A few years ago the New York State Legislature tightened up the Second Degree Aggravated Harassment crime found in the New York Penal Law. Whether by Desk Appearance Ticket in Manhattan or by Domestic Violence Arrest in Brooklyn, the law was no longer vague. More specifically, addressing solely subsection (1)(b) or New York Penal Law 240.30, it is a class “A” misdemeanor if you have an intent to harass another person and you cause a communication to be initiated by telephone, email, or any electronic means. This communication must be a threat to cause physical injury or unlawful harm to the person or property of that person or a member of his or her family or household. Moreover, when making your communication you should reasonably know that it will cause a reasonable fear of such an injury or harm.
Well, if that isn’t wordy enough, let’s try to get right to the point of this blog. Simply, what type of speech or statements violate PL 240.30(1)(b) and when does your language necessitate the assistance of a criminal defense attorney to challenge the legal sufficiency of a complaint you face in a New York criminal court?
In People v. Powell, 2016NY Slip Opinion 51629 (N.Y.C. Criminal Court 2016), the defendant was arrested for Second Degree Aggravated Harassment in the Bronx after the complainant accused him of calling her cellular phone multiple times pursuing a romantic relationship. The complainant told the defendant to stop calling and eventually contacted the police. When the defendant learned of this, he called her again and stated in substance: YOU FUCKING BITCH NOW YOU GOT THE COPS INVOLVED, DON’T LET ME GET YOU, WHY ARE YOU LYING, I DON’T KNOW WHO YOU THINK YOU ARE, REMEMBER YOU HAVE [T]O PASS AROUND WHERE I SEE YOU.
Now, I think we can all agree that the accused should have stopped well before he let his temper get the best of him. Further, we can likely all agree that the apparent threat seems scary. That, however, is not the issue nor the standard. The question for a judge to review is whether or not these statements are criminal.
As recognized by the Court, the question before it was whether the above statements satisfied the elements of PL 240.30(1)(b) as follows: (1) intent to harass another, (2) causation of a communication, (3) of a threat to cause physical harm, and (4) knowing or having reason to know that the recipient of the communication will reasonably fear harm of physical safety.
A direct cut and paste from the decision begins to answer this question:
“Only particular kinds of communication may be prohibited, such as “fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct” (People v Marquan M., 24 NY3d 1, 7 ). True threats are those that “by their utterance alone, inflict injury or tend naturally to evoke immediate violence” (People v Golb, 23 NY3d 455, 467 , quoting Dietze, 75 NY2d at 52). In order for a communication to qualify as a true threat, “an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury” (People v Olivio, 6 Misc 3d 1034 [A] [Crim Ct, NY County 2005] [internal citations omitted]). Furthermore, a true threat is one that is “clear, unambiguous, and immediate” (People v Orr, 47 Misc 3d 1213[A] [Crim Ct, NY County 2015]; People v Brodeur, 40 Misc 3d 1070, 1073 [Crim Ct, Kings County 2013]).”
Turning to the allegations against Powell, the statement was not a true threat of inevitable and unequivocal physical harm to the complainant even if it was intimidating or unnerving. Free and clear? All done? For better or worse, good or bad, the answer for Powell was no. Why? While these words may not have violated PL 240.30(1)(b), the defendant did run afoul of Second Degree Aggravated Harassment. How? PL 240.30(2). The elements of this subsection are quite different while still being the same crime. Subsection two mandates that “[w]ith intent to harass, or threaten another person he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.”
In this particular case Powell went from the frying pan to the fryer. Arguably he won a battle and lost the war. That said, the facts and evidence in every case are unique. It may be that your criminal lawyer has grounds to challenge the multiple subsections of a particular statute or that you only face one charge. Whatever your circumstances, examine your case with your criminal defense attorney and determine whether or not Powell can protect you from a legally insufficient accusation.
Crotty Saland PC is a New York criminal defense law firm representing clients for Aggravated Harassment and similar crimes throughout New York City, Westchester County and many other suburban municipalities in both Desk Appearance Tickets and Domestic Violence situations. The founding New York criminal lawyers served as Manhattan prosecutors prior to establishing the law practice.