Lead Opinion
In 1999, the Legislature criminalized “stalking.” The crime contemplates an intentional course of conduct with no legitimate purpose in which the offender targets a particular person. The conduct must be likely to place, the victim in reasonable fear of material harm, or cause the victim mental or emotional harm (see Penal Law § 120.45).
I. Facts
Although defendant had not previously known his victim, a 22-year-old student, he approached her outside a card store and presented her with a bouquet of flowers on Valentine’s Day 2000. Complainant refused the gift, but defendant insisted she take it, introduced himself as “Paul,” and shook her hand. Ultimately she took the flowers and walked away.
Later that month, defendant stood “shoulder-to-shoulder” next to complainant at a local coffee shop. He asked her to sit down and have a cup of coffee with him. After she declined, defendant asked her to dinner. She refused, telling him that her boyfriend would not appreciate his advances. Undeterred, defendant presented her with a heart-shaped box of chocolates and a portrait of her that he had drawn. On the portrait defendant had inscribed complainant’s first name. Disquieted by this unwanted attention, complainant “made it clear” to defendant that she did not want any further contact with him. After he insisted that complainant accept the gifts, she took them and left the coffee shop to go to a library.
A few days later, complainant went to an athletic club on the second floor of a building near her home. From the street below, passersby could see the club’s patrons. Defendant positioned himself where he could see complainant and stare at her while she was working out. Increasingly frightened, she called a friend to meet her at the club and accompany her as she left. Once on the street, they saw defendant handing out flyers. Complainant and her friend then went to a bank to withdraw money. Defendant followed and watched them wait in line at the ATM.
The next day, defendant trailed complainant twice. During a break in her classes, he followed her to a delicatessen where she bought lunch. That evening, he followed her home. Rather than go to her dormitory room, complainant took refuge in a delicatessen on the ground floor of her building, where she telephoned her father and stayed for 40 minutes, afraid to leave. During that entire time, defendant paced outside, staring at her through the windows. When complainant left the deli, defendant was still in the area and began walking toward her.
The following day, defendant watched complainant and her friend have lunch and tracked the pair while they shopped, coming within five feet of them. Whenever they looked back at him, defendant would try to hide behind walls or trees. The two friends then walked to the police precinct. Defendant suspended his pursuit only when the two women approached the station house, where complainant filed another report.
For almost every day over the ensuing five weeks, defendant followed complainant to various locations, including her dormitory, school and gymnasium, and to stores and restaurants in the neighborhood. When she caught sight of him, defendant would often duck behind a corner and peek out to leer at her. She was frequently accompanied by her friend, who saw defendant following complainant two to three times a week.
Fearful and distraught, complainant again contacted the police and altered her daily patterns, trying to shake defendant off. His intrusive behavior only intensified, and on April 5,
The day after that, she saw defendant tracking her once more. For a fifth time, complainant went to the police station, where she broke down in tears. Police arrested defendant the next day and charged him with one count of third-degree stalking (Penal Law § 120.50 [3]), two counts of fourth-degree stalking (Penal Law § 120.45 [1], [2]) and one count of first-degree harassment (Penal Law § 240.25).
Before trial, defendant moved to dismiss the fourth-degree stalking charges, claiming that Penal Law § 120.45 is unconstitutionally vague both on its face and as applied to him. He argued that the statute fails to provide adequate notice of what conduct it prohibits and does not give sufficient guidance to those charged with enforcing it. The trial court rejected defendant’s arguments, concluding that, as applied to him, the statute satisfied the requirements of due process. Defendant waived his right to a jury trial and the court found him guilty of both counts of fourth-degree stalking.
On appeal to the Appellate Term, defendant again argued that Penal Law § 120.45 is unconstitutional on its face and as applied to him. The court affirmed the conviction, holding that the challenged provisions “provide sufficient notice of the conduct proscribed and are written in a manner that does not encourage arbitrary or discriminatory enforcement” (191 Mise 2d 541, 543 [2002]). A Judge of this Court granted defendant leave to appeal, and we now affirm.
II. New York’s Anti-Stalking Statute
In 1992, the Legislature amended the menacing and harassment statutes in its first effort to penalize stalking-type behavior (see L 1992, ch 345; see also Governor’s Mem approving L 1992, ch 345, 1992 McKinney’s Session Laws of NY, at 2886). Concluding that these amendments were not up to the task and that “stalking behavior * * * ha[d] become more prevalent * * * in recent years,” the Legislature in 1999 enacted
The Act, codified at Penal Law § 120.45, provides in relevant part:
“A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:
“1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or
“2. causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct.”
