Second Degree Aggravated Harassment: Is Threatening to Hurt Someone Always a Threat to Cause Physical Harm

While I certainly do not condone violence, if you punch someone two or three times in the face with a clenched fist, bloody up their mouth and cause them to go to the hospital for a stitch or two, an allegation of Third Degree Assault would likely survive a criminal defense attorney’s motion to dismiss the charge of New York Penal Law 120.00(1). No, it doesn’t mean you will not or cannot have defense at trial (self defense for example), but from a legal perspective your conduct satisfies the elements of the crime almost on its face. Again, you may still try, but seeking a dismissal for legal sufficiency will likely be quite difficult. Despite this, not all crimes or criminal conduct is so clear. When a court has to examine words used, the intent of those words and the reasonable implications of your speech, the court has much more to juggle than determining your intent when you balled up your fist. This more difficult type of review happens with a greater degree of regularity in cases involving Second Degree Aggravated Harassment pursuant to New York Penal Law 240.30. A class “A” misdemeanor, Aggravated Harassment in the Second Degree is a crime often seen, but is not exclusive to, New York Domestic Violence cases. Where an arrest or allegation does not involve a familial or intimate relationship, the police will consider issuing the accused a Desk Appearance Ticket. Regardless of how a PL 240.30 case is prosecuted, words, and how they are reflected in a criminal court complaint, matter. This blog entry will address how words and statements that may seem threatening on their face may not in fact violate certain sections of the New York criminal law.

Before addressing whether all threats on their face or certain words in the context of other conduct rises to the level of Aggravated Harassment in the Second Degree, it is critical to recognize two things about this entry. First, Merely because one particular subsection or crime is not violated it does not mean your conduct does not violate any offense. Further, while the legal decision I am about to review discuss a similar New York City Criminal Court case, neither decision is from an appellate court. That said…let’s get into the thick of it.

In pertinent part, you are guilty of PL 240.30(1)(a) if and when with the intent to harass another person, you:

“communicate[], anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person’s same family or household…and [you] know[] or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety or property, or to the physical safety or property of a member of such person’s same family or household.”

In People v. Grammatico, 2017 NY Slip OP 50000 (Webster Justice Court 2017), the defendant called up the complainant on the phone and stated: “I am going to hurt you and make you pay for what you did to me.” Sounds scary. Its certainly a threat of some type, right? Clearly, then, there is a threat to cause physical harm and the complainant had reasonable fear for her physical safety? Not so much…

According to the Court:

“[A] court need not evaluate a particular statement completely disconnected from other alleged statements set out in the accusatory instruments. To do otherwise is to ignore how the totality of the statements in question would be interpreted by a reasonable person to whom the statements were directed…[However], [e]ven taken as a whole, one is still left to wonder what were the intentions of the defendant.The word hurt in the current context can have a number of meanings, other than an intent to injure to person or property. It can be that he intends to hurt the relationship between Ms. Grammatico and the defendant’s father. It can be that the defendant intends to take legal action against her… The court’s analysis of the defendant’s statements cannot be reduced to guessing about the meaning of a defendant’s words or the defendant’s intentions. If either of those options become the case then the accusatory instruments lack the essential element of P.L. 240.30 (1) (a), that is ‘of a threat to cause physical harm'”.

Although the Court ultimately found the complaint to be legally insufficient, the defendant was left with a real humdinger (that is not a legal term, by the way). While PL 240.30(1)(a) may not have been legally sufficient, the prosecution could still potentially hang their hat on PL 240.30(3). Simply, the defendant may have won a battle, but lost the legal war.

To better understand criminal conduct in the context of Aggravated Harassment, PL 240.30, review the NewYorkCriminalLawyerBlog.Com, the content linked within this entry and the sites listed below.

Crotty Saland PC is a New York criminal defense firm representing clients in both domestic and non-domestic Aggravated Harassment cases in the New York City region. Both founding New York criminal lawyers served as prosecutors in the Manhattan District Attorney’s Office.

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