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June 29, 2011 - 3:40pm

Attorneys react to decision dismissing case against Chris Charvella

posted by Howard B. Owens in batavia, Le Roy, Chris Charvella, Jay Grasso.

Melissa Cianfrini says, naturally she's disappointed the case was dismissed against Chris Charvella. As assistant DA, she was given the task of prosecuting him on an aggravated harassment, 2nd, charge because Charvella placed a phone call to Legislator Jay Grasso,

"I obviously respect the court and the court's decision, but I respectfully disagree with the reason behind it," Cianfrini said.

Town of Batavia Justice Mike Cleveland wrote in his decision, "Mr. Charvella's call was made to Mr. Grasso on a number not only listed in the public phone book but also listed on the Genesee County Legislature's list of public official contact numbers. It was not an anonymous or random call. It was not 'absent of expression of ideas or thoughts.'

"The factual allegations in this case," Cleveland concluded, "do not constitute a violation of the charge of PL 240.30-2.

The written decision dismissing the case is only two pages long and doesn't directly touch on any of the free speech or First Amendment issues raised by Charvella's defense attorney, E. Robert Fussell.

But Fussell said that just because Cleveland didn't mention the First Amendment doesn't mean that case law based on the First Amendment isn't the foundation of his decision.

Fussell said he believes the case law that led to Cleveland's decision is based on First Amendment protections.

He said prior cases interpret the clause in the law that says for "no legitimate purpose" to mean that a call must be entirely for the purpose of annoying or threatening to constitute harassment.

"Underlying the decision is that you can't charge somebody for just making a phone call," said Fussell. "What the courts are really saying is that the charge must pass First Amendment muster."

Cianfrini said, however, that she still doesn't believe this was a free speech case. It was about a private phone call placed to a private residence.

"This was about somebody saying something in private," Cianfrini said. "It was not something that was said in public, so it's not a free speech issue."

She was not the original ADA on the case, inheriting it after a change of venue from Le Roy to Town of Batavia, so the actual charge against Charvella wasn't a decision she made. During oral arguments, Cianfrini briefly raised the specter of filing a different charge, if necessary, against Charvella. Today, Cianfrini said there are no plans in the DA's officer currently to pursue the case further.

Alan Bedenko
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Of course there aren't. There are no valid or available charges left to file. Also, Yub Nub.
George Richardson
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"Cianfrini briefly raised the specter of filing a different charge." I say go ahead and charge him with something else, if you love funemployment for up to 99 weeks.
Justin Burger
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Yub Nub indeed.
Billie Owens
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What does Yub Nub mean?
Ed Gentner
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It wouldn't be ther first time a malicious prosecution was conducted in the name of the people by an over eager prosecuter. For the record unemployment in New York state is 90 weeks because our unemployment rate has dropped below 8% for a couple of months. Lets party like it's 1932 again.
Lorie Longhany
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From Wikipedia -- Ewok Celebration (also known as Yub Nub from its incipit, which means 'freedom' in Ewokese) is a musical theme recurring in the ending of the Star Wars film Return of the Jedi.
Phil Ricci
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Wow...Wikipedia has everything.
Brandon Burger
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I can't believe nobody posted this yet:
RICHARD L. HALE
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I don't think a prosecuter went after the Corona women with as much vigor as this one did going after Charvella. What has he got that Corona doesn't?
Chris Charvella
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"What has he got that Corona doesn't?" Chutzpah.
Kyle Couchman
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I was gonna say common sense (or an ewok) ..... but that works Chris
Lily Green
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Come on. There are plenty of more people and criminals in Genesee County than Chris Charvella to worry about. Stop trying to waste taxpayers' money in pursuing this! The judge made his decision so take a deep breath and move on.

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