senate Bill S7869

Signed By Governor
2013-2014 Legislative Session

Relates to the crime of aggravated harassment in the second degree

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Archive: Last Bill Status Via A10128 - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jul 23, 2014 signed chap.188
Jul 11, 2014 delivered to governor
Jun 20, 2014 returned to assembly
passed senate
3rd reading cal.1573
substituted for s7869
Jun 20, 2014 substituted by a10128
Jun 18, 2014 ordered to third reading cal.1573
Jun 16, 2014 referred to rules

Votes

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S7869 - Bill Details

See Assembly Version of this Bill:
A10128
Law Section:
Penal Law
Laws Affected:
Amd §240.30, Pen L; amd §631, Exec L

S7869 - Bill Texts

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

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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.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7869

                            I N  S E N A T E

                              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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12102-01-4

S. 7869                             2

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

S. 7869                             3

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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