| People v Golb |
| 2013 NY Slip Op 00436 [102 AD3d 601] |
| January 29, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Raphael Golb, Appellant. |
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Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), renderedNovember 18, 2010, convicting defendant, after a jury trial, of identity theft in thesecond degree (two counts), criminal impersonation in the second degree (14 counts),forgery in the third degree (10 counts), aggravated harassment in the second degree(three counts), and unauthorized use of a computer, and sentencing him to an aggregateterm of six months, unanimously modified, on the law and facts, to the extent of vacatingthe identity theft conviction under the first count of the indictment and dismissing thatcount, and otherwise affirmed. The matter is remitted to Supreme Court, New YorkCounty, for further proceedings pursuant to CPL 460.50 (5).
Defendant's convictions arise out of his use of emails to impersonate actual persons.Nothing in this prosecution, or in the court's jury charge, violated defendant's FirstAmendment or other constitutional rights.
Defendant is the son of an expert on the Dead Sea Scrolls. Defendant set up emailaccounts in which he pretended to be other scholars who disagreed with defendant'sfather's opinion on the origin of the Scrolls. Among other things, defendant sent emailsin which one of his father's rivals purportedly admitted to acts of plagiarism.
Defendant's principal defense was that these emails were only intended to be satirichoaxes or pranks. However, as it has been observed in the context of trademark law, "[a]parody must convey two simultaneous—and contradictory—messages: thatit is the original, but also that it is not the original and is instead a parody" (CliffsNotes, Inc. v Bantam Doubleday Dell Pub. Group, Inc., 886 F2d 490, 494 [2d Cir1989] [emphasis omitted]). Here, the evidence clearly established that defendant neverintended any kind of parody. Instead, he only intended to convey the first message to thereaders of the emails, that is, that the purported authors were the actual authors. It wasequally clear that defendant intended that the recipients' reliance on this deception wouldcause harm to the purported authors and benefits to defendant or his father.
The court's charge, which incorporated many of defendant's requests, fully protectedhis constitutional rights, and the court was not required to grant defendant's requests foradditional instructions. The court carefully informed the jury that academic discussion,parody, satire and the use of pseudonyms were protected by the First Amendment.
The court also ensured that the jury understood the terms "fraud" and "defraud" by[*2]expanding their definition and advised the jury that"without the intent to deceive or defraud as to the source of the speech with the intent toreap a benefit from that deceit, there is no crime." The court was under no obligation tolimit the definitions of "injure" or "defraud"—terms used in the forgery andcriminal impersonation statutes—to tangible harms such as financial harm (seePeople v Kase, 76 AD2d 532, 537-538 [1st Dept 1980], affd 53 NY2d 989[1981]). The court also properly employed the statutory definition of "benefit" as "anygain or advantage" to defendant or to another person (Penal Law § 10.00 [17]).
Defendant argues that it is constitutionally impermissible to include an intent toinfluence a constitutionally-protected academic debate within the concept of fraud, injuryor benefit, that allowing injury to reputation to satisfy the injury element wouldeffectively revive the long-abandoned offense of criminal libel, and that, in any event, thealleged truth of the content of the emails should have been permitted as a defense.However, the evidence established that defendant intended harm that fell within the plainmeaning of the term "injure," and that was not protected by the First Amendment,including damage to the careers and livelihoods of the scholars he impersonated.Defendant also intended to create specific benefits for his father's career. The fact that theunderlying dispute between defendant and his father's rivals was aconstitutionally-protected debate does not provide any First Amendment protection foracts that were otherwise unlawful.
Defendant was not prosecuted for the content of any of the emails, but only forgiving the false impression that his victims were the actual authors of the emails. TheFirst Amendment protects the right to criticize another person, but it does not permitanyone to give an intentionally false impression that the source of the message isthat other person (see SMJ Group, Inc. v 417 Lafayette Rest. LLC, 439 F Supp2d 281 [SD NY 2006]).
We have considered and rejected defendant's remaining arguments concerning thecourt's charge. We similarly reject his claims that the statutes under which he wasconvicted were unconstitutionally vague or overbroad. None of these statutes was vagueor overbroad on its face or as applied (see People v Shack, 86 NY2d 529, 538[1995]; Broadrick v Oklahoma, 413 US 601, 611-616 [1973]). The People wererequired to prove that defendant had the specific fraudulent intent to deceive emailrecipients about his identity, and to obtain benefits or cause injuries as a result of therecipients' reliance on that deception. The statutes criminalized the act of impersonationand its unlawful intent, not the content of speech falsely imputed to the victims.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence, with the exception of the identity theft conviction under the first count.The theory of that count was that in the commission of identity theft in the second degree(Penal Law § 190.79 [3]), defendant attempted to commit the felony of scheme todefraud in the first degree (Penal Law § 190.65 [1] [b]). However, there was noevidence that defendant intended to defraud one or more persons of property in excess of$1,000 or that he attempted to do so (see id.). The People's assertions in thisregard rest on speculation. Concur—Mazzarelli, J.P., Renwick, Richter, Gischeand Clark, JJ.