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October 27, 2014

Seemingly Minor Changes to New York’s Criminal Statutes Can Have Major Implications

By Michael H. Joseph

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Our White Plains criminal defense and civil rights lawyers are constantly monitoring the state government’s activity in Albany as it relates to changes that are made in the law and how it may affect our clients. Despite a historically quiet season in the legislature, a number of changes to the criminal statutes have been made, many of which will have a wide range of effects for New York public officials, law enforcement, and defendants alike. It is an old adage in politics that modest proposals are more effective than grand designs – they register public concerns but are too small to stoke opposition. When legislators make seemingly small changes to existing laws–a word here, a phrase there–few in the media or public tend to notice. Yet these types of legal changes are the specialty of many expert legislators (and lobbyists) who know exactly how to reword a bill to make a desired outcome. Part of the job of a responsible criminal defense attorney is being able to spot changes in the law, and also understanding the implications of these changes for clients.

Two changes were this made to already-existing laws which reflect how small words can have huge implications: one for the crime of Aggravated Harassment in the Second Degree and another for the crime of Persistent Sexual Abuse. In both of the instances, our attorneys believe that the changes reflect pragmatic policy concerns, based on logical considerations, and that they accurately continue in the spirit of the original legislation.

This year, the Legislature enacted a new statute in response to a New York Court of Appeals decision that held as unconstitutional the law of Aggravated Harassment in the Second Degree, which described the old statute as “vague and overbroad” on a number of fronts, including failing to properly define behavior that results in “annoyance or alarm,” a key element of the crime. The Legislature reacted quickly and enacted a new statute to cure the constitutional defect. Much of the law was the left intact, but the new bill added language prohibiting communication of a threat to cause physical harm where the offender “knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety or property, or to the physical safety or property of a member of such person’s same family or household.” (L. 2014, Ch. 188, eff. July 23, 2014). Additionally, the new law further clarified that the statute was to be specifically applied as a predicate for obtaining obtain orders of protection, primarily in domestic violence cases.

In effectively changing the language to an existing law to meet the Court of Appeals’ constitutional requirements, the Legislature also updated the language to reflect modern technology’s prevalent and evolving role in aggravated harassment cases. The new language eliminated a reference to “telegrams” and instead added “computer” or “any other electronic means” as communication methods now covered.

The Persistent Sexual Abuse statute was created impose tough penalties on multiple offenders of specified sex crimes throughout a 10-year period. Under the existing law, a person convicted of forcible touching or sexual abuse in the third degree, and who has already been convicted of such a crime two or more times in the last ten years, is guilty of “persistent sexual abuse,” an enhanced crime and Class E Felony. However, a loophole of sorts was discovered when trying to prosecute the law effectively, because the 10-year period included time during which the offender was incarcerated. The most obvious reason for this change is because during incarceration an individual is removed from general society and unable to commit sex crimes against the general population. The statute was therefore amended to exclude time during which the offender was incarcerated for any reason at all (L. 2014, Ch. 192, eff. Nov. 1, 2014). Our Manhattan lawyers continuously monitor changes and updates in the law.

 
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