Aggravated Harassment in the 2nd Degree Unconstitutional

Aggravated Harassment in the 2nd Degree law was declared unconstitutional. Those previously convicted can clear their record with a coram nobis, or 440 motion.

 In a recent landmark decision, the New York Court of Appeals has struck down Penal Law §240.30(1)(a), Aggravated Harassment in the Second Degree, as unconstitutional.  See People v. Golb decided May 13, 2014.  The Court ruled that the law was “unconstitutionally vague and overbroad” finally recognizing the argument that many defense attorneys have been making in New York for years.  Three federal judges had previous found that statute unconstitutional.  One federal judge called it “utterly repugnant” to the 1st Amendment.  Schalger v. Phillips, 985 F. Supp. 419, 421 (S.D.N.Y. 1987). 

The Aggravated Harassment in the Second Degree law made certain types of pure speech, not necessarily actions, of a person illegal for which they could be charged criminally for.  Simply put, a person’s words could get them convicted of a crime.  In my own experience as a criminal defense attorney, I have handled many cases where my clients were charged with Aggravated Harassment in the 2nd Degree for doing nothing more than just making a few statements to another person.  In most cases, those statements or words were harmless. 

Many people across New York State have already been convicted of this law, now declared unconstitutional by New York’s highest state court.  If you or someone you know has been convicted of Aggravated Harassment in the 2nd Degree, there are options available to clear your record.  Article 440 of the New York Criminal Procedure Law allows a person convicted of a crime to ask a court to vacate that conviction.  I have successfully handled many 440 motions, also called coram nobis motions, for clients in the past.  If you would like to clear your record, call my office.

Lorenzo Napolitano, Esq.

(585) 325-4445