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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