New York’s Aggravated Harassment Law Is Found To Be Unconstitutional

By Michael Joseph on May 17, 2014

Our Westchester criminal defense lawyers continue to keep up to date on the recent developments on criminal law in the State of New York. A recent decision from the New York Court of Appeals has found New York’s criminal law prohibiting aggravated harassment to be unconstitutionally vague. One of the oldest and most basic principles of criminal and penal law is that before a person loses their liberty, they must have fair notice of what conduct is being prohibited. This principal is the underlying principal which underlies the constitutional clause which prohibits ex post facto prosecutions.

New York’s Penal Law 240.30(1)(a) states that 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 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. This statute has been widely applied to everything from spouses and family members who send threatening or annoying emails or texts, to prank calls to phone calls among business partners which gets heated where profanity is used.

The New York Court of Appeals has found that this statute is unconstitutionally vague because it criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment which the Court of Appeals found to be unconstitutional in People v. Dietze, there is no fair reading of this statute’s unqualified terms supports or even suggests the constitutionally necessary limitations on its scope. In other words, the law is unconstitutionally vague because it is not clear what is meant by communication in a manner likely to cause annoyance or alarm to another person.

For anyone who has been convicted of aggravated harassment, this new decision provides an opportunity for our New York City and Queens criminal defense lawyers to move to vacate the conviction. This decision also has further implications because it is likely that section B is also likely unconstitutional because it has the same problematic language that the Court found to be vague in section 1. More specifically, section b prohibits causing 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. Subsection two of the aggravated harassment law, although has not yet been analyzed by the Courts is also vague and may be subject to an attack of unconstitutionality. Subsection two prohibits making a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication. While this has generally been applied to crank calls, such as hanging up, it has also been applied where people have argued that the call was not made for a legitimate purpose. The question of course is what is a legitimate communication and more specifically, what communication lacks any legitimacy, such that it can be criminalized.

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