UPDATED 3:26 p.m., with clarification of a quote.
In the interest of justice, the aggravated harassment in the second-degree charges filed against political activist Chris Charvella should be dropped, Charvella's attorney argued in Town of Batavia Court this morning.
The hearing was prompted by the defense's motion to dismiss the case.
"If you allow this case to go forward, what is the public going to think?" Charvella's attorney, E. Robert Fussell, told Justice Mike Cleveland. "Are they going to trust a system where a politician is allowed to call the police and have a political opponent silenced?"
Assistant District Attorney Melissa Cianfrini, representing the people, argued that the case against Charvella is neither political nor does it conflict with the First Amendment.
The case is entirely about Charvella's conduct, Cianfrini argued. The key question is whether that conduct violates the harassment, 2nd, statute against making phone calls with no legitimate purpose.
Charvella is accused of placing a phone call to Legislator Jay Grasso and leaving a message on his answering machine. The message said, "Thank you for reading my blog."
Cianfrini argued that the message had no legitimate purpose and taken within the context of comments made by Charvella on The Batavian and on his own blog, constitutes an attempt to threaten and intimidate Grasso.
"What Mr. Charvella did was serious," Cianfrini said. "It wasn't a light moment. He wasn't trying to be funny. It was serious and if you look at the whole body of conduct, it is serious."
In order for the case to be considered serious, Fussell argued, the conduct of Charvella would have to be seen by a reasonable person as intimidating. Just because the alleged victim, he argued, felt alarmed doesn't mean the conduct is in fact harassing.
"Mr. Grasso is either an exceptionally sensitive person who is easily frightened, or he is acting to shut out Mr. Charvella from the political process," Fussell said.
A key fact disputed during the hearing was the timing of the phone message in relation to a post Charvella did with a picture of an Ewok with the caption, "Prepare your anus."
Cianfrini said the posting of the picture followed by the phone message was clear evidence that Charvella intended to intimidate Grasso.
Fussell countered that the Ewok picture was posted after the phone call, so Grasso could not have seen the picture before getting the phone message.
To which Cianfrini replied that if that's the case, Charvella's conduct potentially constituted a threat.
Fussell quickly replied that Charvella hadn't been charged with such a crime.
"If those are the facts that come out at trial, the people reserve the right to file that charge," Cianfrini said. "He's on notice."
A few times during the oral arguments, Cianfrini made the point that Grasso wasn't acting in his capacity as a sitting legislator, so the First Amendment didn't apply to the case.
The events around the case were entirely personal, Cianfrini argued, and not about politics or anything Grasso did as a government official.
"That’s what the First Amendment deals with, the government not
politics the placement of a political sign or personal conflicts," Cianfrini said.*
And even if it is a political issue, Cianfrini said, the case isn't about the content of any postings or messages. It's about Charvella's conduct, which Cianfrini argued, was clearly intended to intimidate and harass Grasso, causing him to feel alarmed.
One key piece of evidence not available in the case, Fussell complained, is the phone message itself. The recording was not preserved.
Fussell said the recording would provide important context to the message -- what was Charvella's tone of voice? Was it threatening? Was it humorous?
It's hard to believe, Fussell said, given Grasso's background in law enforcement, that he didn't know to preserve the evidence.
Cianfrini said Grasso's law enforcement training is irrelevant to the case and that the recording is not needed since Charvella doesn't dispute the fact that he left the message.
As the oral arguments before Justice Cleveland wore down, the tensions between the attorneys intensified.
A couple of times near the close, Fussell made the point that if the case goes forward, Charvella will incur significant legal expenses (Charvella has already spent $7,000 on the case) while Grasso is getting the services of Cianfrini for free.
"That's not accurate, you're honor," Cianfrini said. "I take exception to that remark, I represent the people of the State of New York and I can't stand here and let that go on the record."
*NOTE: Quote clarified after further discussion with Melissa Cianfrini.