New York Law Review

Tag: Aggravated Harassment

  • People v. Golb, 23 N.Y.3d 455 (2014): Defines ‘Injury’ and ‘Benefit’ in Criminal Impersonation

    People v. Golb, 23 N.Y.3d 455 (2014)

    The terms “injure” and “benefit” in New York’s criminal impersonation statute (Penal Law § 190.25[1]) are not limitless but include tangible pecuniary injury, interference with governmental operations, and harm to reputation; however, the statute prohibiting aggravated harassment via communication is unconstitutionally broad.

    Summary

    Raphael Golb conducted an internet campaign to discredit scholars who disagreed with his father’s theories on the Dead Sea Scrolls, using pseudonyms and impersonating others to send disparaging emails and blog posts. He was convicted of multiple counts, including identity theft, criminal impersonation, forgery, aggravated harassment, and unauthorized use of a computer. The New York Court of Appeals upheld some convictions (criminal impersonation and forgery) but vacated others (identity theft, aggravated harassment, and unauthorized computer use), clarifying the scope of the criminal impersonation and aggravated harassment statutes and defining the terms “injure” and “benefit”.

    Facts

    Norman Golb, defendant’s father, is a scholar of the Dead Sea Scrolls, holding a minority view. Raphael Golb, the defendant, engaged in a campaign to discredit scholars who supported the dominant theory, including Robert Cargill, Stephen Goranson, Lawrence Schiffman, Frank Cross, and Jonathan Seidel. Golb used pseudonyms and impersonated these scholars to send emails and publish blog posts that were critical of their work and promoted his father’s views. For example, he impersonated Schiffman, an NYU professor, and sent emails to Schiffman’s students and superiors admitting to plagiarism. He also created email accounts in the names of others to send disparaging messages.

    Procedural History

    A New York County grand jury indicted Golb on 51 counts. The jury convicted him on 30 counts. The Appellate Division modified the judgment, vacating one count of identity theft but otherwise affirming the convictions. Golb appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the terms “benefit” and “injure” in Penal Law § 190.25(1) (criminal impersonation) are unconstitutionally vague and overbroad, and whether reputational harm constitutes an “injury” under the statute.
    2. Whether Penal Law § 240.30(1)(a) (aggravated harassment) is unconstitutionally vague and overbroad.
    3. Whether the evidence was sufficient to support convictions for unauthorized use of a computer and identity theft.

    Holding

    1. Yes, the terms “injure” and “benefit” cannot be construed to apply to any injury or benefit, no matter how slight, but injury to reputation is within the “injury” contemplated by Penal Law § 190.25. However, the mere creation of email accounts does not constitute criminal impersonation.
    2. Yes, Penal Law § 240.30(1)(a) is unconstitutionally vague and overbroad because it criminalizes communications with the intent to annoy, which is not sufficiently limited.
    3. No, the evidence was insufficient to support the convictions for unauthorized use of a computer and identity theft because the prosecution failed to prove that Golb’s computer access was unauthorized or that he falsified business records.

    Court’s Reasoning

    The Court reasoned that while “injure” and “benefit” in the criminal impersonation statute cannot encompass every minor harm or advantage, they do extend to reputational harm. The Court stated, “Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property, and we believe the legislature intended that the scope of the statute be broad enough to capture acts intended to cause injury to reputation.” However, the mere creation of email accounts without use does not cause substantial harm.

    Regarding aggravated harassment, the Court found Penal Law § 240.30(1)(a) unconstitutional because it criminalizes communications intended to “annoy,” which is too broad and lacks necessary limitations on its scope, infringing on protected speech. The Court cited People v. Dietze, noting 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.”

    Finally, the Court determined that the prosecution failed to prove that Golb’s use of NYU computers was “unauthorized” as required by Penal Law § 156.05, given his alumni status and library access. Moreover, the Court found insufficient evidence that Golb falsified any NYU business records, a necessary element of the identity theft charge. The Court noted, “[I]f two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity”.

