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Main | Andrew Cumo's 2013-2014 Budget--Your Driving Privileges »
Tuesday
May202014

Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along

In People v Golb, 2014 NY Slip OP 02346, Justice Abdus-Salaam, reasons that Penal Law Section 240.30(1), "criminalizes, in broad strokes, any communication that has the intent to annoy..."[N]o fair reading" of this statute's "unqualified terms supports or even suggests the constitutionally necessary limitations on its scope" (id. at 52; see also People v Dupont, 107 AD2d 247, 253 [1st Dept 1985] [observing that the statute's vagueness is apparent because "[i]t is not clear what is meant by communication 'in a manner likely to cause annoyance or alarm' to another person"]). And, as in Dietze, "we decline to incorporate such limitations into the statute by judicial construction" because that would be "tantamount to wholesale revision of the Legislature's enactment, rather than prudent judicial construction" (id. at 53). "Three federal judges have already found this statute unconstitutional (see Vives v the City of New York, 305 F Supp 2d 289, 299 [SD NY 2003, Scheindlin, J.], revd on other grounds 405 F3d 115 [2d Cir 2004] ["where speech is regulated or proscribed based on its content, the scope of the effected speech must be clearly defined"]; see also Vives 405 F3d 115, 123-124 [2d Cir 2004, Cardamone, J., dissenting in part, concurring in part] [Penal Law § 240.30(1) unconstitutional on its face and as applied]; Schlager v Phillips, 985 F Supp 419, 421 [SD NY 1987, Brieant, J.], revd on other grounds, 166 F3d 439 [2d Cir 1999] [statute is "utterly repugnant to the First Amendment of the United States Constitution and also unconstitutional for vagueness"]). "Accordingly, we conclude that Penal Law § 240.30(1) is unconstitutional under both the State and Federal Constitutions, and we vacate defendants' convictions on these counts." The opinion is dated May 14, 2014, and is sadly too late for some individuals who have already taken pleas, paid fines, lived under probation supervision, or even done some jail time after facing charges under this statute. But...better late than never, as they say.

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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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    rjalbaughlaw - Blawg - Penal Law Section 240.30(1) is "Utterly Repugnant to the First Amendment of the United States Constitution"-- NYS Court of Appeals Confirms what Defense Attorneys Have Been Thinking All Along
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