Pace U’s Koran-flusher: Examining the (presumptive) charges; Update: Unconstitutional?

posted at 1:47 pm on July 29, 2007 by Allahpundit

The word from LGF is that he’s being charged with two felonies, criminal mischief and aggravated harassment. Fair or not? Let’s look at the statutes.

Criminal mischief is section 145 of the NYS Penal Code. There are four separate counts: fourth degree is a misdemeanor and first degree requires the use of explosives so the charge here has to be second or third degree.

S 145.05 Criminal mischief in the third degree.

A person is guilty of criminal mischief in the third degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding two hundred fifty dollars.

Criminal mischief in the third degree is a class E felony.

S 145.10 Criminal mischief in the second degree.

A person is guilty of criminal mischief in the second degree when with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding one thousand five hundred dollars.

Criminal mischief in the second degree is a class D felony.

Assuming the Korans Shmulevich flushed were school property, that would presumably make him guilty of fourth-degree mischief, which stipulates no dollar amount. But how on earth did he cause $250 (or $1,500!) worth of damage sufficient to warrant a felony charge? Did he flush some rare and valuable Koran, a la Charles Merrill? Or was the damage caused by the book being sucked into the bathroom pipes and wreaking havoc in the walls? Sounds like neither:

On Oct. 13, a teacher discovered a paperback Koran in a toilet in a second-floor bathroom. On Nov. 21, a student found a submerged Koran in the same bathroom, cops said.

Maybe the November Koran was rare and valuable? Or maybe they’re deliberately overcharging him to pressure him into copping a plea to fourth degree? Either way, the lesson is clear: if you’re going to flush a Koran, make sure it’s yours.

So much for the property crime. The “hate crime” is covered by the aggravated harassment charge, a.k.a. section 240.3 of the Penal Code. Two possible counts here: second degree and first degree, but second degree is a misdemeanor so they must be looking at the big one.

S 240.31 Aggravated harassment in the first degree.

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:

1. Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars; or

2. Commits the crime of aggravated harassment in the second degree in the manner proscribed by the provisions of subdivision three of section 240.30 of this article and has been previously convicted of the crime of aggravated harassment in the second degree for the commission of conduct proscribed by the provisions of subdivision three of section 240.30 or he has been previously convicted of the crime of aggravated harassment in the first degree within the preceding ten years.

Aggravated harassment in the first degree is a class E felony.

Emphases mine. Subsection 2 (which refers to section 240.30) deals with physical assault so the charge here must be based on subsection 1, i.e., damaging premises “primarily used for religious purposes” in excess of $50. The Daily News article linked above says Shmulevich took the Korans from the Pace meditation room; one of the lesser questions for the court presumably will be whether the meditation room is used primarily for “religious” purposes or whether its overarching purpose for “meditation” means it’s “primarily” used for something more secular. The money question will be whether the statute is unconstitutionally vague and overbroad. A federal district judge found the second-degree aggravated harassment statute unconstitutional on those grounds back in 1997:

The statute “is over broad as well as vague. It is unclear what type of communication would be considered to be initiated ‘in a manner likely to cause annotance or alarm’ to another person… The statute in this case is utterly repugnant to the First Amendment of the United States Constitution and also unconstitutional for vagueness.”

I don’t have Lexis-Nexis so I don’t know what happened on appeal, but the statute still reads today just as it did then. (Update: Actually, no it doesn’t. See below.) If that one’s unconstitutional, the first degree statute is likely unconstitutional too. In fact, a clever defense attorney would argue that there’s an Establishment Clause violation in subsection 1. Presumably someone who stole the flag from a VFW and burned it in front of a bunch of vets to piss them off would skate on an aggravated harassment charge because the VFW isn’t “primarily used for religious purposes.” Why the special treatment for churches, temples, mosques, and Pace University meditation rooms?

Update: My bad. There is a difference between the 1997 and the 2007 version of the aggravated harassment statute: the earlier version evidently turned on whether the act itself was done “in a manner likely to cause anno[y]ance or alarm”; the current version depends on whether the defendant acted “with intent to … annoy … or alarm.” That’s a little better insofar as it makes it a bit harder for the prosecutor to prove his case, but my guess is that the court’s real problem was with the annoy/alarm language, which is common to both. Let me see if I can find the opinion.

