Tagged: Honorable Eugene F. Pigott

NY Court of Appeals Holds Unconstitutional a Law Prohibiting Cyberbullying

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The internet’s opportunities for communication can be, and in most cases are, beneficial. But some persons may maliciously utilize such opportunities to expose others to embarrassment, and the harm inflicted can be extremely damaging, especially when such communications expose minors to severe embarrassment relating to sexual matters. Such communications have come to be termed “cyber-bullying.”

With instances of cyber-bullying increasing, public authorities have responded with varying measures, including criminalization, in an effort to curb such communications. But because the communications at issue are speech, their restriction must survive constitutional review under the First Amendment’s free speech clause.

New York State has a prior history of protecting minors against the damaging effects of sexual communications. In New York v. Ferber, 458 U.S.747 (1982), the U.S. Supreme Court unanimously upheld, against a Free Speech challenge, a New York statute prohibiting persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicted such a performance (reversing a decision of the N.Y. Court of Appeals).

On July 1, 2014, by a 5-2 vote the N.Y. Court of Appeals struck down as violating the First Amendment a law against cyber-bullying enacted by the Albany County legislature. On appeal, the County conceded that there was wording in the law that was constitutionally overbroad, but argued that, pursuant to accepted severability practice utilized in constitutional interpretation, the Court could sever the offending words and leave in place the remaining portions of the law as constitutionally valid and thus affirm the misdemeanor conviction of an Albany County high-school student who anonymously posted on Facebook photographs and detailed information about the alleged sexual practices and predilections of his classmates.

Thus, the key issue on appeal was the application of proper judicial employment of the severability doctrine, which allows a court to excise unconstitutional elements of a law in order to preserve constitutionally valid elements that may sustain conviction for the crime charged. While the Court majority acknowledged that some elements of the law’s text could be appropriately severed, other portions could not, without leaving in place other issues potentially raising further First Amendment problems.

Judge Robert Smith, in a dissenting opinion joined by Judge Pigott, stated that, with application of Albany County’s concessions for excision, the law passed constitutional muster. On Judge Smith’s reading of the applicable precedents, the defendant’s “speech designed to inflict serious emotional injury is protected only” if the defendant’s Facebook posting was “directed at a matter of public concern,” which was clearly not present in the case before the Court.


NY Court of Appeals Issues a Ruling on Depraved Indifference Murder

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Reviewing a case of egregious recklessness that caused the death of an innocent victim, a 5-2 majority of the Court of Appeals reversed a conviction for depraved indifference murder and cautioned that efforts to prosecute a defendant on this charge must “fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life.”

In April 2009, Jose Maldonado hot-wired and stole a minivan in the Greenpoint section of Brooklyn. In a determined effort to avoid capture by police pursuing him through streets in a mixed residential and commercial area, during a five-minute period Maldonado greatly exceeded the speed limit, drove through several red lights, repeatedly swerved into opposing traffic lanes, and repeatedly drove the wrong way on one-way streets. After one pedestrian narrowly managed to dive away to escape being struck by the van, which did not brake, Maldonado drove, again without braking, into another pedestrian, Violet Kryzak (aged 37), who was crossing Manhattan Avenue with the traffic light in her favor. The van’s windshield on the passenger side showed signs of impact with Ms. Kryzak’s body.

Maldonado said he thought he “hit the girl in the hand or something.” Apparently, it was not her hand that he smashed into because impact with the stolen van, which witnesses estimated to be going at least 70 mph, catapulted Ms. Kryzak’s body into the air, to land more than 160 feet from the point of collision. Without stopping to seek help for Kryzak (who died at the scene), Maldonado continued his effort to avoid capture, speeding north in a southbound lane with the van’s windshield caved in on the passenger side. Apparently realizing shortly afterwards that he could not escape with the van, he crashed it into a car, got out, and ran away. This last attempt to avoid capture was unavailing, thanks to civilians who grabbed him and held him for the police.

Among other charges, the prosecutor sought to convict Maldonado for second-degree murder, pursuant to N.Y. Penal Law § 125.25 (2), on the basis that Maldonado recklessly created a grave risk of death to another person and caused such death in circumstances that evinced his depraved indifference to human life [DIM]. A jury unanimously agreed, and the Appellate Division unanimously affirmed the conviction.  It held that the evidence was legally sufficient to support defendant’s conviction for depraved indifference murder and that, upon independent review, the conviction was not against the weight of the evidence.

Maldonado sought review by the Court of Appeals. Maldonado’s appellate counsel conceded that Maldonado’s conduct was reckless but argued that it did not meet the requirements for DIM established in the Court’s recent precedents.

On July 1, 2014, a majority of the Court agreed. Quoting one of its precedents, the Court stated that “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” by his reckless conduct. The Court held that “assuming the People proffered evidence indicating that defendant was aware of and disregarded the substantial risk of injury or death caused by his driving, they failed to submit evidence establishing that defendant did not care whether grievous harm resulted.”

Despite applying the applicable standard to review the record in the light most favorable to the prosecution, the Court found that “defendant sought to mitigate the consequences of his reckless driving” by at times swerving to avoid crashing into other vehicles. The Court credited defendant for such “conscious avoidance of risk,” which it stated was “the antithesis of a complete disregard for the safety of others.” The Court found that, despite the fatal collision with Violet Kryzak, the purpose of Maldonado’s extremely dangerous driving tactics was simply “to speed his flight and to avoid crashing into other vehicles or pedestrians.” According to the Court’s review, the record showed “no indication that [Maldonado’s] conduct … was motivated solely by his intent to evade capture, regardless of the risk to human life.” Therefore, the Court ordered that, given Maldonado’s “conscious avoidance of risk” during his concededly reckless driving in a desperate effort to avoid capture for his crimes, his killing of Violet Kryzak rendered him guilty only of second-degree manslaughter.

In a dissenting opinion joined by Judge Graffeo, Judge Pigott noted that after Maldonado narrowly avoided collision with one pedestrian and then struck and killed Ms. Kryzak, he did not cease his reckless conduct “when he had the opportunity to display that he cared whether or not he might strike a pedestrian.” Applying the required standard of review, Judge Pigott stated that there was “a valid line of reasoning and permissible inferences from which a rational jury” could find that defendant “simply did not care whether or not a pedestrian died,” thus demonstrating not just extreme recklessness but also “utter indifference to the value of human life.”