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.”

One such exception that may justify a warrantless search of a cell phone is exigency. The Court stated that exigent circumstances “could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.” The Court also stated that the exigent circumstances exception could be used to deal with “a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone.” Though not mentioned by the Court, the consent and abandonment exceptions may also apply under certain circumstances. I can also imagine a scenario where the plain view exception could be used to establish exigency or  support a warrant application.

Additionally, the court stated that law enforcement officers “remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case.”

Share:

Serious Injury Threshold in Personal Injury Cases

On June 14, 2014, in Personal Injury, by John A. Weber IV, ESQ.

Often times in Personal Injury cases, the injury itself becomes an issue.  Not all injuries are sufficiently damaging to be considered “serious” under New York Insurance Law, section 5102(d).   The facts of each particular case will determine whether or not each claimed injury meets the threshold of a “serious injury” under this statute.  In order to cross the threshold and satisfy the statute, the nature of the injury itself must be a “permanent consequential limitation of use of a body  organ or member” or “significant limitation of use of a body function or system.”   These standards were interpreted by the Court in Toure v. Avis Rent a Car Systems, Inc., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865 (2002) and later strengthened by the Courts in Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011) and Adler v. Bayer, 77 A.D.3d 692, 909 N.Y.S.2d 526 (2d Dep’t 2010).  Patrick Higgins, Esq. discusses the significance of these cases in great detail in The Plaintiff’s Personal Injury Action in New York State.

Understanding the categories of injuries and the way in which the law views each type of injury can be a daunting task.  It is in your best interest to consult with an attorney to help clarify any questions you may have about whether or not your injury will pass the threshold of a “serious injury” under New York Insurance Law, section 5102(d).

Just for informational purposes; there also exists a 90/180 rule.  This rule includes injuries that cause an injured victim to miss 90 out of 180 days from work.  This particular post is not directed towards explaining this category but it is important to be aware of.

As always, if you need assistance with any aspect of your Personal Injury case, including threshold questions, please call (516) 858-2620 to speak to a Personal Injury attorney today!

Share:

Disorderly Conduct

On June 13, 2014, in Criminal, by John A. Weber IV, ESQ.

Disorderly Conduct – New York Penal Law Section 240.20

In New York, Disorderly Conduct occurs when a person intentionally or recklessly creates a risk of public inconvenience, annoyance or alarm. Disorderly Conduct can be committed several different ways (see statute below). Disorderly conduct is a violation (not a misdemeanor or felony). Disorderly conduct is a common charge in New York. However, it is not always properly charged.

The Disorderly Conduct statute reads as follows:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or

2. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or

4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

The NY Court of Appeals, New York’s highest court, has made it clear that evidence of actual or threatened public harm (inconvenience, annoyance, or alarm) is a necessary element of a valid disorderly conduct charge (People v. Baker, 20 N.Y.3d 354, 960 N.Y.S.2d 704, 984 N.E.2d 902 [2013]; People v. Weaver, 16 N.Y.3d 123, 919 N.Y.S.2d 99, 944 N.E.2d 634 [2011] ).

Thus, the state must be able to prove that the defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk thereof.

 

Share:
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. This website is Attorney Advertising. It does not form an attorney-client relationship. We are a debt relief agency and a law firm that helps people file for bankruptcy relief under the U.S. Bankruptcy Code – Title 11. Prior results do not guarantee a similar outcome. Proudly assisting residents of Long Island, Nassau county, Suffolk county, New York City, Queens, Brooklyn, Bronx, Staten Island, Manhattan