NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A10128
SPONSOR: Rules (Weinstein)
 
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 crimi-
nalizes communications intended to harass, annoy, threaten, or alarm
another person. The Court of Appeals found this subdivision to be uncon-
stitutionally 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 "unconstitu-
tionally 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 other-
wise, 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 initi-
ated 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.
STATE OF NEW YORK
________________________________________________________________________
10128
IN ASSEMBLY
June 16, 2014
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Weinstein,
Lentol) -- (at request of the Governor) -- read once and referred to
the Committee on Codes
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:
1 Section 1. Section 240.30 of the penal law, as amended by chapter 510
2 of the laws of 2008, subdivision 4 as added and subdivisions 5 and 6 as
3 renumbered by section 4 of part D of chapter 491 of the laws of 2012, is
4 amended to read as follows:
5 § 240.30 Aggravated harassment in the second degree.
6 A person is guilty of aggravated harassment in the second degree
7 when[, with intent to harass, annoy, threaten or alarm another person,
8 he or she]:
9 1. [Either] With intent to harass another person, the actor either:
10 (a) communicates [with a person], anonymously or otherwise, by tele-
11 phone, by [telegraph,] computer or any other electronic means, or by
12 mail, or by transmitting or delivering any other form of [written]
13 communication, [in a manner likely to cause annoyance or alarm] a threat
14 to cause physical harm to, or unlawful harm to the property of, such
15 person, or a member of such person's same family or household as defined
16 in subdivision one of section 530.11 of the criminal procedure law, and
17 the actor knows or reasonably should know that such communication will
18 cause such person to reasonably fear harm to such person's physical
19 safety or property, or to the physical safety or property of a member of
20 such person's same family or household; or
21 (b) causes a communication to be initiated [by mechanical or electron-
22 ic means or otherwise with a person,] anonymously or otherwise, by tele-
23 phone, by [telegraph,] computer or any other electronic means, or by
24 mail, or by transmitting or delivering any other form of [written]
25 communication, [in a manner likely to cause annoyance or alarm] a threat
26 to cause physical harm to, or unlawful harm to the property of, such
27 person, a member of such person's same family or household as defined in
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12102-01-4
A. 10128 2
1 subdivision one of section 530.11 of the criminal procedure law, and the
2 actor knows or reasonably should know that such communication will cause
3 such person to reasonably fear harm to such person's physical safety or
4 property, or to the physical safety or property of a member of such
5 person's same family or household; or
6 2. [Makes] With intent to harass or threaten another person, he or she
7 makes a telephone call, whether or not a conversation ensues, with no
8 purpose of legitimate communication; or
9 3. [Strikes] With the intent to harass, annoy, threaten or alarm
10 another person, he or she strikes, shoves, kicks, or otherwise subjects
11 another person to physical contact, or attempts or threatens to do the
12 same because of a belief or perception regarding such person's race,
13 color, national origin, ancestry, gender, religion, religious practice,
14 age, disability or sexual orientation, regardless of whether the belief
15 or perception is correct; or
16 4. [Strikes] With the intent to harass, annoy, threaten or alarm
17 another person, he or she strikes, shoves, kicks or otherwise subjects
18 another person to physical contact thereby causing physical injury to
19 such person or to a family or household member of such person as defined
20 in section 530.11 of the criminal procedure law[.]; or
21 5. [Commits] He or she commits the crime of harassment in the first
22 degree and has previously been convicted of the crime of harassment in
23 the first degree as defined by section 240.25 of this article within the
24 preceding ten years.
25 [6. For the purposes of subdivision one of this section, "form of
26 written communication" shall include, but not be limited to, a recording
27 as defined in subdivision six of section 275.00 of this part.]
28 Aggravated harassment in the second degree is a class A misdemeanor.
29 § 2. Subdivision 12 of section 631 of the executive law, as amended by
30 chapter 534 of the laws of 2011, is amended to read as follows:
31 12. Notwithstanding the provisions of subdivisions one, two and three
32 of this section, an individual who was a victim of either the crime of
33 menacing in the second degree as defined in subdivision two or three of
34 section 120.14 of the penal law, menacing in the first degree as defined
35 in section 120.13 of the penal law, criminal obstruction of breathing or
36 blood circulation as defined in section 121.11 of the penal law, harass-
37 ment in the second degree as defined in subdivision two or three of
38 section 240.26 of the penal law, harassment in the first degree as
39 defined in section 240.25 of the penal law, aggravated harassment in the
40 second degree as defined in subdivision [four] five of section 240.30 of
41 the penal law, aggravated harassment in the first degree as defined in
42 subdivision two of section 240.31 of the penal law, criminal contempt in
43 the first degree as defined in paragraph (ii) or (iv) of subdivision (b)
44 or subdivision (c) of section 215.51 of the penal law, or stalking in
45 the fourth, third, second or first degree as defined in sections 120.45,
46 120.50, 120.55 and 120.60 of the penal law, respectively, who has not
47 been physically injured as a direct result of such crime shall only be
48 eligible for an award that includes loss of earning or support, the
49 unreimbursed cost of repair or replacement of essential personal proper-
50 ty that has been lost, damaged or destroyed as a direct result of such
51 crime, the unreimbursed cost for security devices to enhance the
52 personal protection of such victim, transportation expenses incurred for
53 necessary court expenses in connection with the prosecution of such
54 crime, the unreimbursed costs of counseling provided to such victim on
55 account of mental or emotional stress resulting from the incident in
A. 10128 3
1 which the crime occurred, reasonable relocation expenses, and for occu-
2 pational or job training.
3 § 3. This act shall take effect immediately.