On this appeal, defendant contends that Penal Law § 120.45 is unconstitutionally vague both on its face and as applied to him. As he did in the courts below, he argues that the statute neither gives people adequate notice of what conduct it
III. The Vagueness Doctrine
A. Evolution and General Principles
It is axiomatic that a proscriptive law must provide people with reasonable notice of the conduct it prohibits. Defendant’s challenge goes to the core of this precept. While he properly couches his argument in due process terms, courts had recognized the concept long before it took on constitutional status under the Fifth and Fourteenth Amendments.
The point was made in this country’s jurisprudential infancy, when almost two centuries ago a court explained that, as a rule of statutory construction, indefiniteness is a ground for
Courts soon came to believe that prosecution under a nullified or “void” statute amounts to a constitutional violation (see International Harvester Co. v Kentucky,
Our own decisional law took a similar path. We spoke early of the need for clear statutory warnings to alert people as to prohibited conduct (see People v Phyfe,
Second, the court must determine whether the enactment provides officials with clear standards for enforcement (see Nelson,
B. Facial vs. As-Applied Challenges
A defendant may challenge a statute as being unconstitutionally vague on its face or as applied. Here, defendant has done both. As the term implies, an as-applied challenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case (see People v Parker, 41 NY2d 21, 24 [1976]; Chapman v United States,
Because facial challenges to statutes are generally disfavored (see e.g. National Endowment for the Arts,
It follows, therefore, that if a defendant makes an as-applied vagueness challenge and the court repudiates it, the facial validity of the statute is confirmed (see Hoffman Estates,
Although we have not said it in so many words, our most recent vagueness cases are fully consistent with these principles. In Nelson (
In her concurrence, the Chief Judge argues that the “no valid applications” rule is wrong, and that it is unwise for the Court to employ it (see concurring op at 429-430). While she has thoughtfully discussed the merits of our rule, we regard it as sound and — more to the point — note that there is nothing the least bit novel or ground-breaking in our applying it. In McGowan v
With these principles in mind, we begin by addressing whether Penal Law § 120.45 is unconstitutionally vague as applied to defendant.
Defendant’s principal attack is on the words “no legitimate purpose.” He argues that the Legislature’s failure to define the term renders the statute unconstitutionally vague. He contends that an ordinary person would not know what the phrase means, and that this uncertainty will result in arbitrary enforcement. Defendant asserts that the vagueness problem is exacerbated because the law does not contain a specific intent requirement.
We note at the outset that the statute does contain a mens rea requirement of intent, in that a person cannot be guilty of stalking by accident, inadvertence or chance encounter. To be convicted, the person must have intended to engage in a course of conduct targeted at a specific individual. Defendant argues that this intent requirement is not enough; he claims that the statute must contain a requirement that the offender intend a specific result, such as fear or harm. We disagree. In People v Nelson (
The Legislature’s decision to require intent as to a particular course of conduct — as opposed to a specific result — was purposeful. In following the lead taken by the drafters of the Model Anti-Stalking Code,
In considering defendant’s conduct, we cannot conclude that the phrases “course of conduct” or “directed at a specific person” are in any way vague. From February 14 to April 8 he unflaggingly trailed complainant, from the sidewalk where he first presented her with a bouquet of flowers, to the subway car 30 city blocks away where he simply “smirked” at her. This deliberate and intentional conduct, repeated day after day, was aimed at one victim. Thus, defendant cannot reasonably contend that this was not a willful “course of conduct” “directed at a specific person” or that this description is in any way vague as to him.
The anti-stalking statute also requires that the offender know or reasonably should know that his conduct is likely to cause reasonable fear of material harm to the victim’s physical health, safety or property (see Penal Law § 120.45 [1]). And, in the case of subdivision (2), the statute specifies that the offender must follow, telephone or initiate communication with the victim after being told to stop. These provisions are
In turning to the words “no legitimate purpose,” we note that People v Shack (
Here, too, we are satisfied that an ordinary understanding of the phrase “no legitimate purpose” means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten. The common understanding of that phrase and the various other provisions of the anti-stalking statute, when read as a whole, furnished defendant with adequate notice that his unrelenting pursuit of complainant was unlawful, particularly after she told him that she wanted no contact with him.