  • People v. Adams, 20 N.Y.3d 608 (2013): Disqualification of Prosecutor Due to Appearance of Impropriety

    People v. Adams, 20 N.Y.3d 608 (2013)

    A public prosecutor should be removed only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence; however, in rare situations, the appearance of impropriety itself is a ground for disqualification when the appearance is such as to discourage public confidence in government and the system of law.

    Summary

    Defendant was convicted of aggravated harassment for sending offensive text messages to a City Court Judge, his neighbor and ex-paramour. He argued the District Attorney should have been disqualified due to a conflict of interest because the prosecutor gave undue weight to the victim’s wishes, as she was a judge. The Court of Appeals reversed, holding that while no actual impropriety occurred, the appearance of impropriety was unacceptably great because the District Attorney’s office refused to offer a reduced charge because the complainant was a sitting judge who demanded that the matter go to trial, rather than because a trial was, in its own disinterested judgment, appropriate. This created the appearance that the prosecutor did not exercise pretrial prosecutorial discretion in an evenhanded manner.

    Facts

    Defendant sent vulgar text messages to the complainant, a Rochester City Court Judge, who was also his neighbor and former lover. He was charged with aggravated harassment. All Rochester City Court Judges recused themselves. The defense unsuccessfully sought a plea deal. The defense moved to disqualify the Monroe County District Attorney, arguing a conflict of interest and actual prejudice, alleging that the DA was giving undue weight to the wishes of the victim because of her position as judge. The District Attorney’s office denied the allegation, but did not specifically rebut the claim that it consistently offered to accept pleas to a reduced charge in comparable cases, or offer an example of any circumstance when it had refused to offer a plea to a violation or agree to dispose of the case by ACD in a comparable misdemeanor case.

    Procedural History

    Defendant was charged in Rochester City Court. The City Court denied the motion to disqualify the District Attorney, but assigned new defense counsel. Defendant renewed the motion in County Court, which was also denied. Defendant was convicted in City Court. The County Court affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the District Attorney’s office should have been disqualified from prosecuting the defendant because there was an appearance of impropriety due to the complainant’s position as a judge?

    Holding

    Yes, because the record provides an objective basis to question whether the prosecutor exercised pretrial prosecutorial discretion in an evenhanded manner, based on the merits of the case or other legitimate prosecutorial concerns, thus creating an appearance of impropriety.

    Court’s Reasoning

    The Court of Appeals acknowledged the general rule that a public prosecutor should be removed only to protect a defendant from actual prejudice or a substantial risk of an abuse of confidence, citing Matter of Schumer v Holtzman, 60 NY2d 46, 55 (1983). However, it recognized the rare exception where the appearance of impropriety is so significant that it discourages public confidence in the government and the system of law, citing People v Zimmer, 51 NY2d 390, 396 (1980).

    The Court found that while no actual impropriety occurred, there was an unacceptable appearance of impropriety. The District Attorney’s office appeared to refuse a reduced charge because the complainant was a sitting judge who wanted a trial, not based on the merits of the case. The Court emphasized that the charges were not unique and involved a common scenario in harassment cases. The original defense counsel’s affidavit stated that the District Attorney’s office took a much harder stance than usual in similar cases and that the District Attorney’s office seemed constrained in how they could handle this matter due to the position of the complainant.

    The Court found the District Attorney’s office’s response, consisting of conclusory denials without providing examples of comparable cases, failed to dispel the appearance of inappropriate disparate treatment. As the Court stated, “Defendant’s original counsel from the Public Defender’s office, who had represented defendants in cases involving this District Attorney’s office for more than a decade, averred that he had never before seen the office take such a hard-line position in a case involving comparable charges and a similar defendant.” Because of this failure to dispel the appearance of impropriety, the Court concluded that disqualification was required.

  • People v. Dupont, 96 N.Y.2d 569 (2001): Speech Critical of Government Action is Protected

    People v. Dupont, 96 N.Y.2d 569 (2001)

    Speech, even if crude or offensive, is protected when it occurs in the context of complaining about government actions, especially when directed to a forum established for such complaints.

