Tag: Part of NY's Aggravated Harassment in the Second Degree ruled unconstitutional

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.

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