Besides the “no legitimate purpose” element, the statute contains lucid provisos clearly applicable to defendant’s conduct: The course of conduct must be intentional; it must be
We therefore conclude that sections 120.45 (1) and (2) of the Penal Law, as applied to defendant’s conduct, are not unconstitutionally vague. It follows that, because there exists at least one constitutional application of the statute, it is not invalid on its face (see Hoffman Estates,
Accordingly, the order of the Appellate Term should be affirmed.
Notes
. The Penal Law divides the crime of stalking into four degrees, depending on aggravating circumstances. Fourth-degree stalking, of which defendant stands convicted, is a class B misdemeanor (Penal Law § 120.45). Third-degree stalking is a class A misdemeanor (Penal Law § 120.50); second-degree stalking is a class E felony (Penal Law § 120.55); and first-degree stalking is a class D felony (Penal Law § 120.60).
. The prosecution dropped the harassment charge and defendant was acquitted of the third-degree stalking charge.
. For a list of all the jurisdictions and their anti-stalking statutes, see David, Is Pennsylvania’s Stalking Law Constitutional?, 56 U Pitt L Rev 205, 205-206 n 1 (1994).
. We note that vagueness challenges to stalking statutes, have almost uniformly been rejected by reviewing courts (see State v Randall, 669 So 2d 223 [Ala Ct Crim App 1995]; Petersen v State,
. Before Berck, this Court had struck down statutes based on vagueness challenges but did not expressly rely on the Due Process Clause (see People v Firth,
. In other instances, lower courts have struck down criminal statutes or ordinances on grounds of unconstitutional vagueness (see e.g. Bakery Salvage Corp. v City of Buffalo,
. The void-for-vagueness doctrine has been considered in civil cases as well as criminal ones (see e.g. Matter of Saratoga Water Servs. v Saratoga County Water Auth.,
. The case before us does not implicate First Amendment rights and defendant. does not argue that the First Amendment overbreadth doctrine applies. Indeed, as the Supreme Court said when considering a vagueness challenge in Chapman v United States, “First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied to the facts of this case” (
. The concurrence misconstrues our analysis by suggesting that a defendant on notice will be unable to raise a facial challenge (see concurring op at 432). This, however, is not the test. A defendant on notice may indeed challenge the statute facially where it is so vague that it leaves the police with arbitrary rather than enforceable standards in every application. Furthermore, we note that defendants are on notice when they should have known that their conduct was prohibited; not, as the concurrence suggests, when “they should have known that their conduct was meant to be proscribed by the challenged statute” (id. at 432 [emphasis added]).
. The Chief Judge has written a concurring opinion in which she raises concerns as to the proper analysis in cases of this type, and disagrees with the Court’s approach. Because her observations are cogent and important, it is appropriate that we address the concurrence in detail. To begin with, we cannot agree that the Court’s approach forecloses the possibility of successful facial challenges in the future (see concurring op at 430). If a defendant can show that the statute is so vague that it specifies no standard of conduct at all or leaves the police with arbitrary rather than proper standards for enforcement, we would, most assuredly, address and sustain a facial challenge because under those circumstances the statute could never be applied constitutionally. As the Chief Judge aptly points out, the defendants in Bright (and New York Trap Rock Corp.) made successful facial challenges, and we note that the challenges prevailed precisely because the statutes gave the police “complete discretion” (Bright,
Under the concurrence, however, we are given no guidance as to when we should entertain a facial challenge. The concurrence does not tell us, for example, when (or why) we should reach the merits of a facial challenge after having rejected the defendant’s as-applied challenge. Nor does the concurrence tell us when (or why) we should reach the merits of a facial challenge after having sustained the defendant’s as-applied challenge. Indeed, in the case before us the concurrence has apparently concluded that the statute is facially valid, but unlike the majority offers no criterion as to when or why it is ever appropriate to reach this constitutional question (or why it has chosen to do so in this particular case). We appreciate that there is some disagreement on the general subject and commentators have debated it at length (see e.g. Hill, Some Realism About Facial Invalidation of Statutes, 30 Hofstra L Rev 647 [2002]; Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv L Rev 1321 [2000]; Note, Stranger in a Strange Land: The Use of Overbreadth in Abortion Jurisprudence, 99 Colum L Rev 173
The concurrence uses Coates (
That approach, and the one we follow today, rules out what would otherwise result in odd or troubling scenarios (if we were to adopt the concurrence’s rationale). Take for example the defendant who makes only an as-applied vagueness challenge. If we reject it, the statute would be constitutional as applied to that defendant, but its facial validity would not have been considered. Eventually, however, another defendant could raise a facial challenge to the same statute. Under the concurrence’s approach, we could properly entertain it and, indeed, strike down the statute on its face. Thus, the defendant’s conviction in the first case will have been upheld based on a statute later found unconstitutional on its face. Even though this sequence may occur in instances where the defendant in the initial case fails to preserve certain arguments for review which the later defendant properly raises, there is a critical difference here. By rejecting the as-applied challenge in the first case, the Court would necessarily have held that the statute provides police adequate guidance for enforcement (the second prong of the vagueness test). The second case, therefore, far from deciding a question not presented in the first litigation, would actually invite the Court to eviscerate the first decision by concluding that the very same statute does not in fact provide the police with adequate guidance.
