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SECOND DEGREE AGGRAVATED HARASSMENT – SPEECH HAS CONSTITUTIONAL PROTECTION

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.