Assemblyman Joseph Lentol
Assemblyman Joseph Lentol (Newscom/Bryan Smith/ZUMAPRESS.com)

ALBANY – State legislators and prosecutors are rushing to restore part of the state’s criminal harassment statute that was frequently used in domestic violence cases before the Court of Appeals declared it unconstitutional this month.

Assemblyman Joseph Lentol, a Brooklyn Democrat who chairs the Assembly’s Codes Committee, said his office is working with his committee’s counterpart in the Senate, Michael Nozzolio, a Seneca Falls Republican, to rewrite the second-degree aggravated harassment statute.

“We are currently working with and awaiting input from domestic violence prosecutors across the state on how to legislatively address the issues that have arisen from this case,” Nozzolio said in a statement.

However, Lentol said he believes resuscitating the provision will be difficult to the extent that the law tries to “infer intent” on the perpetrator.

“I think it is going to be a problem,” he said in an interview. “I hope that we can come up with some type of solution, but it is very hard to figure out how we are going to fix that.”

Both committee chairmen acknowledged that they are trying to beat the clock, with the Legislature scheduled to conclude its regular 2014 session on or about June 19. But Lentol said lawmakers still have enough time to address the issue.

On May 13, the Court of Appeals declared the statute, Penal Law §240.30(1)(a), unconstitutionally vague and overbroad. The law had made it a misdemeanor to “harass, annoy, threaten or alarm” another person verbally or in writing in a manner “likely to cause annoyance or harm.”

Judge Sheila Abdus-Salaam wrote for the court that the statute failed to properly define what causing “annoyance or alarm means” or specifically what behaviors the law proscribed (NYLJ, May 14).

The ruling in People v. Golb, 2014 NY Slip Op 03426, concerned emails and other communications made by an academic to scholars he believed were not giving proper respect to his father’s theory about the origins of the Dead Sea Scrolls.

Manhattan District Attorney Cyrus Vance Jr., said the real significance of the ruling was not in the prosecution of Raphael Golb, but rather its effect on domestic violence cases. The statute was often used as a basis to obtain orders of protection against abusive partners as well as in criminal prosecutions.

Vance is working with other district attorneys to “plug the gap” in the aggravated harassment statute in the wake of Golb, said his spokeswoman, Joan Vollero.

“District Attorney Vance understands that the difference between an order of protection and none may be the difference between life and death,” she said. “We plan to work with our partners in the state Legislature and in the [anti-domestic violence] advocate community to get this passed before the end of the legislative session.”

The president of the state District Attorney’s Association, Nassau County’s Kathleen Rice, said preventing harassment is a top priority for the group, and her organization “will work with the Legislature to craft a new law that will help protect victims by filling the statutory gap left by the court’s decision.”

Gov. Andrew Cuomo’s office did not respond to requests for comment, but does not typically discuss pending legislation the governor himself did not propose.

Statewide, there were 7,635 arrests in 2013 for which Penal Law §240.30(1) was the top count, according to the state Division of Criminal Justice Services. The number was probably higher because the division does not keep statistics of when second-degree aggravated harassment was included as a lesser count in an arrest where the top charge was more serious.

Victims ‘at Risk’

Advocates for domestic violence victims said the Golb ruling was especially disappointing because of how frequently the statute is invoked. Amy Schwartz, a senior staff attorney with the Empire Justice Center in Rochester, said the second-degree aggravated harassment charge was “one of the more commonly enumerated family offenses” by those seeking protective orders under the Family Court Act.

“This certainly puts some victims of domestic violence who don’t have another statute to cite at risk of receiving no order of protection for conduct that was criminalized just two weeks ago,” she said in an interview.

However, Schwartz said the kind of verbally annoying or threatening behavior that has come to be regarded as aggravated harassment could possibly be charged under alternative statutes, namely second-degree harassment or fourth-degree stalking.

Schenectady County District Attorney Robert Carney said he hoped the statute could be reworked to pass constitutional muster. But he said the task could be tricky, especially since the Court of Appeals provided little guidance about how the statute could be rewritten to overcome the judges’ objections. He asked, for instance, whether certain Internet uses should be included in a new statute.

“We have a proliferation of threats being delivered or alarm being caused by things being put out over social media, nude pictures or sex tapes that were intended to be private,” he said. “Certainly, it could be argued that those cause alarm.”

Carney said that while many communications can be construed as threatening—promising to harm a person’s property or pets, for example—other conduct that would fall under an aggravated harassment statute may not be.

“Sometimes, it is really in the ear of the recipient, and it also can raise speech implications,” he said.

Amy Barasch, a professor at the State University of New York at Albany and the former head of the state Office for the Prevention of Domestic Violence, said the statute’s invalidation highlights how the pathology of domestic abuse often doesn’t lend itself to easy definitions in the penal code.

“It is about context,” said Barasch, an attorney who also represents domestic violence victims. “Some of the actions are pretty straightforward, such as when someone commits an assault. But when you are talking about intimacy and violence, when those behaviors are in the context of a controlling and threatening relationship, the penal code has a hard time identifying them and the actual threat they are.”

Barasch said research points to a close correlation between stalking and serious violence against partners but added that “each incident of stalking on its face may seem relatively minor.”

This month’s ruling in Golb was not the first time the Court of Appeals objected to the scope of an aggravated harassment statute.

In a 1989 decision, People v. Dietze, 75 NY2d 47, the court struck down a provision which prohibited the use of abusive or obscene language with the intent to harass, annoy or alarm another person. The 1989 case, which involved a woman convicted of aggravated harassment for calling another woman a “bitch” in public, led the court to rule that the statute’s criminalization of “abusive or obscene” language was imprecise and violated free speech rights under the federal and state constitutions.

Golb’s attorney, Ronald Kuby, said the Dietze ruling provides the Legislature all the guidance it needs to restore an aggravated harassment statute. He said Dietze holds threats that are “unequivocal and in some way convey a sense of immediacy” are not entitled to First Amendment protection.

“I am not unsympathetic to the notion that [the invalidated statute] is a useful weapon” in prosecuting domestic violence, Kuby said. “There are many things that would be useful in fighting crime if that pesky Constitution didn’t get in the way.”