(concurring in part and dissenting in part). It would be difficult to find the conduct by defendant detailed in the majority opinion admirable. But our very different task is to decide whether that conduct was properly treated as criminal. While I see no constitutional impediment to prosecuting conduct similar to defendant’s targeting Professor Schiffman as second degree identity theft — which requires for its proof evidence of intent to cause highly specific injury of a nonreputational sort — the particular counts of identity theft with which defendant was charged in the indictment’s top two counts were not sufficiently proved.
Turning to the remaining welter of convictions — all for misdemeanors — I agree with the majority that defendant’s convictions for aggravated harassment must be vacated and the corresponding counts of the indictment dismissed, since the statute *470under which those convictions were obtained, Penal Law § 240.30 (1) (a), is unconstitutionally overbroad. I also agree that there was a failure of proof as to whether defendant’s use of NYU computers was unauthorized within the meaning of Penal Law § 156.05. I, however, part company with the majority as to its dismissal of only some of the indictment’s criminal impersonation counts and its determination to leave defendant’s third-degree forgery convictions undisturbed.
In dismissing some, but not all, of the second-degree criminal impersonation (Penal Law § 190.25) counts, the majority expresses the view that, in addition to addressing impersonation intended to cause economic injury or to interfere with government operations — the objectives traditionally understood to inform the misdemeanor — the crime may also be premised on an intent to cause reputational injury. The statute, the majority holds, should be read to protect reputation when more than a prank is involved, since many people value reputation more than money, and since, as lago in a moment of famous irony remarks to Othello, “he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.” There is, of course, nothing in the language of the statute to prevent its use in the manner proposed by the majority— but that is the problem. The statute, as written, allows a criminal conviction for impersonation provided only that it is meant to be harmful or beneficial in any way. It is hard to imagine any pseudonymous communication that could not be prosecuted under this statute. And, in an age in which pseudonymous communication has become ubiquitous, particularly on the Internet, this statute, literally understood, criminalizes a vast amount of speech that the First Amendment protects.
The problem of the statute’s substantial overbreadth is not obviated by the Court’s pronouncement that the enactment should not be understood to criminalize conduct not intended to cause “real harm.” Apart from the fact that the distinction the majority has drawn does not render the statute benign, since many things said using an assumed identity are constitutionally protected from civil or criminal sanction, even though they are more than pranks and are intended to cause real harm or to obtain real benefit,* this prosecution’s use of the statute was not limited in the way the Court now says it should have been.
*471Although defendant, after the denial of his motion to dismiss on the ground, among others, of statutory overbreadth, sought to have the jury charged so as to limit the statute’s reach, the trial court’s charge did not do that and there is no basis now to suppose that the convictions at issue were rendered in observance of the distinction this Court has retrospectively drawn; five of the criminal impersonation convictions concededly were not, and it is entirely speculative that the remaining nine were.
The problem with the criminal impersonation convictions is not that they were insufficiently supported. The evidence as to each of the counts was more than adequate to prove the offense as defined in the statute and as charged. The reason that the convictions must be vacated and the corresponding counts dismissed is rather that the statute under which they were obtained is unconstitutionally broad, and substantially so.
The use of the third-degree forgery statute (Penal Law § 170.05) to the same end as the criminal impersonation statute is, I believe, similarly objectionable. Treating pseudonymous emails as forgeries when they are made with some intent to “injure” in some undefined way is no different than penalizing impersonation in Internet communication for the same amorphous purpose. Both treatments give prosecutors power they should not have to determine what speech should and should not be penalized.
If defendant has caused reputational injury, that is redress-able, if at all, as a civil tort, not as a crime. Criminal libel has long since been abandoned (see Garrison v Louisiana, 379 US 64, 69 [1964]), not least of all because of its tendency in practice to penalize and chill speech that the constitution protects (see Ashton v Kentucky, 384 US 195, 200-201 [1966]), and it has been decades since New York’s criminal libel statute was repealed. The use of the criminal impersonation and forgery statutes now approved amounts to an atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster.
I would dismiss the indictment in its entirety.
Judges Gkaffeo, Read, Smith, Pigott and Rivera concur with Judge Abdus-Salaam; Chief Judge Lippman dissents in part in an opinion.Order modified by vacating the conviction on counts 2, 3, 5, 23, 29, 40, 42, 44, 48 and 51 of the indictment, dismissing those *472counts of the indictment, and remitting the case to Supreme Court, New York County, for resentencing and, as so modified, affirmed.
It is difficult to imagine, for example, that an ill-intended, pseudonymously uttered comment about lago or his modern equivalent would be actionable civilly, much less criminally.