    Summary

    Dupont left five messages on the Village of Ossining’s Parking Violations Bureau answering machine, complaining about tickets and village employees, using offensive language. She was convicted of aggravated harassment under Penal Law § 240.30(1). The New York Court of Appeals reversed, holding that while the messages were crude, they were made in the context of complaining about government actions, and therefore constituted protected speech. The court distinguished this case from prior cases involving harassing conduct, emphasizing that Dupont’s messages were related to government actions and directed to a complaint receiving system.

    Facts

    The Village of Ossining restricted overnight street parking to permit holders. Residents could leave messages on the Parking Violations Bureau’s answering machine to register guest vehicles. Dupont left five messages after hours, including complaints about parking tickets, criticisms of village employees, and offensive language. The messages mentioned license plate numbers and vehicles, along with invective and ill wishes towards the employees.

    Procedural History

    The People filed five informations charging Dupont with aggravated harassment in the second degree under Penal Law § 240.30(1). A jury convicted Dupont on four of the five counts. The Appellate Term affirmed the convictions. A Judge of the Court of Appeals granted Dupont leave to appeal.

    Issue(s)

    Whether the defendant’s messages, left on a government answering machine and containing complaints about government actions along with offensive language, constitute protected speech under the First Amendment, thus precluding a conviction for aggravated harassment under Penal Law § 240.30(1).

    Holding

    Yes, because the defendant’s messages, though crude and offensive, were made in the context of complaining about government actions on a telephone answering machine set up to receive public complaints, and therefore constitute protected speech.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Shack, where the conviction for telephone harassment was upheld because the defendant’s multiple calls constituted harassing conduct. Here, the court emphasized that Dupont’s messages, while offensive, were made in the context of complaining about government actions. The court noted that the answering machine was set up, among other purposes, to receive complaints from the public. The court held that Dupont’s messages did not fall within any of the classes of speech or conduct that could be permissibly proscribed. The court emphasized the importance of allowing citizens to voice concerns about government actions, even if the expression is crude or unpleasant. The court reasoned that punishing such speech would chill legitimate complaints and undermine the purpose of the complaint system. The court did not find any dissenting or concurring opinions.

  • People v. Shack, 86 N.Y.2d 529 (1995): Constitutionality of Aggravated Harassment Statute

    People v. Shack, 86 N.Y.2d 529 (1995)

    A statute prohibiting telephone calls made with the intent to harass and without any legitimate purpose of communication does not violate the constitutional right to free speech, is not unconstitutionally vague, and can be characterized as a continuing crime when assessing the specificity of charging instruments.

    Summary

    The New York Court of Appeals upheld the conviction of Julian Shack for aggravated harassment, finding Penal Law § 240.30(2) constitutional. The statute prohibits making telephone calls with the intent to harass and without a legitimate purpose. The Court found that the statute permissibly subordinates the caller’s free speech rights to the recipient’s right to be free from unwanted calls, is not substantially overbroad, and provides sufficient notice of the proscribed conduct. The Court also held that the charge against Shack, alleging a series of harassing calls over a six-month period, was sufficiently specific.

    Facts

    Julian Shack, who suffered from mental illness, began calling his cousin, Diane Buffalin, a psychologist, for advice regarding his condition and medication. Initially, Buffalin agreed to the calls as long as Shack remained in treatment and took his medication. However, Shack later stopped taking his medication, and Buffalin told him to stop calling. Shack responded by threatening her father. Despite Buffalin’s repeated requests, Shack continued to call her, sometimes multiple times a day. He left threatening messages, stating he would sell her number to a “pervert” and harass her family if she didn’t answer. Between December 12, 1990, and May 20, 1991, Shack made 185 calls to Buffalin’s residence.

    Procedural History

    Buffalin filed a criminal complaint against Shack. Shack was arrested, prosecuted, and convicted of aggravated harassment in the second degree in Queens County. He was sentenced to three years of probation. The Appellate Term affirmed his conviction, and Shack appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Penal Law § 240.30(2) violates the First Amendment and Article I, § 8 of the New York Constitution by infringing on freedom of expression.
    2. Whether Penal Law § 240.30(2) is unconstitutionally vague because the term “legitimate communication” is not precisely defined.
    3. Whether the accusatory instrument was defective for lack of specificity because it did not identify the particular dates of the harassing calls.

