Bill S7869-2013

Relates to the crime of aggravated harassment in the second degree

Relates to the crime of aggravated harassment in the second degree; includes electronic means; also includes family/household members.

Details

Actions

  • Jun 20, 2014: SUBSTITUTED BY A10128
  • Jun 18, 2014: ORDERED TO THIRD READING CAL.1573
  • Jun 16, 2014: REFERRED TO RULES

Meetings

Votes

VOTE: COMMITTEE VOTE: - Rules - Jun 18, 2014
Ayes (17): Skelos, Libous, Bonacic, Carlucci, Farley, Flanagan, Hannon, Larkin, LaValle, Marcellino, Maziarz, Nozzolio, Seward, Valesky, Little, Stewart-Cousins, Dilan
Ayes W/R (2): Breslin, Parker
Nays (5): Hassell-Thompson, Krueger, Montgomery, Perkins, Gianaris
Excused (1): Espaillat

Memo

BILL NUMBER:S7869

TITLE OF BILL: An act to amend the penal law and the executive law, in relation to aggravated harassment in the second degree

Purpose: Recently, in the case of People v. Golb, the New York State Court of Appeals struck down as unconstitutional subsection 1 of the Aggravated Harassment in the Second Degree statute (Penal Law 240.30(1)).{1} This bill would cure the constitutional defect of the original statute by amending Penal Law § 240.30 thereby reviving that law. This bill would also amend the Executive Law as it relates to the physical injury requirement exceptions for award eligibility from the Office of Victims Services ("OVS").

Summary of Provisions:

Section 1 would amend Penal Law § 240.30 to address the constitutional issues raised in the Golb decision by expressly addressing harassing communications that threaten to cause physical harm or harm to property of another which a defendant knows or reasonably should know will cause a victim to fear such harm.

Section 2 would amend Executive Law § 631(12) to make a conforming change in light of amendments made to the law in 2012.

Section 3 would provide for an immediate effective date.

Existing Law: Currently, subdivision 1 of Penal Law § 240.30 criminalizes communications intended to harass, annoy, threaten, or alarm another person. The Court of Appeals found this subdivision to be unconstitutionally vague and overbroad under the First Amendment.

Currently, subdivision 12 of Executive Law § 631 provides exceptions to the physical injury requirement related to the OVS award eligibility for victims of certain crimes. Penal Law § 240.30(4) is listed as one of these exceptions. A 2012 amendment renumbered the subsections in § 240.30, however, there was no corresponding amendment to the Executive Law.

Justification: In People v. Golb, the Court of Appeals struck down as unconstitutional subsection 1 of Aggravated Harassment in the Second Degree (Penal Law § 240.30(1)). The Court found the statute "unconstitutionally vague and overbroad" under the First Amendments of both State and federal constitutions, because it "criminalizes, in broad strokes, any communication that has the intent to annoy." This bill would cure that defect.

There are approximately 7,600 open matters statewide where Penal Law 230.40(1) is the most serious charge; it is a crime that impacts many people. Moreover, an alleged violation of this law is an important tool for domestic violence victims, where it forms the predicate for issuing an order of protection by a court to protect such victims.

Executive Law § 631(12) provides compensation to victims, who are often victims of domestic violence-related crimes, who suffer harm that is not "physical injury" but nonetheless are injured. In 2012 the Penal Law was amended without making certain technical, conforming

changes to the Executive Law to ensure the continued viability of this compensation. This legislation would correct that omission.

Legislative History: This is a new bill.

Budget Implications: None.

Effective Date: This bill would take effect immediately.

{1}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: 1. Either (a) 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; or (b) causes 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.


