Fighting Words, Freedom of Speech and New York’s Second Degree Aggravated Harassment Statute: NY PL 240.30

The crime of Aggravated Harassment in the Second Degree (Penal Law 240.30(1)) has evolved over the years as the Court of Appeals has removed part of the statute and others have been added by the legislature. One thing that has not changed, however, is how serious penalties can range if you are convicted of PL 240.30 whether you are arrested with a Desk Appearance Ticket (DAT) or processed on a Domestic Violence related case.

Briefly, you are guilty of Aggravated Harassment in the Second Degree (Penal Law 240.30(1)) if (and only if) an Assistant District Attorney proves beyond a reasonable doubt that “(1) with intent to harass another person; (2) the actor communicates, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, a threat to cause physical harm to … such person; and (3) the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety…”

In order for speech to lose First Amendment protections, in the context of Second Degree Aggravated Harassment, the speech must qualify as “fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct.” If speech does not qualify as one of the proscribed categories of prohibited speech then it is protected by the First Amendment. This naturally leads us to the question of just what qualifies as prohibited speech for the purposes of Aggravated Harassment in the Second Degree. The case of People v. Tackie provides us with a great example of what kind of speech warrants First Amendment protections in this context.

In People v. Tackie the defendant was speaking with the complainant on the telephone. At one point during their telephone conversation the defendant became agitated and stated “DON’T LET ME USE MY BOXING ON YOU.” The defendant was subsequently arrested and charged with Aggravated Harassment in the Second Degree (Penal Law 240.30(1)) and Harassment in the Second Degree (Penal Law 246.26(1)). Following the arrest the defendant’s attorney filed a motion for both charges to be dismissed for a lack of facial sufficiency. For an accusatory instrument to be facially sufficient it must contain non-hearsay allegations that establish every element of the crimes charged.

Since both charges were based wholly on verbal threats the  court had to determine if the defendant’s words constituted “fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct.”

The Court here ruled that the defendant’s words did not constitute any of the aforementioned proscribed speech. The Court also held that the defendant’s statement could not be reasonably interpreted as a clear and present danger of some serious substantive evil, sufficient for criminal liability to attach. These statements were obviously not a “true threat” because no reasonable recipient could interpret them as a true threat of injury regardless of the defendant’s alleged intent to convey a true threat.

It is important to recognize that the call from the phone, without an actual threat of immediate action or any action, is quite different than if the defendant had made a threat in person, clenched a fist or even was more specific in what he claimed he was going to do, how he was going to do it and when he was going to hurt the complainant. Because the nature of a NY PL 240.30 crime often hinges on the words used and the context of those words, an analysis of the particular allegations in your case with your own criminal defense lawyer is essential. Tackie, however, may be part of your discussion.

To learn more about Second Degree Aggravated Harassment, review the countless blog entries on the NewYorkCriminalLawyerBlog.Com as well as the Crotty Saland website.

A criminal defense firm founded by former Manhattan Assistant District Attorney’s, the New York criminal defense lawyers at Crotty Saland PC represent clients in PL 240.30 arrests and crimes throughout the New York City area.

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