    Holding

    1. No, because the statute proscribes conduct (making telephone calls without a legitimate purpose) and expressly excludes constitutionally protected speech. Even if construed to proscribe speech, the statute permissibly subordinates the caller’s right to free speech to the recipient’s right to be free of unwanted telephone calls.
    2. No, because the statute provides sufficient notice of the proscribed conduct when measured by common understanding and practices. The specific intent element (“intent to harass, annoy, threaten, or alarm”) removes the possibility that a defendant could be unaware of his criminal conduct.
    3. No, because Penal Law § 240.30(2) can be characterized as a continuing crime, and the information adequately advised defendant of the conduct for which he was charged.

    Court’s Reasoning

    The Court reasoned that Penal Law § 240.30(2) does not facially prohibit speech; it prohibits conduct – making phone calls without legitimate communication. The statute is narrowly tailored to protect individuals from those who use the telephone for unjustifiable motives rather than communication. The court held that an individual has a substantial privacy interest in their telephone, analogous to a mailbox, and the statute permissibly subordinates a caller’s free speech rights to the recipient’s right to be free from unwanted calls. The court distinguished this statute from those imposing liability for “pure speech”.

    Regarding vagueness, the Court stated that the phrase “no purpose of legitimate communication” would be understood to mean the absence of expression of ideas or thoughts other than threats and intimidating utterances. The specific intent requirement further clarifies the proscribed conduct. The court emphasized that the very nature of the conduct requires a victim’s complaint, which provides an opportunity for investigation and consideration of the complainant’s veracity.

    Finally, the Court addressed the specificity of the charge, finding that Penal Law § 240.30(2) can be characterized as a “continuing crime” because the terms “harass” and “annoy” are easily susceptible of describing multiple acts over a period of time. The information adequately advised the defendant of the conduct he was charged with, allowing him to defend the charges, ensuring his trial was conducted accordingly, and protecting him from subsequent prosecution for the same conduct.

    The Court quoted Rowan v Post Off. Dept., 397 U.S. 728, 736-737 stating that “a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee”. This principle was extended to telephone communications, solidifying the recipient’s right to privacy.

  • People v. McGrath, 46 N.Y.2d 12 (1978): Admissibility of Consensual Eavesdropping Despite Employer Rules

    People v. McGrath, 46 N.Y.2d 12 (1978)

    It is not unlawful to eavesdrop on telephone conversations with the consent of one party, even if the consenting party is a government employee who may have acted contrary to their employer’s rules.

    Summary

    Defendant, a postmaster, was charged with aggravated harassment for making harassing phone calls to a co-employee. The co-employee, with the knowledge of other postal employees, recorded these conversations. The defendant moved to suppress these recordings, arguing they violated postal regulations. The trial court granted the motion, and the County Court affirmed. The New York Court of Appeals reversed, holding that consensual eavesdropping is permissible, irrespective of whether the consenting party violated their employer’s regulations. The court relied on existing penal law and the principle that evidence obtained in violation of internal agency rules is not necessarily inadmissible.

    Facts

    The defendant, McGrath, was the Postmaster of the Germantown Post Office. He made a series of telephone calls to a female co-employee both at the post office and at her home. These calls formed the basis of a charge of aggravated harassment under New York Penal Law § 240.30(1), alleging that McGrath intended to harass, annoy, threaten, or alarm the co-employee. The co-employee, with the knowledge and advice of fellow postal employees, recorded these telephone conversations.

    Procedural History

    McGrath was arraigned in Town Court. He moved to suppress the tape recordings of his phone calls. The Town Court granted the motion to suppress the recordings of calls completed at the post office, citing a violation of Postal Regulation 668.291. The County Court affirmed this decision. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether tape recordings of telephone conversations, made with the consent of one party but in potential violation of that party’s employer’s (Postal Service) regulations, are admissible in court.

