Second Degree Aggravated Harassment, New York Penal Law 240.30, is a fairly common misdemeanor crime charged by the NYPD and prosecuted by Assistant District Attorneys throughout the City of New York. A common Domestic Violence crime, but not always a “DV” offense, an arrestee can be prosecuted by means of a trip to Central Booking for up to 24 hours or a Desk Appearance Ticket whereby the accused merely spends a few ours in custody at the precinct of arrest. Simply, none of these scenarios is appealing.
Not a full analysis of all legal challenges and issues associated with NY PL 240.30, the question addressed by this blog entry briefly touches on what constitutes free speech and whether one communication can be grounds for committing Second Degree Aggravated Harassment if it is not a “true threat” of physical harm.
In People v. DePasquale, the Brooklyn Criminal Court dismissed a complaint for facial insufficiency, based on one text message, holding that the text message was protected by the First Amendment. As addressed in other blog entries and at CrottySaland.Com, the crime of Aggravated Harassment in the Second Degree, PL 240.30, occurs when a person contacts another by telephone, computer or other electronic means, with a threat to cause physical harm to, or unlawful harm to the property of such person. With modern technology this can be done by a variety of ways. In the DePasquale case, the defendant asserted that the text message sent was protected as free speech by the First Amendment because the free speech clause of the First Amendment protects most free expressions of speech. The New York State Constitution fortifies this in stating that “Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” NY Constitution Art I, Section 8. However this is not unlimited.
It begs the question, how far does the protection of the First Amendment extend and when does speech become criminal? The Court in DePasquale, found that the single text message did not constitute a true threat to cause physical harm and was an unclear message, subject to varying interpretations. The Court elaborated in stating that the accusatory instrument failed to allege that the defendant communicated a true threat of either immediate or future physical harm when he texted, “You ain’t low and watch when I find you, come outside, leave the kid.”
In using this new case as a guide, in order to have a sufficient complaint the prosecution must allege that there was a “true” or “genuine threat” of physical harm. Here, the phrase “watch when I find you” is not one that naturally tends to evoke immediate violence because it is unclear what is actually being threatened. A true threat is “serious, should reasonably have been taken to be serious or was confirmed by other words or acts showing that it was anything more than a crude outburst.” DePasquale, citing People v. Dietze, 75 NY2d 47, 51 (1989).
The standard is subjective, but when charged with Aggravated Harassment, whether DV or otherwise, one of the critical issues to examine is if the statement in question crosses the line of a “true threat” or merely is unwelcome, but sanctioned and constitutionally protected as free speech.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors dedicated to representing clients accused of crimes throughout the New York City area.