Update: I can’t find the district court opinion on Google — maybe Patterico will work his Lexis fu to dig it up and analyze it — but it turns out the case was reversed on appeal, albeit on procedural grounds. The Second Circuit ruled that the district judge should have abstained from the case and let the state courts handle it unless it could be shown that the statute was clearly unconstitutional. Was the statute clearly unconstitutional? Nope:

Here, in concluding that section 240.30(1) is unconstitutional, and hence that this prosecution was brought in bad faith, the district court relied extensively on People v. DuPont, 107 A.D.2d 247, 486 N.Y.S.2d 169 (1st Dep’t 1985), a case which, in the district court’s language, had found the statute “utterly repugnant to the First Amendment . . . and also unconstitutional for vagueness.” Schlagler, 985 F.Supp. at 421…

As an initial matter, in Dupont the court found the acts complained of did not fall within section 240.30(1) but nevertheless that the statute was unconstitutional on its face. While it may have purported to declare the statute facially invalid, it is not entirely clear that it did so and in any event does not render invalid all prosecutions under the statute. To the contrary, Dupont itself acknowledged that other courts have found the statute constitutional. Dupont, 107 A.D.2d at 252, 486 N.Y.S.2d at 173 (citing People v. Smith, 89 Misc.2d 789, 791-92, 392 N.Y.S.2d 968, 971 (N.Y. App. Term 1977)). Moreover, there have been a number of successful prosecutions under the law since Dupont . E.g., People v. Diraimondo, 174 Misc.2d 937, 940, 667 N.Y.S.2d 205, 207-08 (N.Y. Dist. Ct., Nassau Cty. 1997); People v. Miguez , 153 Misc.2d 442, 590 N.Y.S.2d 156 (N.Y. App. Term, 1st Dep’t 1992), aff’g 147 Misc.2d 482, 556 N.Y.S.2d 231 (N.Y. Crim. Ct. 1990); People v. Katz, 135 Misc.2d 857, 518 N.Y.S.2d 721 (N.Y. App. Term, 1st Dep’t 1987).

In other words, New York courts were split over whether the initial version of the aggravated harassment statute was constitutional or not. I’d love to be able to tell you what the courts have said about the new version but I think I’ve reached the limits of where Google will take me. Any legal eagles with Westlaw want to shepardize this puppy and let me know what you find? There’s a link in it for you.

Update: I guess the VFW example doesn’t work because the harassment there isn’t based on a protected category of race, religion, orientation, etc. Try it instead with the NAACP. Some nut breaks into their NYC headquarters, walks out with some property, and torches it outside the building while employees look on. No religious premises = no first-degree aggravated harassment charge. Why not?

Update: A tipster with Lexis access forwards along an interesting slip opinion from the NYS trial court level from January. The case is State v. Bender. The court was dealing with the second-degree aggravated harassment statute, not the first-degree, but the relevant language is the same in both. Money quote:

In order for a defendant’s communication to be of the type intended to be criminalized by the legislature in enacting Penal Law § 240.30 [1] the communication must, be obscene, a specific and unequivocal threat, or by its very utterance tend to incite an immediate breach of peace. (see People v. Smith, 89 Misc. 2d 789, 392 N.Y.S.2d 968 [App Term 2d Dept. 1977]; People v T.V., 2003 NY Slip Op 51050U, 2003 N.Y. Misc. LEXIS 809 [Crim Ct, New York County June 24, 2003]). Furthermore, Penal Law § 240.30 [1] criminalizes communications directed at an unwilling recipient under circumstances wherein ” substantial privacy interests were violated in an essentially intolerable manner.’” (see People v. Smith , supra, at 791, quoting Cohen v. California, 403 U.S. 15, 21, 91 S. Ct. 1780, 29 L. Ed. 2d 284 [1971]). However, without threats of violence or harm, even “rude or angry words are not enough to constitute aggravated harassment.” (see People v. Webers, 9 Misc. 3d 135(A), 808 N.Y.S.2d 920, 2005 NY Slip Op 51673(U) App Term 1st Dept. [2005]; quoting People v. Livio, 187 Misc. 2d 302, 307, 725 N.Y.S.2d 785 [2000]).

In other words, the court seems to be equating the dicey, dubiously constitutional language in the statute about intending to “harass, annoy, threaten or alarm another person” with intent to threaten or to provoke a fight. Why do that? Because threats and “fighting words” are both exceptions to the First Amendment. If the court read the statute any more broadly, it would be arguably unconstitutional. That’s good news for Shmulevich, although the fact that this is a trial court opinion means it doesn’t have much precedential value. Essentially, he’d argue that at best flushing a Koran is tantamount to “rude and angry words,” which, per the court’s opinion, cannot themselves constitute aggravated harassment in the second degree, let alone in the first. If the ACLU wasn’t such a bunch of rods this would be a money case for them.


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He should have purchased “Koran in Krapper Offsets

Wade on July 30, 2007 at 9:08 AM

Burning a Flag? Okey-Dokey.
Putting Christ in a jar of piss? That’s art.
Creating a painting of Mary with elephant dung? Also art.
Putting a Koran in a toilet? HORROR! WE MUST ACT! WORST CRIME EVER!

Apparently, literally shitting all over religious works are fine, as long as you don’t pull a little metal handle.