    Holding

    No, because it is not unlawful to eavesdrop on telephone conversations with the consent of one of the parties, and the fact that the consenting party may have violated her employer’s rules does not render the evidence inadmissible.

    Court’s Reasoning

    The Court of Appeals grounded its decision in New York Penal Law § 250.00 and Criminal Procedure Law § 700.05(3), which permit eavesdropping with the consent of one party to the conversation. The court also cited Rathbun v. United States, 355 U.S. 107, to support the principle of permissible consensual eavesdropping. The court addressed the argument that the postal employee’s actions violated Postal Regulation 668.291, which prohibits employees from recording or intercepting communications without the consent of all parties involved. The court, citing United States v. Caceres, 440 U.S. 741, held that a violation of internal agency regulations does not automatically render evidence inadmissible. The Court emphasized that the key factor was consent from one party to the conversation, irrespective of any potential violation of internal employer rules. The Court stated: “It is not unlawful to eavesdrop on telephone conversations with the consent of one of the parties to the conversation (Penal Law, § 250.00; CPL 700.05, subd 3; Rathbun v United States, 355 US 107), nor is the tape recording evidence in this case to be excluded because the consenting party, who was a government employee, may have acted contrary to the rules of her employer (see United States v Caceres, 440 US 741).” There were no dissenting or concurring opinions noted.

  • People v. Van Vorce, 49 N.Y.2d 770 (1980): Limits on Harassment Statutes and Indirect Communication

    People v. Van Vorce, 49 N.Y.2d 770 (1980)

    A conviction for aggravated harassment requires direct communication to the complainant; indirect broadcasts, even if offensive, do not suffice to establish the necessary element of annoyance or alarm under the statute.

    Summary

    The New York Court of Appeals reversed a conviction for aggravated harassment, holding that statements made over a citizens’ band radio, not directly heard by the complainant, do not constitute aggravated harassment under Penal Law § 240.30. The court emphasized that the essence of harassment involves direct communication causing annoyance or alarm. Since the complainant did not hear the offensive broadcast directly, the element of direct communication was missing, precluding a conviction under the statute. This case highlights the importance of direct communication in establishing harassment and protects speech that, while potentially offensive, does not directly target and disturb the complainant.

    Facts

    The defendant made offensive statements over a citizens’ band radio. The complainant, the intended target of these statements, did not directly hear the broadcast. The defendant was subsequently charged and convicted of aggravated harassment under New York Penal Law § 240.30.

    Procedural History

    The County Court of Cortland County convicted the defendant. The New York Court of Appeals reversed the County Court’s order and dismissed the information, finding the conviction unsustainable under the harassment statute.

    Issue(s)

    Whether statements made over a citizens’ band radio, not directly heard by the complainant, constitute aggravated harassment under New York Penal Law § 240.30, which requires that the communication be directly targeted at the complainant and causes them annoyance or alarm.

    Holding

    No, because the crime of harassment necessitates direct communication to the complainant, causing annoyance, anxiety, or worry. Without such direct communication, a harassment conviction cannot be sustained, regardless of the offensive nature of the statements. The failure of the complainant to hear the broadcast directly precludes the imposition of a criminal sanction for harassment.

    Court’s Reasoning

    The court reasoned that the basis of the crime of harassment is conduct likely to lead to a breach of the peace, which necessitates annoyance, anxiety, or worry on the part of the complainant. The court stated, “Without direct communication to the complainant, a harassment conviction cannot be sustained.” The court emphasized that the crime of harassment, which punishes the exercise of speech, must be narrowly construed to avoid infringing on constitutionally protected speech. Chief Judge Cooke, in his concurrence, noted that while harassing statements can be made through electronic means, the absence of direct communication negates the element of harassment. The court distinguished between civil liabilities, which the defendant may have incurred, and criminal sanctions, which require a direct impact on the complainant. The key factor was that the complainant did not hear the broadcast, thereby failing to establish the requisite element of direct harassment. The decision underscores that the statute requires a direct nexus between the communication and the complainant’s experience of annoyance or alarm.