Second Degree Aggravated Harassment, New York Penal Law 240.30, is one of the most widely charge crimes that often teeters between a violent and non violent offense. Not only are the alleged threats made in an NY PL 240.30 investigation relevant down to the exact words used and the context of declaration, but this offense is just as likely to involve a Desk Appearance Ticket based arrest as it is a Domestic Violence crime or charge. Just as local courts and attorneys have grappled with Second Degree Aggravated Harassment crimes, so has New York State’s highest court, the Court of Appeals. While the following is not an analysis of a Court of Appeals decision, this blog entry does address what constitutes a “true threat” and, pursuant to a different subsection of the crime, “no legitimate purpose” when establishing Aggravated Harassment in the Second Degree at the pleading stage of New York Penal Law 240.30 arrest.
In People v. Spruill, 2015NY032010, NYLJ 1202738658466, at *1 (Crim., NY, Decided September 22, 2015), it was alleged that the defendant harassed and insulted his wife on her cell phone by calling and texting her repeatedly. More specifically, the allegations in the information reflected that the defendant stated:
“I’m going to take your kids away. I won’t send you anymore money. When I see you I’ll punch you in the face. Watch your back. Bitch. Whore. Cunt.”
Further, the Domestic Incident Report, a/k/a DIR, reflected:
“My husband Kevin Spruill Sr, whom I am currently separated from since 11/20/13, has been harassing me through text messages and on going phone calls of him ranting about how much am no good, and that [I] am a bitch, and the only thing that was good for me worth having was the ass whopping that he gave me. I have told Kevin to stop calling and texting but he continues to fill my phone with all types of degrading things, name calling and he threatened to take everything away from me like our kids and house. He calls and text all hours of the night and day.”
While on its face, the above calls and texts are quite disturbing, that is not the legal standard.
Before continuing, the legal language for New York Penal Law 240.30 is directly related to the subsection charged by the police or prosecutors.
First, a person is guilty of PL 240.30(1) (a) when with the intent to harass, annoy, threaten or alarm another person, he or she communicates with a person by telephone, mail or other written communication in a manner likely to cause annoyance or alarm. Second, a person is guilty of PL240.30(1)(b) when that person initiates the same type of communication above, in a manner likely to cause annoyance or alarm. With the legal definitions behind us, lets move on to the issue at hand. Lastly, PL 240.30(2) involves these communications for no legitimate purpose.
In Spruill, the Court ultimately found the accusatory instruments, the “information”, legally insufficient due to the lack of a “true threat.” Pulling directly from the decision, the Court further explained:
A “threat” is a “communicated intent to inflict harm or loss on another or on another’s property.” People v. Williams, 46 Misc 3d 1208(A) (Crim Ct NY County 2015). Moreover, “true threats” encompass “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 1548 (2003). Where the language at issue “is incapable of constituting a true threat, as a matter of law, the complaint should be dismissed.” People v. Bonito, 4 Misc 3d 386, 777 N.Y.S.2d 900 (Crim Ct NY County 2004).
In People v. Orr, 47 Misc 3d at 1213(A) (Crim Ct NY County 2015), this Court extensively surveyed the landscape of “true threat” cases in New York. The Court determined that New York courts have consistently found that there is no “true threat” in those cases where the communication either did not contain a threat of future violence at all or the seeming threat was not sufficiently specific, and have consistently found that there is a “true threat” in cases where the communication conveyed a clear and unambiguous message that the recipient could not help but understand as a threat of future violence.
Moving from the “true threat” issue to that involving “no legitimate purpose”, the following is also a direct “theft” from the decision, but concise and easily digestible for those not familiar with the New York Penal Law and specifically PL 240.30(2):
Section 240.30(2) criminalizes those telephonic communications, whether a conversation took place or not, that lack any “expression of ideas or thoughts other than threats and/or intimidating or coercive utterances.” People v. Shack, 86 NY2d 529, 538, 658 N.E.2d 706, 712, 634 N.Y.S.2d 660, 666 (1995). Or, as the Court of Appeals put it in People v. Stuart, 100 NY2d 412, 428, 797 N.E.2d 28, 41, 765 N.Y.S.2d 1, 14 (2003), ” no legitimate purpose’ means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten.” Further, when determining whether the actions violate the New York Penal Law, courts examine the amount of communications by email, text or phone call, the timing, the content and even the context. Moreover, whether there was a demand to cease or stop is also an important question. Here, the complaint satisfied the facial sufficiency burden even if it failed to satisfy the other subsections of Second Degree Aggravated Harassment.
In every crime, specific words are actions are critical in determining the strength or weakness of the case. In crimes involving NY PL 240.30, it could not be more central. Always analyze the wording in a criminal court complaint or information with your criminal defense attorney.
To educate yourself further on Second Degree Aggravated Harassment, NY Domestic Violence Crimes or NY Desk Appearance Tickets, please review this blog or the websites and blogs listed below.
Crotty Saland PC is a New York criminal defense firm established by two form Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients throughout New York City and many suburban municipalities in Westchester, Rockland and Putnam counties.