New York Criminal Attorney Blog

Aggravated Harassment in the Second Degree defined under New York Penal Law 240.30, makes it a class "A" misdemeanor, punishable by up to one year in jail to basically cause a communication to occur with another person by mail or telephone or other electronic means in a manner likely to cause to alarm or annoyance if that communication is made with the intent to annoy, harass, alarm or threaten a person. When the New York State Legislature talks about communication what they are really talking about is speech. New York State is attempting to regulate what you say and that is problematic in light of our Constitution's First Amendment protection of speech; even unpopular or disagreeable speech.

In a decision issued earlier this week and has huge implications for New York criminal defense lawyers, Judge Valerie Alexander ruled that Penal Law sections 240.30 (1) and (2) were unconstitutional in that they were vague and over broad. She ruled that this Aggravated Harassment statute is analogous to one found unconstitutional by New York's highest Court in 1989 and that Federal decisions have agreed that the statute is unconstitutional.

Penal Law section 240.30 clearly attempts to punish particular speech. The issue of what speech may be regulated by law in light of the Constitutional protections associated with speech has been the subject of numerous United States Supreme Court decisions. While not an absolute right (for example in might be permissible top punish someone for yelling fire in a crowded theater), freedom of speech is a fundamental right worthy of substantial protection. The New York State legislature made no attempt to distinguish in the statute between protected speech and unprotected speech or define a line that may not be crossed. Rather New York attempted to punish all speech that was annoying or alarming. Clearly, that is unconstitutional. The judge indicated that a criminal prohibition against communicating in an alarming or annoying way is by its nature facially unconstitutional.

The facts of the case that was dismissed by Judge Alexander involved allegedly harassing messages left on the voice mail of an Assistant District Attorney in Nassau County. The allegations were that Nicolas Pierre-Louis left a series of messages in a loud voice in which he made statements such as "I'm coming at you with fury"; "piece of shit faggot fucking cock sucking cock"; and "I will rain hell on your office and make sure heads roll". The calls included other loud, profane and threatening statements that the Judge agreed were not among the type of statements found illegal in prior cases.

The bottom line is that the Aggravated Harassment statute that was thrown out here constitutes a very popular and over used charge by prosecutors. This sensible ruling has the potential to impact thousands of cases that are pending and an uncountable number of future cases. Anyone who has an Aggravated Harassment charge currently pending or gets arrested for this charge should immediately notify their attorney about this case or contact this office to discuss your constitutionally protected rights.

If you or a loved one has been arrested for Aggravated Harassment in the Second Degree, contact one of the experienced criminal defense lawyers at this office to discuss the facts of the case and your options. Do not plead guilty merely because it is the easiest path to take. The fact is that you may not be guilty of any offense.

Capping an unbelievable three weeks, New York Criminal Defense Firm, Tilem & Campbell plea bargained three cases with truly remarkable results. While, Tilem & Campbell has successfully gone to trial and won many criminal cases, it does not always take a trial to get a successful outcome in a criminal case. With experience and expertise the lawyers at Tilem & Campbell are often able to negotiate truly spectacular deals for their clients. Having two former prosecutors obviously helps.

In the first case resolved in late June, our client was charged with shooting at an individual with an illegal handgun. The client was charged with felony Reckless Endangerment and Criminal Possession of a Weapon in the Second Degree, both felonies. On the Weapons charge the client faced a prison sentence of 15 years in prison with a mandatory minimum of 3 ½ years in prison. On the Reckless Endangerment in the first degree charge the client faced up to 7 years in prison. After months of litigation and negotiation, the client pled guilty at the end of June to a class “B” misdemeanor with no jail, no probation and only a conditional discharge. The “B” misdemeanor the client pled guilty to was an Attempt to Commit the Crime of Criminal Possession of a Weapon in the Fourth Degree.

In the second case resolved just two days ago, the client was charged with the felony of possessing 4 illegal guns in Rennselaer County, New York. In New York, possession of 3 or more illegal guns elevates the crime to a class “D” felony, punishable by up to 7 years in prison. The firm was able to negotiate a plea bargain for this client in which he pled guilty to a “B” misdemeanor and again received no jail, no fine, no probation but just a conditional discharge. In addition, the Judge signed a “Certificate of Relief From Civil Disabilities” which is a certificate that relieves the holder of all bars to employment that may be imposed by law as a result of a criminal conviction.

Yesterday, in the third case, it was our client’s second DWI and he refused to take the breathalyzer test. In addition to the DWI tickets he was issued a total of 42 points in tickets for traffic offenses including Reckless Driving, Speeding, Going the Wrong Way on a One Way Street, Passing a Red Light and many more. In addition to the revocation for a conviction for DWI and the Refusal, the client faced a loss of his driving privileges for having more than 10 points and the Driver Responsibility Assessment for 42 points is $3000 plus fines and surcharges. Yesterday he pled guilty to Driving While Ability Impaired by alcohol which is a traffic infraction not a crime like Driving While Intoxicated. All the other moving violations were dismissed and he pled guilty to one 2 point ticket. That’s right 42 points were reduced to only 2 points. The fines and surcharges which could have been thousands of dollars only totaled $745.

