New York Law Review

Tag: vagueness

  • 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. Bakolas, 59 N.Y.2d 51 (1983): Constitutionality of “Unreasonable Noise” Statutes

    59 N.Y.2d 51 (1983)

    A statute prohibiting “unreasonable noise” with intent to cause public inconvenience, annoyance, or alarm is constitutional, both for vagueness and overbreadth, if it is construed to describe noise that a reasonable person would not tolerate under the circumstances and requires a public intent or risk.

    Summary

    Ioannis and Evangelos Bakolas were arrested and charged with violating a New York Penal Law prohibiting unreasonable noise. The Rochester City Court initially dismissed the charge, finding the term “unreasonable noise” unconstitutionally vague. The County Court reversed, reinstating the charge. The New York Court of Appeals affirmed the County Court’s decision, holding that the statute was not unconstitutionally vague or overbroad because the culpability requirement (intent to cause public inconvenience, annoyance, or alarm) narrowed the definition of “unreasonable noise” to that which a reasonable person would not tolerate and prevented inadvertently disturbing acts from being punished.

    Facts

    Ioannis Bakolas was stopped for a traffic violation and became abusive, yelling and threatening the officer. He refused to return to his vehicle and stood in the roadway, causing traffic to swerve. Evangelos Bakolas was observed yelling at the same officer while standing in the westbound traffic lane, refusing to desist or move from the roadway.

    Procedural History

    The Bakolases were charged in Rochester City Court with violating subdivisions of section 240.20 of the Penal Law. The City Court upheld some charges but ruled subdivision 2, regarding “unreasonable noise,” unconstitutionally vague and dismissed it. The County Court of Monroe County reversed, reinstating the subdivision 2 charges. The defendants appealed to the New York Court of Appeals by permission.

    Issue(s)

    Whether subdivision 2 of section 240.20 of the Penal Law, prohibiting “unreasonable noise,” is unconstitutionally vague or overbroad.

    Holding

    No, because the term “unreasonable noise” is capable of definition and the statute requires intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, thus narrowing its scope to conduct that is publicly offensive.

    Court’s Reasoning

    The court reasoned that the term “unreasonable noise” describes a noise of a type or volume that a reasonable person, under the circumstances, would not tolerate. The statute’s requirement of intent to cause or recklessly create a risk of public inconvenience, annoyance, or alarm narrows the definition, ensuring that no inadvertently disturbing act may be punished. The court distinguished this case from People v. New York Trap Rock Corp., noting that the ordinance in that case had a subjective standard (annoyance of “a person”) and was capable of ad hoc enforcement. The court stated, “the objective standard of public disturbance, the requirement of unreasonableness, and the narrowing effect of the fact that all of the other acts proscribed by the section are publicly offensive, permit, if they do not require, the construction above set forth.” The court also noted that similar statutes in other states have been upheld against vagueness arguments. Regarding the overbreadth argument, the court stated, “Although the facts recited in the information involve speech, protected speech may be restricted as to time, place and manner… The activity prohibited by section 240.20 is speech so unreasonably noisy as ‘to cause public inconvenience, annoyance or alarm’. Such a prohibition is not on its face impermissibly overbroad.”

  • People v. Harris, 36 N.Y.2d 36 (1974): Constitutionality of Election Law Provision on Affecting Election Results

    People v. Harris, 36 N.Y.2d 36 (1974)

    A statute prohibiting acts tending to affect election results is not unconstitutionally vague if it provides sufficient notice of the prohibited conduct to a person of ordinary intelligence.

    Summary

    The defendant, an attorney, was convicted of attempting to violate a section of the Election Law by offering money to a potential candidate to withdraw from a primary election. She challenged the statute’s constitutionality, arguing it was both vague and overbroad. The New York Court of Appeals upheld the conviction, finding that the statute was not unconstitutionally vague because a person of ordinary intelligence would understand that paying a candidate to withdraw constitutes a fraudulent act tending to affect the primary, and the statute wasn’t overly broad, therefore it was constitutional.

    Facts

    The defendant, affiliated with incumbent Democratic officeholders, contacted Thomas Patton, who intended to run in the Democratic primary for City Council. At a meeting, Patton indicated reservations about running and the defendant offered him jobs, which he declined. The defendant then offered Patton money to withdraw from the race. Patton agreed to accept $1,000, with $500 paid upfront and $500 after the primary election. The defendant’s secretary delivered an envelope containing $500 to Patton, which was photographed by witnesses.

    Procedural History

    The defendant was convicted in Nassau County Court of attempting to violate subdivision 5 of section 421 of the Election Law. The Appellate Term modified the judgment by deleting a 15-day jail sentence but affirmed the conviction. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Whether subdivision 5 of section 421 of the Election Law is unconstitutionally vague because it fails to provide a reasonable opportunity for a person of ordinary intelligence to understand what conduct is prohibited.
    2. Whether subdivision 5 of section 421 of the Election Law is void for overbreadth because it prohibits constitutionally protected conduct.