Lastly, the concurrence is mistaken when it says that the approach wé follow today originated in United States v Salerno (
. Defendant’s argument that he may challenge the anti-stalking stat
. Subdivision (3) of Penal Law § 120.45 is not before us.
. See National Institute of Justice, Project to Develop a Model Anti-Stalking Code for States, at 43-48 (1993).
Concurrence Opinion
(concurring in result). I join in the Court’s rejection of defendant’s as-applied vagueness challenge. Additionally, I agree with the Court’s rejection of defendant’s facial challenge because the language of the statute provides persons of ordinary intelligence with fair notice of what is proscribed and does not permit arbitrary or discriminatory enforcement by the police. That is all that is required to resolve this case, in accordance with a long line of precedents of this Court and others throughout the state that have for decades entertained as-applied and facial challenges to statutes.
What I cannot accept is the rule now imposed that — in a vagueness challenge — a statute must be found constitutional on its face whenever an as-applied challenge fails. The Court’s last sentence says it all: “because there exists at least one constitutional application of the statute, it is not invalid on its face” (majority op at 429). Thus, either a statute will be found constitutional as applied and a facial challenge thereby fails on the merits (as here), or a statute will be found unconstitutional as applied and the Court — having resolved the controversy before it — does not need to reach the facial challenge.
The Court’s rule is taken from United States v Salerno (
A statute is unconstitutionally vague when either of two separate circumstances exist: (1) the statute fails to provide sufficient notice, such that “a person of ordinary intelligence” “could not reasonably understand [what conduct is lawful and what is] proscribed,” or (2) the statute is written in a manner that permits or encourages arbitrary or discriminatory enforcement (People v Bright,
Similarly, in Coates v City of Cincinnati (
This makes sense because vagueness is different. Insofar as a statute’s language may be read to cover both criminal and innocent conduct — and thus may in some circumstances be constitutional as applied and in others unconstitutional — it
In other words, a facially vague statute fails to give anyone notice of its limits, even though everyone might understand its core, and even though it may not be unconstitutional as applied to this core. A vague statute grants the police “too much discretion in every case,” regardless of whether that discretion is applied “wisely or poorly in a particular case * * *. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications” (Morales,
Insofar as the Court now concludes that defendants may not mount a facial challenge when they should have known that their conduct was meant to be proscribed by the challenged statute, its analysis mistakenly focuses exclusively on the first prong of the vagueness test while ignoring the second. Indeed, a focus on the second, “more important” (Kolender,
Thus understood, an analysis of the second prong “as applied” to a defendant has no discernible meaning; the very nature of a second-prong analysis is inherently a facial one. Indeed, the Court’s so-called “as-applied” analysis — focusing as it does on the language of the statute as commonly understood; properly construing “no legitimate purpose” to mean “the
Finally, the Court asserts that, under its rule, facial challenges may nevertheless succeed — as in Bright — when a statute is “so vague that it fail[s] to specify any standard of conduct * * * and placets] ‘complete discretion in the hands of the police’ ” (majority op at 423 [citation omitted]). A statute is vague when a person of ordinary intelligence cannot reasonably understand what conduct is proscribed or when it is written in a manner that permits or encourages arbitrary or discriminatory enforcement. To begin to distinguish among gradations of vagueness so as to determine not merely that a statute fails this constitutional test but rather that it is “so vague” as to be facially invalid creates an unworkable standard.
Thus, in the end the Court’s rule is that failure of an as-applied challenge to the constitutionality of a statute on vagueness grounds automatically constitutes failure of a facial challenge as well — unless the Court decides to reach the merits of a facial challenge by already having determined that the challenger should prevail.
Judges Smith, Graffeo and Read concur with Judge Rosenblatt; Chief Judge Kaye concurs in result in a separate opinion in which Judge Ciparick concurs.
Order affirmed.
. Notably, McGowan v Burstein (
. See City of Chicago v Morales (