BKennedy on July 30, 2007 at 8:13 AM

Has any society in history ever before been so willing to disrespect their own culture while simultaneously being so timid about disrespecting the culture that is attempting to destroy them?

When did this bizarro world begin? After 9/11, mass desecrations of the Koran would have made sense. I’m not suggesting or applauding that sort of thing – but its at least logical.

We’re attacked by radical Islam. So we offend Islam. That’s logic.

But now? We’re attacked by radical Islam … so we can crap on our Bible and burn our flag, but offending Islam is a felony?

Can anybody explain this phenomenon? Has it ever happened in history?

To paraphrase Stephen King rambling on about Yeats: Things fall apart; the center does not hold. And things are getting frayed on the edges, badly, these days.

We need to wake up. We’re committing cultural and societal suicide, and I don’t even understand our motives.

What are we doing?

Professor Blather on July 30, 2007 at 9:12 AM

Professor Blather on July 30, 2007 at 9:12 AM

Those communists masquerading as socialists pretending to be liberal democrats are unraveling the fabric of our society so that they can refashion in into their communist/socialist utopia. To do this they have to destroy the current social order and devalue religion, this is just one of the ways they are doing it.

doriangrey on July 30, 2007 at 9:40 AM

Prof. Blather;

It’s called “Political Correctness,” and is the disease that will be the death of the United States of America. Let’s examine something that was posted earlier:

communication must, be obscene, a specific and unequivocal threat, or by its very utterance tend to incite an immediate breach of peace. (see People v. Smith, 89 Misc. 2d 789, 392 N.Y.S.2d

Ok. “…tend to incite an immediate breach of the peace.” What happened when the carricatures of the Prophet appeared in a Danish newspaper? Riots by … Christians? Nope. Buddists? Nada. Jews? Nope. Muslims? SHHH!!! You’re stereotyping us! DISCRIMINATION!!!

There are oh so many posts here that are 100 per cent on the money. Unfortunately, while you and I and the people that post here know the truth … the sad truth is that this student will in all likelyhood be charged with these crimes … just to make an example of him. How DARE he flush the Holy Book of our favourite religion?? We need to find something to charge him with so that our muslims don’t riot and burn something down…

And to the libs and Dems reading this; tell me something. When “Piss Christ” came out, how many Christians threatened to blow up the art museum? How many Christians murdered an Iman who had nothing to do with the incident? Do you remember when muslims murdered a (I THINK she was a) Roman Catholic Sister? Hmm?? How about the rioting in the streets? Did that happen when “Piss Christ” came out? Granted, there are a few unhinged Christians out there, such as those that burn down abortion clinics and/or murder abortion doctors. I in no way shape or form agree with abortion; but I agree even less with murdering the doctors that do it. Vengeance belongs to God, according to the Bible. Yes, I know it’s Politically Incorrect to quote the Bible. Get over it. And yourselves, you ruddy libs.

I’m sorry libs; but your silence is deafening. For rules to apply to anybody, they must apply to all. For rules to have any teeth, they must be fairly and uniformly applied to all. Until the human condition changes, that won’t happen. Sad, but true.

And Ordinary1 … your comment about Pastors being charged for preaching against homosexuality. Here you go:

http://www.star-telegram.com/national_news/story/184722.html

Read it … and weep for our once great Nation.

Entropy40 on July 30, 2007 at 9:41 AM

Entropy40 on July 30, 2007 at 9:41 AM

What I don’t understand though is why political correctness is so selective!

I’m a true advocate of free speech – I say offend everybody, if that’s what you want. I may beat you to pulp if you burn the flag in front of me … but I support your legal right to do it. And so on.

But WHY is this same political correctness NOT applied to Christian symbols, or the flag? Why are we so eager to be politically correct towards the very people who want to kill us?

The logic has just vanished here. And I really can’t think of any society in history that has responded to an external threat in this way.

Usually – and usually shamefully – the opposite happens. Even in recent history: the internment of the Japanese-Americans is a classic example. However you may feel about it … you understand the logic. The Japanese attacked us … so we (rightly or wrongly) “attacked” them at home.

If our culture of today had existed in 1941 … what would Roosevelt have done? Immediately made it a felony to mock the Japanese? Imprisoned anyone saying bad things about the Emperor?

This is madness.

Professor Blather on July 30, 2007 at 9:57 AM

Forwarded the whole thing to FIRE the minute I saw it on LGF. Hopefully they can help.

MadisonConservative on July 30, 2007 at 9:59 AM

I wrote this at MM.

The irony in this event is the fact that the koran itself is hate speech.

By quieting a single copy of the most dangerous, hateful and terror inciting book in the history of the world, the guy is charged with….hate?

pls wake me up, this nightmare is getting worse.

shooter on July 30, 2007 at 10:39 AM

Prof. Blather;

It’s called “Political Correctness,”

I’m afraid it is much, much more than that. It is WAR.

