Harassment Primer: NY Law Is Unconstitutional

22 Jun

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or an attorney. For specific technical or legal advice on the information provided and related topics, please contact an attorney.

New York criminal law attorney Scott J. Limmer writes “In most prosecutions for aggravated harassment, there are hidden agendas and the charges stem from exaggerations or overblown accounts of what actually happened.”

First Amendment Scholar David L. Hudson Jr. describes a case in which  a man who left profane telephone messages with an assistant district attorney in Nassau County, N.Y.,  and has had his aggravated harassment charges dismissed by a New York court. The judge reasoned that the law was unconstitutional on First Amendment grounds.

Judge Valerie Alexander of the District Court of New York, 1st District, NassauCounty, agreed in her July 25 decision People v. Louis. “A criminal prohibition on communicating in an annoying or alarming way is facially unconstitutional,” she wrote.

“The vagueness and overbreadth of this statute is readily apparent,” she said. “It cries out to be reworked, and sharply limited, to those areas where speech should be circumscribed.” Judge  Alexander said the law was not written with nearly enough precision to accord with basic free-speech principles.

Scott J. Kreppein, a constitutional rights attorney, provides additional insight into the controversial New York law on harassment, and writes: “The laws criminalizing “offenses to public order,” (i.e. the “disturbing the peace” family of crimes such as harassment and loitering), need to be carefully drafted to avoid constitutional issues.  Frequently, the phrase “for no legitimate purpose” is added to these statutes, letting the courts define what constitutes a “legitimate purpose,” so that constitutional issues can be avoided. See People v. Shack, 86 N.Y.2d 529 (1995).

Essentially, as phrased, the law criminalizes being intentionally annoying or causing alarm, for any purpose. In fact, this could describe any other emergency communication or warning, such as reporting a fire or telling someone they need to go to the hospital right away; it could describe almost any argument over the telephone; or it could describe someone engaging in parody or “joking”  that is protected by the First Amendment.

In 2003, the Court of Appeals found this statute unconstitutional. People v. Mangano, 100 N.Y.2d 569, 571 (2003).

In 2008, the U.S. District Court for the Southern District of New York found the current version of the New York harassment law unconstitutional, and found that the City of New York could be civilly liable for enforcing it.   The matter was settled prior to another written decision being issued. Vives v. City of New York, 524 F.3d 346, 357-358 (2d Cir. 2008).

So what exactly is this monster, aggravated harassment? Aggravated harassment in the second degree, a Class A misdemeanor, occurs when a person intentionally acts to harass, threaten, annoy or alarm another person, using a telephone, telegraph, the mail or any form of written communication, including electronic means. Simply making a call, even if no conversation takes place, can constitute aggravated harassment in the second degree. That’s how vague the law is!

Under the laws in the state of New York, you can be charged with harassment for engaging in a course of conduct or committing acts that place a person in reasonable fear of physical injury. This can include intentionally and repeatedly following someone in a public place, and is known as harassment in the first degree. If the harassment escalates, you may find yourself charged with harassment in the second degree, as set forth in Section 240.26 of the New York criminal code.

Generally, a person is guilty of harassment (NY PL 240.30) if and when that person intends to “harass, annoy, threaten or alarm” another individual. Further, this person must then:

  • s/he communicates with the targeted individual by just about any form of communication including, mail, email or telephone in a manner that is likely to annoy or harm that person
  • Or, with the same intent to “harass, annoy, threaten or alarm” an individual, you (2) make a telephone call to that person (regardless of whether you actually have a conversation) without a legitimate purpose for that communication.

You may have noticed that I highlighted a number of key words in the above. So the whole process involves intent to harass, annoy, threaten or alarm, then makes some sort of communication to that person, and that communication is likely to annoy or harm that person, and/or there is no legitimate purpose for the communication.

Even one of the half-witted Coeymans police officers would or should have been able to figure out that there was no harassment in Vadney’s case, even if we don’t consider the blatant violation of the lawful protective order against any further harassment of Vadney or his family directly by Joe Tracey or indirectly by misusing the Coeymans Police.

So, Vadney, having returned Tracey’s call or responded to Joe Tracey’s request for a call-back pretty much eliminates any suspicion that Vadney  intended to harass, threaten, annoy or alarm Tracey, and Vadney would have had to have placed that call for that specific purpose. But that’s not true. Vadney was responding to Tracey’s request to call him! It would be really hard to believe that the Mr Vadney we know would have made any call to intentionally harass Tracey, or anyone else for that matter. But how does returning someone’s call get turned into harassment? Vadney had no idea why he was calling Tracey, except for the fact that Tracey asked Vadney to call him! Sound like a set-up to you?

Joe Tracey doesn’t have the brains to have set this up himself; neither does Josephine O’Connor. So, we ask you, Who do you think might have been involved in the set-up, given the role Dirty-Hands Jerry has been playing in the displays at board of education meetings, Josephine O’Connor’s little performance after the voting with her “He called me fat!” exhibition, the FaceBook publications by O’Connor, Josephine O’Connor’s father’s (Joe Tracey) visit to the business, where he caused a disturbance and made threats, the refusal of the Coeymans Police to take the woman’s complaint, the appearance of two Coeymans police officer’s at Vadney’s home the day after Tracey’s arrest by the Bethlehem police and after the issue of the order of protection by judge Jordan?

In most cases, most instances where the police respond to a complaint of harassment a simple warning to stop and to avoid contact with the other party is sufficient. This raises the question of why the Coeymans police arrested Vadney in the first place, unless there was something else, something more sinister going on in this abuse of police power. Maybe we should ask GeraldDirty-Hands Deluca” about the abuse of police power, the unlawful arrest, and the other irregularites that are conspicuous in this case.

We’d like to know what you think is going on here? What’s your take on this terrible development? Please leave your comment below (if you don’t want your comment published please indicate that it is confidential).

(Editor’s note: Joseph Edward Tracey was arrested by the Bethlehem police because he allegedly as mouthing off to them and became abusive; because of Tracey’s misconduct it was sufficiently obvious that he was nutty enough for a judge to immediately issue and serve Tracey with a protective order to stay away from Vadney. The Coeymans police ignored that order. In addition, the local business woman who Tracey threatened and whose family he threatened, attempted to file a report and a complaint with the Coeymans police but they refused to take the complaint. The very officer who refused to take the womans’s complaint against Tracey was one of the arresting officers who arrested Vadney, Coeymans police officer Kerry Thompson. Is something starting to stink here? Smell anything rotten yet?)

Please visit our article on what’s beneath the surface: There’s More Than Meets The Eye…

Special Notice: We make every effort to be truthful, complete, fair, and balanced on this blog; therefore, if you see anything that you know to be false or incorrect, or if you have additional information to clarify any issue, please let us know by e-mailing your information or by leaving a comment. It’s very important to us that we don’t fall into the same category as those whom this blog is intended to expose. Thank you very much in advance for your cooperation and assistance!

One response to “Harassment Primer: NY Law Is Unconstitutional

  1. phillip clemons

    May 27, 2014 at 7:47 pm

    My charges are due to get dismissed !!!!



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