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Second Degree Harassment: What Can Happen to an NY PL 240.26 Charge When Your Initial Arrest was Unauthorized

While some New York criminal lawyers, prosecutors and judges use the term “fruit of the poisonous tree,” the wording is not nearly as important as the concept in criminal law. That is, if initial conduct by a police officer is unauthorized, for example, the recovery of contraband or property may not be used against the accused. On a similar note, if the police made an unlawful arrest and you refuse to be handcuffed during that unauthorized arrest, then the charge of Resisting Arrest, pursuant to New York Penal Law 205.30, is not sustainable (Keep in mind that such a determination is not always clear. Certainly, resisting at the time of your arrest because you believe that the arrest is unauthorized is not a smart thing to do!). This blog entry will deal with a similar variation of this theme while addressing the violation of Harassment in the Second Degree pursuant to New York Penal Law 240.26(1).

By way of background, and before addressing the legal decision on this topic, a person is guilty of Harassment in the Second Degree (NY PL 240.26) if and when that person has the intent to harass, annoy or alarm another person and, according to subsection one, that person strikes, shoves, kicks or subjects that other person to any physical contact. Further, attempting or threatening to do the same is sufficient to form the basis of Second Degree Harassment.

In People v. Ebony Traber, 2010-2929 K CR, NYLJ 1202560324383, at *1 (App. Trm., 2nd, 11th & 13th J.D., Decided June 12, 2012), the defendant was convicted after a bench (non-jury) trial of Harassment in the Second Degree and acquitted of crimes including Attempted Assault and Menacing. It was alleged by prosecutors that the defendant made “rude remarks and gestures” and was then advised by a police officer that she was to be issued a summons or placed under arrest for that behavior. Having none of that, the defendant walked away nearly twenty five feet and into the vestibule area of a building. At that time, a police officer came up from behind the defendant and attempted to arrest her. The defendant, over the course of about two minutes, struggled with the police officer and bent that officer’s finger back. The defendant further stated “I’m going to punch you in the face.” With these facts, the trial court found the defendant guilty of NY PL 240.26(1) because her words and actions during the arrest satisfied the elements of intending to harass or annoy, but that the police lacked probable cause to initially arrest the defendant because her rude words and gestures were protected speech. As a result, the Court acquitted the defendant of the Attempted Assault and Menacing charges.

The issue addressed by an appellate court (in a round about way) was whether or not the Second Degree Harassment could stand alone because the initial police conduct was not authorized. The Court found that:

“[W]e find that defendant’s intent, in the brief struggle initiated without warning by the officer, may be more properly characterized as an intent to keep herself upright, to avoid injury, and to get free from the person who had grabbed her unexpectedly from behind — that, in essence, she evinced a lawful intent to resist an unauthorized arrest (see People v. Ramos, 3 Misc 3d 127[A], 2004 NY Slip Op 50324[U] [App Term, 1st Dept 2004]; cf. People v. Sanza, 37 AD2d 632, 634 [1971]).” In other words, because the initial arrest was not legal, her intent at the time of that unauthorized arrest was not to harass or annoy the police officer, but to resist an unauthorized arrest. Although not charged with Resisting Arrest, the legal concept is generally the same as addressed above.

It is critical to understand the legal concepts and theories here. Not only does this case help demonstrate what is and what is not Second Degree Harassment (in a fact specific situation), it also briefly examines the legal ramifications of an unlawful arrest by the police. Remember, DO NOT take the law into your own hands by resisting an arrest you believe to be false. While it may be that your belief is founded and proper, should it not be and the legal analysis is unfavorable to you, you can face many more charges beyond your initial conduct.

To find out more about Assault, Menacing, Harassment, Resisting Arrest or any other criminal charge found in the New York Penal Law, please review the Crotty Saland PC website and the NewYorkCriminalLawyerBlog.Com. Linked below, these resources are a tremendous starting point to begin your education on New York criminal law.

Crotty Saland PC is a New York criminal defense firm representing clients throughout New York City, Westchester County and other suburban jurisdictions. Founded by two former Manhattan Assistant District Attorneys, the New York criminal lawyers at Crotty Saland PC represents clients at all stages of criminal litigation from investigation through trial.

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