Text

STATE OF NEW YORK ________________________________________________________________________ 7869 IN SENATE June 16, 2014 ___________
Introduced by Sen. NOZZOLIO -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the penal law and the executive law, in relation to aggravated harassment in the second degree THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 240.30 of the penal law, as amended by chapter 510 of the laws of 2008, subdivision 4 as added and subdivisions 5 and 6 as renumbered by section 4 of part D of chapter 491 of the laws of 2012, is amended to read as follows: S 240.30 Aggravated harassment in the second degree. 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]: 1. [Either] WITH INTENT TO HARASS ANOTHER PERSON, THE ACTOR EITHER: (a) communicates [with a person], anonymously or otherwise, by tele- phone, by [telegraph,] COMPUTER or ANY OTHER ELECTRONIC MEANS, OR by mail, or by transmitting or delivering any other form of [written] communication, [in a manner likely to cause annoyance or alarm] A THREAT TO CAUSE PHYSICAL HARM TO, OR UNLAWFUL HARM TO THE PROPERTY OF, SUCH PERSON, OR A MEMBER OF SUCH PERSON'S SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW, AND THE ACTOR KNOWS OR REASONABLY SHOULD KNOW THAT SUCH COMMUNICATION WILL CAUSE SUCH PERSON TO REASONABLY FEAR HARM TO SUCH PERSON'S PHYSICAL SAFETY OR PROPERTY, OR TO THE PHYSICAL SAFETY OR PROPERTY OF A MEMBER OF SUCH PERSON'S SAME FAMILY OR HOUSEHOLD; or (b) causes a communication to be initiated [by mechanical or electron- ic means or otherwise with a person,] anonymously or otherwise, by tele- phone, by [telegraph,] COMPUTER or ANY OTHER ELECTRONIC MEANS, OR by mail, or by transmitting or delivering any other form of [written] communication, [in a manner likely to cause annoyance or alarm] A THREAT TO CAUSE PHYSICAL HARM TO, OR UNLAWFUL HARM TO THE PROPERTY OF, SUCH PERSON, A MEMBER OF SUCH PERSON'S SAME FAMILY OR HOUSEHOLD AS DEFINED IN
SUBDIVISION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW, AND THE ACTOR KNOWS OR REASONABLY SHOULD KNOW THAT SUCH COMMUNICATION WILL CAUSE SUCH PERSON TO REASONABLY FEAR HARM TO SUCH PERSON'S PHYSICAL SAFETY OR PROPERTY, OR TO THE PHYSICAL SAFETY OR PROPERTY OF A MEMBER OF SUCH PERSON'S SAME FAMILY OR HOUSEHOLD; or 2. [Makes] WITH INTENT TO HARASS OR THREATEN ANOTHER PERSON, HE OR SHE MAKES a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or 3. [Strikes] WITH THE INTENT TO HARASS, ANNOY, THREATEN OR ALARM ANOTHER PERSON, HE OR SHE STRIKES, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or 4. [Strikes] WITH THE INTENT TO HARASS, ANNOY, THREATEN OR ALARM ANOTHER PERSON, HE OR SHE STRIKES, shoves, kicks or otherwise subjects another person to physical contact thereby causing physical injury to such person or to a family or household member of such person as defined in section 530.11 of the criminal procedure law[.]; OR 5. [Commits] HE OR SHE COMMITS the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years. [6. For the purposes of subdivision one of this section, "form of written communication" shall include, but not be limited to, a recording as defined in subdivision six of section 275.00 of this part.] Aggravated harassment in the second degree is a class A misdemeanor. S 2. Subdivision 12 of section 631 of the executive law, as amended by chapter 534 of the laws of 2011, is amended to read as follows: 12. Notwithstanding the provisions of subdivisions one, two and three of this section, an individual who was a victim of either the crime of menacing in the second degree as defined in subdivision two or three of section 120.14 of the penal law, menacing in the first degree as defined in section 120.13 of the penal law, criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, harass- ment in the second degree as defined in subdivision two or three of section 240.26 of the penal law, harassment in the first degree as defined in section 240.25 of the penal law, aggravated harassment in the second degree as defined in subdivision [four] FIVE of section 240.30 of the penal law, aggravated harassment in the first degree as defined in subdivision two of section 240.31 of the penal law, criminal contempt in the first degree as defined in paragraph (ii) or (iv) of subdivision (b) or subdivision (c) of section 215.51 of the penal law, or stalking in the fourth, third, second or first degree as defined in sections 120.45, 120.50, 120.55 and 120.60 of the penal law, respectively, who has not been physically injured as a direct result of such crime shall only be eligible for an award that includes loss of earning or support, the unreimbursed cost of repair or replacement of essential personal proper- ty that has been lost, damaged or destroyed as a direct result of such crime, the unreimbursed cost for security devices to enhance the personal protection of such victim, transportation expenses incurred for necessary court expenses in connection with the prosecution of such crime, the unreimbursed costs of counseling provided to such victim on account of mental or emotional stress resulting from the incident in
which the crime occurred, reasonable relocation expenses, and for occu- pational or job training. S 3. This act shall take effect immediately.

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