War on Terror? Yes, but also-
We are in the most important SPIRITUAL WAR in history, and the enemy is on the attack.

shooter on July 30, 2007 at 10:48 AM

shooter-I agree. click on my name and see what I wrote yesterday.

Doug on July 30, 2007 at 11:03 AM

What I don’t understand though is why political correctness is so selective!

I’m a true advocate of free speech – I say offend everybody, if that’s what you want. I may beat you to pulp if you burn the flag in front of me … but I support your legal right to do it. And so on.

But WHY is this same political correctness NOT applied to Christian symbols, or the flag? Why are we so eager to be politically correct towards the very people who want to kill us?

Professor Blather on July 30, 2007 at 9:57 AM

White guilt and atonement – The driving forces of Western culture since the emotional shock of WWII.

progressoverpeace on July 30, 2007 at 11:10 AM

This is madness.

Professor Blather on July 30, 2007 at 9:57 AM

It is indeed madness. And, in my humble Christian opinion, can only be comprehended by considering what is going on behind the scenes in the spiritual realm, a la Ephesians 6:12 (as shooter has referred to).

infidel4life on July 30, 2007 at 11:19 AM

Professor B.-

P.C. kicks in because:

Islam is a “protected minority”.

Until they tip the demographic balance, then the Constitution is toilet paper, and we get beheaded for objecting to Sharia Law.

I guess it is a sucide pact after all.

At least according to Pace.

And the friends of the “hatecrime” laws.

profitsbeard on July 30, 2007 at 11:40 AM

Profitsbeard;

BINGO! You’ve won the … um … 64 cent prize. Sorry, but I simply can’t afford more. :) But you’ve nailed it on the head, I fear. Islam is a protected minority. Also, let’s not forget that there appears to be a concerted effort to get God out of American society. I find this odd because President Washington mentioned God four times in his farewell address. But, eh. Progress, ne?

People can offend Christ, Christians, and Christianity all that they want, but because it’s Politically Correct to do so, it’s free speech. Make carricatures of the Prophet, however, and riots break out. And then the knives and explosives break out.

Progressoverpeace said it was white guilt and atonement. I’ll give him (or her) the guilt, but atonement? I think appeasement is more like it. And that, my friends, has never worked.

Remember First, Second, and THIRD Partition of Poland? Why did those happen? Appeasement. Remember that worthless treaty that Neville Chamberlain brought back to English soil? The one that promised “Peace in our time?” More appeasement.

Now we try to appease the radical muslims … remember Germany giving them their own holiday? Hmmm…this doesn’t appear to be working either.

Glenn Beck said it differently on Coast to Coast AM With George Noory on 14-NOV-2006. Mr. Beck said that the only way to get rid of radical Islam is to … well. I don’t want to quote him for fear that it would violate the terms of use of this site. But if you look that quote up … you might want to be sitting down for it.

Entropuppy (Thanks for the nickname, Lori!)

Entropy40 on July 30, 2007 at 1:03 PM

Progressoverpeace said it was white guilt and atonement. I’ll give him (or her) the guilt, but atonement? I think appeasement is more like it. And that, my friends, has never worked.

Entropy40 on July 30, 2007 at 1:03 PM

Him.

Yes, it is appeasement. But why do they want to appease? I said “atonement” because that is how we alleviate guilty feelings in Judeo-Christian culture.

Whites who feel guilty (I am not one of them) feel the need to “atone for their sins” and appeasing is how they do it. And the more it hurts them, and other whites/Westerners, the better they feel. That’s how I perceive the situation.

As a side note, tribal cultures like arab/persian/muslim cultures, don’t use guilt and atonement as control mechanisms, but rather shame and revenge – which is why they produce suicide bombers to exact revenge on others and we produce suicidal people to atone for our own perceived sins. (Again, I think that Westerners have nothing to feel guilty about, but many in the West are consumed with guilt)

progressoverpeace on July 30, 2007 at 1:40 PM

To the pc crowd, there are no american, we are all immigrants. That is the tired line i always get talking to them about illegal immigration

kathleen

Errrmmmm …. the treatment that Native Americans got after they failed to control their borders is actually a damned good argument for border control.

Kristopher on July 30, 2007 at 1:48 PM

Look, let’s revisit the Sheryl Crow demand that we use a single square to inhibit global warming. This way, the koran could last for years.

Do not flush all at once!

The U.S. toilet constitution: separation of church and waste.

saved on July 30, 2007 at 2:22 PM

See, Silky Pony is right there are two Americas. While Stanislav Shmulevich gets railroaded, Al Gore III gets a walk:

http://kalapanapundit.blogspot.com/2007/07/two-americas.html

Kalapana on July 30, 2007 at 4:17 PM

Wouldn’t it be fun to watch the ACLU take on CAIR over this one?

desertdweller on July 30, 2007 at 5:03 PM

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