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Aggravated Harassment: Annoying And Alarming Decision By The New York Court of Appeals


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People v Golb

2014 NY Slip Op 03426

Court of Appeals

Decided on May 13, 2014

The New York Court Of Appeals Says That We Can’t Possibly Know What Might Annoy Or Alarm Another Person And Therefore The Statute Making Annoying And Alarming Behavior Illegal Is Unconstitutional. 

 

Summary:  The New York Court of Appeals made several important holdings in this case.  First, the Court found that the statute Aggravated Harassment in the second degree Penal Law 240.30 was unconstitutional and void for vagueness.  The Court held that the elements of this statute: that one must “annoy” or “alarm” another person, were not clear since it is not clear or definitive what might annoy or alarm another person.

This case presented several issues:

Issue: 1. Whether the trial court erred when it refused to give a limited instruction on the statutory terms “injure” or “benefit” in its charge to the jury on criminal impersonation and whether the damages contemplated in the statue were broad enough to include injury to reputation.

Holding 1:  The trial court did not limit the statutory terms “benefit” or “injure” in its charge to the jury because as the Appellate Division held “the Court was under no obligation to limit the definitions of “injure” or “benefit”, terms used in the forgery and criminal impersonations statues, to tangible harms such as financial.   The Court found that “injury”, as defined in the statute, is a broad enough term to encompass injury to reputation.

Issue 2: Whether the statue “Aggravated Harassment in the second degree” is unconstitutionally vague and overboard.

Holding: The Statute of Aggravated Harassment in the second degree is unconstitutionally vague. Under the State and Federal Constitution “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” The statute’s vagueness does not clarify what semantics defendant used to demonstrate “communication in a manner likely to cause annoyance or alarm to another person.” The statue criminalizes, in broad strokes, any communication ‘in a manner likely to cause annoyance or alarm to another person’ and does not support a constitutional necessity.

Issue 3. Whether the defendant’s offense of falsifying interpretations of business records constitute identity theft in the second degree.

Holding: The Defendant did not commit identity theft in the second degree because the statute states ‘A person who commits identity theft in the second degree knowingly, and with intent to defraud, assumes the identity of another person by presenting himself or herself as that other person; or by acting as that other person or by using personal identifying identification of that person, and thereby, commits or attempts to commit a felony.’

Although defendant sent falsifying emails of an NYU business to NYU addresses, that does not constitute the creation or falsification of an NYU business record that is ‘kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity. Lastly, the people have not pointed to any proof that the defendant falsified any such records because there is insufficient evidence to support this.

Issue 4: Whether or not the defendant’s use of a computer involved in a crime constitutes unauthorized use of a computer.

Holding: The defendant is not guilty of unauthorized use of a computer. The term “without authorization” is defined as the ability to access a computer without permission. The defendant was an alumnus student who joined the “Friends of Bobst library program.” And had access to the NYU computers. The definitions and wording of the statue and the legislative history indicate that the statue is intended to reach a person who accesses a computer system without permission and the language does not appear to encompass defendant’s conduct.

Facts: The Dead Sea Scrolls are a collection of ancient religious writings. Norman Golb, a professor at the University of Chicago, and a scholar on the subject of the Scrolls was in a disagreement with many scholars and experts about who wrote the Scrolls. One view, known as the Qumran-Sectarian theory, or Sectarian theory, is that the Scrolls were writings of a Jewish sect, living in or near Qumran.

Defendant Raphael Golb, Professor Golb’s son, engaged in an Internet campaign to criticize other scholars because, in defendant’s opinion, the other scholars theories disagreed with that of his father’s.

Defendant Raphael Golb went on a series of Internet campaigns attacking the integrity and harming the reputation of other scholars to promote his fathers views of the Dead Sea Scrolls. Defendant created pseudonyms and impersonated real scholars. Defendant used fake username email addresses and sent emails to administrators, reporters, and published anonymous blogs to discredit and harm the reputation of the individuals who criticized his father.

Legal Analysis Issue 1: Penal Law §190.25 involving Criminal impersonation has traditionally involved monetary fraud or interference with government operations. However the trial court did not limit the reputation of “injury” or “benefit” in its scope. The Court Of Appeals concluded that the injury to reputation is within the “injury” contemplated under Penal law §190.25; that the statue is broad enough to capture acts intended to cause injury to reputation. Additionally, a person who impersonates someone with the intent to harm the reputation of another may be found guilty of this crime. Here, their was sufficient evidence to support the jury’s findings that the defendants emails were more than a prank and were intended to cause embarrassment or discomfiture and that he intended to do real harm. Many people value they reputations at least as much as their own property.

Legal Analysis Issue 2: Aggravated Harassment in the second degree under Penal law 240.30.1 states “ 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.” In People v Dietz 75 NY2d 47 (1989), the court dealt with a similar harassment statute, former penal law 240.25, which prohibited the use of abusive or obscene language with the intent to harass, annoy or alarm another person.

In Dietze, it is demonstrated under both State and Federal Constitutions “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” This statute criminalizes, in broad strokes, any communication that has the intent to annoy which gives no “fair meaning of this statute’s and unqualified terms supports or even suggests the constitutionally necessary limitations on its scope.” It is not clear what is meant by communication ‘ in a manner likely to cause annoyance or alarm’ to another person and the statute is therefore unconstitutionally vague.

Legal Analysis Issue 3: The Court of Appeals found that defendant did not falsify the interpretations of business records and that it did not constitute identity theft.  The attempted felony at issue is first degree falsifying of the business records of NYU. That crime is committed when a person “commits the crime of falsifying business records in the second degree, and when his intent to defraud included an intent to commit another crime or to aid or conceal the commission, thereof under Penal law § 175.00 2, 175.10.

The statute for identity theft in the second degree requires that “when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that person or by using personal identifying information of that other person, and thereby, commits or attempts to commit a felony” Penal law§ 190.79 3.

Defendant sent emails manufacturing a subtle admission of plagiarism in a different name to an NYU address. This does not constitute the ‘creation or falsification of an NYU business record that is kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity.’ The people have not pointed to any proof that defendant falsified such records, which is insufficient as evidence.

Legal Analysis Issue 4: The defendant’s use of a computer was not found to be an unauthorized use of a computer. Under Penal law § 156.05, “A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization.” The term “without authorization” is defined as ‘ to access a computer without the permission or consent of the owner, Penal law § 156.00 8.

Defendant had permission to access the NYU computers because he was an alumnus who joined the “Friends of Bobst Library Program.” The definition and wording of the statute and the legislative history indicate that the statue is intended to reach a person who accesses a computer without permission i.e., a hacker, and the language does not appear to involve defendant.