While each case is different and results may vary from County to County, Court to Court and based upon the very specific facts of each individual case. These results demonstrate that great legal representation can help you achieve an exceptional outcome in your criminal case.

New York Traffic Ticket lawyers are monitoring New York's recently enacted Texting While Driving Law which was made tougher this week after a new law signed by governor Cuomo went into effect. The new law makes Texting While Driving a primary enforcement statute. This means that a police officer may stop a vehicle because the driver is observed violating this statute. In the past, a police officer could only stop a vehicle for a reason other than texting while driving and then issue the summons for Texting While Driving if there was probable cause to believe that the operator also committed an offense under New York Vehicle & Traffic Law (VTL) 1225-d. .

While New York VTL 1225-d is usually referred to as New York's Texting While Driving Statute it punishes a broad range of conduct that does not involve texting or even using your cell phone. For example the statute is entitled "Use of Portable Electronic Devices" and defines portable electronic devices as any: hand-held mobile telephone (cell phones), PDA (personal digital assistant), handheld device with mobile data access (such as a IPAD, IPOD, or Tablet or GPS), laptop computer, broadband personal communication device, pager, two-way messaging device, electronic game, or portable computing device. This list seems like it would encompass pretty much any electronic device you can conceive of including devices that are commonly used in cars such as I-Pods and navigation devices.

In addition, if you simply are holding the device while viewing it that is considered viewing and there is a presumption built into the statute if you hold the device while driving in a "conspicuous manner" you are presumed to be "using" the device. This all means that simply holding any electronic device in your hand while driving can cause you to receive a three point ticket punishable by a fine of up to $150 plus a surcharge of a minimum of $80 for a total of $230. Plus there of course exists the possibility of insurance surcharges or increases and if you accumulate 6 points, additional fees under the Driver Responsibility Assessment.

The only two exemptions in the statute are for communicating with emergency service personnel in an emergency and of course for police, fire and ambulance personnel in the performance of their duties.

The bottom line of this new law is that the statute is broad and written to punish a wide range of conduct of which the public has not been informed. I predict that law enforcement will issue large numbers of tickets under this section and the state as a result will make a large amount of money. While I see signs all over New York warning us not to Text While Driving, I have heard or seen nothing about the broad range of conduct encompassed in this law.

If you, a friend or family member receives a ticket under VTL 1225-d please contact this office for a free telephone consultation.

The reported collapse of the Dominique Strauss Kahn rape case highlights an important principle in criminal procedure that few prosecutors take seriously but that has experienced criminal defense lawyers tearing their hair out. Prosecutors MUST turn over evidence that the defendant is not the perpetrator of the crime to the defense. This disclosure must be done early and is a continuing obligation on the part of the prosecutor's office. The material that must be turned over is commonly referred to as Brady Material and is generally counter-intuitive in our adversarial system of justice.

Prosecutors often do not take this obligation seriously even though cases have been dismissed based upon the failure to turn over such material and prosecutors may be personally sanctioned for their failure to turn over Brady Material. For example, in Matter of Stuart, 22 A.D.3d 131 (2nd Dept. 2003) a prosecutor was suspended for deceiving the Court about the existence of Brady material and the attorney Disciplinary Rules quite specifically require prosecutors to make such disclosures. See DR 7-103.

The term Brady Material is quite broad and requires disclosure of a wide array of information. This information can include:
a. evidence which bears upon the guilt or innocence of the defendant but also the severity of any sentence that may be imposed;
b. records of previous arrest of the victim or witness or any history of immoral, vicious or unethical conduct by a witness;
c. any false statements made by a witness to law enforcement or to the grand jury;
d. any evidence, testimony, transcript, statement or information indicating that any prospective prosecution witness on any occasion gave false, misleading or contradictory information regarding the charge;
e. any mis-identification of the defendant of any information demonstrating an ability of a witness to identify the defendant as the perpetrator of the crime;
f. any history of mental disease or defect, emotional disturbance, or substance abuse of any potential witness; and
g. any malfunction of any testing equipment or any differing results in any scientific testing.

While this list is not exhaustive it gives a general idea of the types of exculpatory information which is required to be turned over to the defense. This requirement in New York not only is codified in the New York Criminal Procedure Law but also has its derivation from the United States Constitution. It is a basic principle of our system of justice that Brady material be turned over promptly by the District Attorney's Offices. While the Manhattan District Attorney's Office should be applauded for the prompt disclosure in the Dominique Strauss Kahn case more prosecutors have to receive training in complying with this basic principle and criminal defense attorneys need to hold prosecutors' feet to the fire in this regard.

If you or a loved one is involved in a criminal case where the prosecutor has withheld exculpatory material you should immediately bring this information to your attorney's attention. If you have any questions about this important right please contact this office.