Depending on the side of the law you stand (the defendant arrested for Aggravated Harassment in the Second Degree or the complainant accusing you of violating New York Penal Law 240.30), the evolution and changes to this crime is either concerning or welcomed. As initial matter, some things have not changed. For example, not only are many of the subsections or theories the same as they were years ago, but if you are given a Desk Appearance Ticket for PL 240.30 or you are run through the entire underbelly of the New York Criminal Justice System for Second Degree Aggravated Harassment, the potential sentence and punishment is one year in the local slammer.
One “type” of Aggravated Harassment in the Second Degree that has not changed is that which involves some form of physical contact (the statute also allows for other crimes that do not involve physical contact). “Physical contact,” however, may not always be what it seems. A slap or punch? Certainly, but what about less clear and decisive contact? In People v. Carlson, 705 N.Y.S.2d 830 (Crim. Ct., NY Cty., 1999), the defendant was charged with Aggravated Harassment in the 2nd Degree (Penal Law 240.30(3)), Harassment in the 2nd Degree (PL 240.26(1)), and Menacing in the 3rd Degree (PL 120.15) when he allegedly directed racial slurs toward a complainant, including calling him a “nigger,” and then spit in the complainant’s face. The Court, in this case, was tasked to tackle the following issue: “whether defendant’s alleged act of spitting in the informant’s face subjected the complainant to ‘physical contact’ within the meaning of [PL 240.30(3)]. Defendant moved to dismiss all three charges.
In relevant part, a defendant is guilty of Second Degree Aggravated Harassment (PL 240.30(3)) when “with intent to harass, annoy, threaten or alarm another person he or she…(3) strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of the race, color, religion or national origin of such person.” The intent of this statute is to “prohibit [violent conduct] and physical intimidation based upon bigotry,” People v. Grupe, 532 N.Y.S.2d 815 (Crim. Ct., NY Cty., 1988).
The Court, in addressing the issue in this case, wrote that the “legislature intended the language ‘or otherwise subjects another person to physical contact’ to be a catchall provision.” While noting that it would be “impossible” for lawmakers to contemplate every single instance of physical contact, the Court emphasized “spitting has long been recognized as an act sufficient to support a battery” People v. Peck, 260 Ill.App.3d 812, 814 (1994). Here, the defendant made physical contact with complainant when he spit on him as well as directed racial epithets towards complainant, thus creating a “viable inference that the conduct was racially motivated.” Since each element of this statute was met, the Court upheld the charge.
Addressing Harassment in the Second Degree (PL 240.26(1)), the Court wrote that “a person is guilty of [this charge] when, with intent to harass, annoy, threaten or alarm another person: (1) he or she strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same.” In this case, the Court reasoned that since defendant’s racial slurs were coupled with him spitting upon the victim (which, as noted above constitutes “physical contact”), the charge must be upheld and put before a fact finder. Therefore, the Court denied defendant’s motion as to this allegation.
Finally, the Court directed its attention to Menacing in the Third Degree (PL 120.15). A defendant is guilty of violating this statute when, “by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.” A key element in this scenario is “physical menace.” To better understand what Menacing in the Third Degree is, the Court wrote that menacing occurs when “a person who, with intent to frighten another, points a gun at him which is in fact unloaded though not known by the victim to be so” Donnino, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 39, Penal Law §120.15, at 203.
With that being said, the Court continued to write that although the physical contact in this case may be offensive, it does not rise to the level of physical menacing. Furthermore, no physical injury, serious or not, could arise from defendant spitting on the victim. Therefore, “some other act must transpire before the complainant could reasonably fear serious physical injury or physical injury.” Accordingly, the Court granted defendant’s motion in this regard and dismissed the menacing allegation.
To learn more about Aggravated Harassment in the Second Degree and Menacing in the Third Degree, please follow the links above and review the blogs and websites below. There you will find helpful, pertinent and easy to read information about these crimes.
A New York criminal defense firm, the New York criminal lawyers at Crotty Saland PC served as Manhattan prosecutors before representing the accused as criminal defense attorneys.