Aggravated Harassment Statute Unconstitutionally Vague and Overbroad/Criminal Impersonation Statute Encompasses Injury to Reputation

In a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, the Court of Appeals found the aggravated harassment statute unconstitutionally vague and overbroad, and determined the “injury” contemplated by the criminal impersonation (second degree) statute encompassed injury to reputation.  The defendant's father is a “Dead Sea Scrolls” scholar.  The defendant engaged in an email campaign in which he created emails which purported to be from other “Dead Sea Scrolls” scholars and which had the effect of promoting his father's positions.  The defendant was convicted of criminal impersonation, aggravated harassment, identity theft, forgery and unauthorized use of a computer.  Ultimately the Court of Appeals affirmed convictions for nine counts of criminal impersonation and the forgery counts.  With respect to harassment and criminal impersonation, the court wrote:

A person is guilty [of criminal impersonation in the second degree] when he or she “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” (Penal Law § 190.25).  * * *

…[W]e conclude that injury to reputation is within the “injury” contemplated by Penal Law § 190.25. Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property,[FN2] and we believe the Legislature intended that the scope of the statute be broad enough [*7]to capture acts intended to cause injury to reputation.

Accordingly, a person may be found guilty of criminal impersonation in the second degree if he or she impersonates another with the intent to cause a tangible, pecuniary injury to another, or the intent to interfere with governmental operations … . In addition, a person who impersonates someone with the intent to harm the reputation of another may be found guilty of this crime.

Penal Law § 240.30(1)(a) provides that “[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.” We agree with defendant that this statute is unconstitutionally vague and overbroad … .

In People v Dietze (75 NY2d 47 [1989]), this Court struck down 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. We determined that the statute [*8]was unconstitutional under both the State and Federal Constitutions, noting that “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” (id. at 52).

The reasoning applied in Dietze applies equally to our analysis of Penal Law § 240.30(1)(a). The statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, “no fair reading” of this statute's “unqualified terms supports or even suggests the constitutionally necessary limitations on its scope” … . People v Golb, 2014 NY Slip Op 03426, CtApp 5-13-14