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Aggravated Harassment in the Second Degree Declared Unconstitutional in New York

The New York Court of Appeals has struck down a provision of the New York Penal Law, Section 240.30 (1)(a) as "unconstitutionally vague and overbroad", which will have an immediate effect on the validity and the nature of Family Offense petitions brought in New York State Family Courts and motions for protective orders in divorce matters in Supreme Courts.

In People v. Golb, (2014 N.Y. Slip Op 00072 May 13, 2014) the Court of Appeals declared that aggravated harassment in the second degree (PL Sec 240.30 (1)(a)) is too "vague and overbroad" and is no longer good law.

This decision has potentially significant family law and divorce law implications.

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 an a manner likely to cause annoyance or alarm."

In divorce matters in Supreme Court, and in family law matters brought in Family Court, there are frequently allegations made by one spouse and/or partner, against the other spouse/partner that there were communications that caused the spouse to feel threatened, harassed, or alarmed. Written requests are made of the court (motions in Supreme Court and Family Offense Petitions in Family Court) seeking an order of protection on behalf of one spouse / partner (current or former) against the other.

Aggravated Harassment in the Second Degree is frequently used in domestiic disputes and divorces as a legal rationale for the court to grant an order of protection to stop such threatening behavior, which is not physical in nature, or in addition to physically threatening and/or violent behavior.

Family Law and divorce practitioners frequently see family law cases involving a spouse who is alleged to have made threatening phone calls, text messages, and / or emails to a spouse / partner or former partner.

There is substantial case law in New York stating "words alone are not enough" to warrant an order of protection, even if those words are communicated with a harmful intent. But that was not always the case and courts did grant protective orders with aggravated harassment as the legal rationale.

The invalidation of Aggravated Harassment in the Second Degree is likely to swing the pendulum away from orders of protection where threatening words - written or spoken - are the foundation of the request.

Categories: Litigated Divorce
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