What type of Contact or Non Contact Establishes Second Degree Harassment: Defining the Scope of NY PL 240.26

Harassment in the Second Degree, New York Penal Law 240.26, is routinely an offense that is tacked onto a complaint alleging Third Degree Assault. While Assault in the Third Degree (New York Penal Law 120.00) is one of the most serious misdemeanor crimes, Harassment in the Second Degree has significant consequences, but is far less significant. Having said that, “less” significant” does not mean “insignificant.” In fact, a conviction for violating NY PL 240.26 not only carries a possible jail sentence, but on the more practical side of things there are sealing issues that permit this offense to linger on your “criminal record” for employers and government agencies to later see.

Briefly, you are guilty of Harassment in the Second Degree when you intentionally harass, annoy or alarm another person and you (1) strike, shove, kick or otherwise subject that person to physical contact or threaten to do the same. Alternatively, you (2) follow that person around public places or (3) you engage in a course of conduct or repeatedly commit acts that alarm or annoy that other person without any legitimate purpose. The purpose and issue that will be addressed in this blog entry is what kind of contact constitutes a violation of the first subsection of New York Penal Law 240.26(1), Harassment in the Second Degree?

In People v. Davon Simmons, 2012BX059103, NYLJ 1202631915888, at *1 (Crim. BX, Decided December 6, 2013), a complaint (an “information” as a matter of law) alleged that the defendant spit at a police officer and into that officer’s mouth and eyes. Further, the complaint stated that that “as a result of defendant’s aforementioned conduct, [the police officer] experienced annoyance, alarm and fear for his personal safety.” The defendant argued that the information was not legally sufficient and asked the court for a dismissal of the charges. Likely to the accused’s chagrin, the court denied the motion and found the complaint sufficient.

In upholding the complaint, the court noted that “…since the development of early common law, spitting has been recognized as an act sufficient to support a battery.” See, People v. Carlson, 183 Misc2d 630, 635, 705 NYS2d 830 (Crim Ct, NY Cty, 1999) (citations omitted).1 [There], the defendant was accused of spitting in the face of the complainant. The court noted that ‘(a)lthough minor, (spitting) is an application of force to the body of the victim, a bodily contact highly offensive…’ 183 Misc2d at 834, citing United States v. Frizzi, 491 F2d 1231, 1232 (1st Cir, 1974). Thus, in denying that defendant’s motion to dismiss the charge of Harassment in the Second Degree, the Carlson court found that ”spitting’ on the victim…is offensive physical contact.'” 183 Misc2d at 636. See, also, People v. DiBrino, 16 Misc3d 1106(A), 841 NYS2d2d 827 (Justice Ct, Village of Tuckahoe, 2007).

Although one could argue that spitting was not slapping, kicking, striking or punching, New York Penal Law 240.26 has a “catch all” phrase or language that encompasses this type of conduct. That language in substance refers to subjecting the target of your harassment to other physical contact. Obviously, “other” is a wide ranging term. To that end, the court followed up and stated that to find that spitting in the eyes and mouth of a police officer does not constitute (at least at this stage in the legal process) facial sufficiency in a complaint “would be a denial of common sense and firmly established principles of jurisprudence.”

Again, it is not atypical to find Harassment in the Second Degree as a charge in New York Criminal Court or any jurisdiction where a complaint alleges a violation of Third Degree Assault. It is almost as if in each of these cases, prosecutors give themselves room to fall back. That is, even if a fact finder does not believe a defendant caused physical injury to another or intended to cause physical injury, it is an easy “sell” for Assistant District Attorneys to convince a judge or jury that the defendant kicked, struck, hit or made some form of physical contact to the complainant with the intent to harass or annoy and without any legitimate purpose. The bar is much lower.

To read more about the varying misdemeanor and felony degrees of Assault in New York or the lesser, but serious, violation of Second Degree Harassment, review the links found throughout this blog entry.

New York criminal lawyers representing clients in all criminal offenses through the New York City area, the founding partners at Saland Law PC both served as Manhattan prosecutors under Robert Morgenthau prior to establishing the criminal defense practice.

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