    Holding

    1. No, because the statute provides sufficient notice to a person of ordinary intelligence that offering money to a potential candidate to withdraw from a primary election constitutes a fraudulent act tending to affect the primary.
    2. No, because the statute is a reasonable restriction upon an individual for the public good and is not overly broad.

    Court’s Reasoning

    The court relied on established principles that statutes creating crimes must be definite in specifying prohibited conduct, affording a comprehensible guide to ordinary members of society. The court also noted the presumption of a statute’s constitutionality, which is only overcome when invalidity is demonstrated beyond a reasonable doubt.

    The Court stated that subdivision 5 of section 421 of the Election Law was enacted to prevent corrupt bargaining for public office and unfair primary election practices. While acknowledging the statute’s flexibility, the court found it readily apparent that the enactment is designed to outlaw any fraudulent or wrongful act tending to affect the result of a primary election. The court reasoned that “Fraudulent,’ the crucial word of subdivision 5 of section 421 of the Election Law obviously connotes the idea of a deliberate deception (to be committed upon the electorate) and a corrupt act to prevent a free and open election.” The court recognized the legislature’s difficulty in articulating every prohibited transaction due to the numerous methods of tampering with a primary election.

    The court emphasized that an individual of ordinary intelligence would understand that paying a prospective political candidate not to run in a primary election would constitute a fraudulent act. The fact that the defendant was an attorney further weakened her argument that she failed to appreciate that such conduct was forbidden. The court also declined to consider alleged errors in the trial court’s charge to the jury because the defense counsel failed to object during the trial.

  • People v. Smith, 26 N.Y.2d 331 (1970): Constitutionality of Loitering Laws Related to Drug Use

    People v. Smith, 26 N.Y.2d 331 (1970)

    A statute prohibiting loitering for the purpose of unlawfully using or possessing narcotic drugs is constitutional because it is a reasonable restriction on individual freedom for the public good and is not impermissibly vague.

    Summary

    The New York Court of Appeals upheld the constitutionality of a statute making it a misdemeanor to loiter in common areas of a building for the purpose of unlawfully using or possessing narcotic drugs. The defendant, found with narcotics paraphernalia and a liquid substance, argued the statute was unconstitutionally vague and lacked proper purpose. The court disagreed, finding that the statute clearly prohibited loitering with the intent to commit a crime (drug use/possession) and served a reasonable purpose in protecting the public from the dangers associated with drug use in public areas. The court distinguished this from statutes punishing mere loitering or status.

    Facts

    Patrolman Connelly saw Smith, known to be a narcotics addict, enter a building. The officer followed and found Smith and two others on a stair landing. Smith held a bottle cap containing a liquid, and another man possessed a hypodermic needle and eyedropper. A third man had empty glassine envelopes. Smith dropped the bottle cap, spilling the liquid, which was not recovered. Officer Connelly testified that bottle caps are commonly used as “cookers” for heroin.

    Procedural History

    Smith was arrested and charged with possession of narcotics instruments and violating the loitering statute. The charge of possession of narcotics instruments was dismissed. Smith was convicted under the loitering statute and sentenced to 60 days. The Appellate Term affirmed the conviction, and Smith appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the evidence was sufficient to prove beyond a reasonable doubt that Smith was loitering for the purpose of possessing or using a narcotic drug.
    2. Whether the loitering statute is unconstitutionally vague or lacks a proper purpose.

    Holding

    1. Yes, because the circumstances of the gathering, the possession of narcotics implements by one of defendant’s companions, and the expert testimony of the police officer support the inference that the defendant and his companions had gathered to take narcotic drugs.
    2. No, because the statute is sufficiently definite and bears a reasonable relation to the public good.

    Court’s Reasoning

    The court reasoned that the statute prohibits loitering for the purpose of committing a crime (unlawful drug use or possession), not mere loitering itself. The court found that the circumstances – Smith’s presence in a building known for drug activity, his possession of a “cooker,” and his companion’s possession of a needle and eyedropper – supported the inference that Smith was loitering for the purpose of using narcotics. The court emphasized that circumstantial evidence can be sufficient to prove guilt if the facts are inconsistent with innocence and exclude every reasonable hypothesis but guilt. The Court distinguished this case from *People v. Rizzo*, noting that Smith and his companions were much closer to actually using the drugs than the defendants in *Rizzo* were to completing the robbery. The Court also held that the statute was not unconstitutionally vague because it provides sufficient notice of what conduct is prohibited. The statute has a reasonable purpose: to protect the public from the dangers associated with drug use in public areas. The Court quoted *Matter of Van Berkel v. Power, 16 Y 2d 37, 40*, stating that there is a strong presumption that a statute duly enacted by the Legislature is constitutional, and the invalidity of the law must be demonstrated beyond a reasonable doubt. The court stated, “The statute makes it illegal to loiter about any ‘stairway, staircase, hall, roof, elevator, cellar, courtyard or any passageway of a building for the purpose of unlawfully using or possessing any narcotic drug’.”