Attorneys react to decision dismissing case against Chris Charvella
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.