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Second Degree Aggravated Harassment

Aggravated Harassment in the Second Degree: New York Penal Law Article 240.30

Without any statistic to back up such a claim, based on our experience as criminal lawyers and former prosecutors, Aggravated Harassment in the Second Degree, New York Penal Law 240.30, is one of the most commonly charged crimes and arrests in both the Domestic Violence arrests and non-familial context throughout New York.

Definitions and Elements

The criminal allegations that lead to an arrest often involve calls, emails, physical threats or a combination of these actions and other behaviors.

Broken down into five distinct subsections, each category or theory of a Second Degree Aggravated Harassment generally involves an intent to harass another person followed by specified conduct.

Penal Law 240.30(1)(a)

If you have the intent to harass another person, whomever he or she may be, and you do so by communicating anonymously or by identifying yourself through the telephone, computer, mail or any electronic means, a threat to cause physical harm or unlawful harm to the person or property of such a person (or a member of their family or household), you are guilty of this offense The additional caveat is that you must also know or reasonably should know that your communication will cause him or her reasonable fear of this harm of physical safety or property damage.

Penal Law 240.30(1)(b)

Tracking the same language as subsection (1)(a), subsection (1)(b) deviates in a critical manner. You are guilty of this offense if you cause a communication to be initiated as opposed to merely being involved in a communication. Again, the same types of communications, threats, and knowledge are required by law.

Penal Law 240.30(2)

Slightly different than the previous subsections, subsection (2) makes it a class “A” misdemeanor to make a telephone call, even if you never speak, where you have no legitimate purpose in doing so and instead have an intent to harass or threaten the person on the other end of the phone. Again, this offense has same force and effect as any other section of this statute.

Penal Law 240.30(3)

A violation of and an arrest for this subsection occurs where you intend to harass, annoy, threaten or alarm another person but you don’t necessarily commit Third Degree Assault, Penal Law 120.00, and cause a physical injury. Instead you merely strike, kick or subject another person to physical contact. Even threatening this behavior violates the statute. The critical element that must also be part of your conduct is that you must act this way because you believe or have a perception regarding the other person’s race, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation regardless of whether or not you are correct.

Penal Law 240.30(4)

This last section shares elements similar to Assault in the Third Degree in that the subject of the attack must suffer a physical injury even if there was not intent to do so. Assuming the person who is the recipient of your strike, kick or other physical contact is a member of your family or household (this legal definition is much broader than its common meaning) you are guilty of this crime.

Penalties and Punishment

Sometimes the criminal allegation involves calls, emails or physical threats, but assuming the elements are met, the crimes that make up Second Degree Aggravated Harassment all have the same penalty. A class “A” misdemeanor, a conviction can leave you incarcerated for as long as one year in jail, on probation for an extended time and, of course, with a permanent criminal record.

Example and Hypothetical Scenario

How an arrest plays out is dependent on many factors. Your criminal defense attorney will likely attack your arrest and prosecution in different ways depending on the theory pursued by law enforcement. After all, whether you are charged with a Domestic Violence crime, a physically violent offense, or a crime perpetrated solely online or through a telephone requires distinct strategies. Perhaps the most frequently charged basis for an Aggravated Harassment offense is where one party communicates with another person over the internet or on the phone and makes threatening statements or continues to contact the person after they've been told to stop. This may sound innocuous enough, or commonplace in this day and age, but make no mistake – this simple conduct can amount to a criminal offense.

In no particular order, if you and your accuser are strangers, there are no genuine injuries or threats raising significant concerns, and you reside locally in the New York City area, the NYPD may arrest and assign you a Desk Appearance Ticket. Regardless of whether your alleged actions were telephonic or physical and irrespective of where your case occurs in White Plains, Nyack, Manhattan, Brooklyn, Queens or elsewhere, if you are in an intimate relationship with your accuser or are family members, then the police will classify your crime as Domestic Violence with an accompanying mandatory arrest. Further, in all contexts, the District Attorney will almost always ask a Criminal Court Judge to issue an order of protection.

Related Offenses and Collateral Issues

One of the offenses perhaps most closely associated and charged along with Aggravated Harassment is Criminal Contempt. Because these cases often arise in the matrimonial, boyfriend/girlfriend context, there is often an existing Order of Protection either from a Criminal Court or the New York state Family Court. When this is the case, an Aggravated Harassment arrest and charge would typically be accompanied by a Contempt charge, since the new alleged crime would also amount to a violation of the existing Order of Protection.

Your Case, Your Defense, Your Future

Again, defenses are directly tied to the particulars of the charges filed. Do you want to find out if there is a video corroborating your defense or challenging the complainant’s allegations? Are there witnesses? If the crime involves the internet, phone, or other electronic communication, what records exist that could fortify your defense or poke holes in the prosecution’s theory and the credibility of their witnesses?

Whatever the circumstances surrounding your arrest, before speaking to the police seek the advice of an attorney versed in the criminal law. Exercise your right to remain silent. Whether considered a Domestic Violence crime or not, an arrest for and accusation of PL 240.30 is debilitating from careers and criminal records to immigration and professional licensing. When accused of a crime, the foundation of your best defense is the experience, knowledge, and advocacy of the New York defense lawyers and former Manhattan prosecutors at Saland Law.

Call our New York criminal defense attorneys and former Manhattan prosecutors at (212) 312-7129 or contact us online today.

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