What Types of Statements on Their Face Are Sufficient Threats for the Purpose of Second Degree Aggravated Harassment, PL 240.30(1)(b)

Whether its in the context of a Domestic Violence case with a former partner or lover or a co-worker in Manhattan, Queens or Brooklyn, those nasty, threatening or plain ugly and uninvited texts, emails or phone calls may be more than a mere annoyance. In fact, depending on the conduct, you will be arrested, you will see a judge and you will need a New York criminal defense lawyer experienced in and knowledgable about Aggravated Harassment in the Second Degree, New York Penal Law 240.30. Let’s be very clear. Second Degree Aggravated Harassment is a serious crime. The NYPD will arrest you based on an allegation. If there is corroboration or you make an admission, things can go from bad to worse. A class “A” misdemeanor, NY PL 240.30, although unlikely, could land you in a jail for up to one year even if you receive a Desk Appearance Ticket.  Because of the severity and seriousness PL 240.30, this blog entry will attempt to further explain what conduct rises to criminal activity.

In People v. Rodriguez, 2015BX007977, NYLJ 1202734639229, at *1 (Crim., BX, Decided July 30, 2015), prosecutors charged the defendant with violating New York Penal Law 240.30(1)(b), Second Degree Aggravated Harassment. A criminal court complaint, called an information, accused the defendant of calling the complainant and stating over the phone: I SEE YOU ARE NOT WEARING THE BLACK BOOTS THAT YOU WERE WEARING EARLY THIS MORNING WHEN YOU DROPPED OFF JALISSA. I AM GOING TO BEAT THE FUCK OUT OF YOU. It is the asserted in the accusatory information that this conduct and phone call caused the complainant to fear for her safety.

As broken down fairly succinctly by the Court, the elements of PL 240.30(1)(b) are (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. However, “[u]nless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized” (People v. Dietze, 75 NY2d 47, 51 [1989], citing Terminiello v. Chicago, 337 US 1, 4-5 [1949]).

As such, in order for calls, texts, emails and other communications to rise to the level of Second Degree Aggravated Harassment, a very unique category of words are prohibited including “fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct” (People v. Marquan M., 24 NY3d 1,7 [2014]). Even then, the type of threat or communication are such that “by their utterance alone, inflict injury or tend naturally to evoke immediate violence” (People v. Golb, 23 NY3d 455, 467 [2014], quoting Dietze 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], *2 [Crim Ct, New York 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], *2 [Crim Ct, New York County 2015]; People v. Brodeur, 40 Misc 3d 1070, 1073 [Crim Ct, Kings County 2013]; People v. Yablov, 183 Misc 2d 880, 886 [Crim Ct, New York County 2000]).” (Note that much of this is either paraphrased or quoted directly from the decision).

Although almost laughable to hear due to the obvious nature of the language, in finding the accusatory information legally and facially sufficient, the Court noted, ‘[b]eating the fuck out of someone’ is a statement that a reasonable listener would consider a true threat of physical injury.” Um, yah. The Court then opined that “[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’ (Dietze, supra at 53-54). Defendant’s statement also does not fail for lack of immediacy. True threats are not required to convey an exact time and place where the threatened harm is to be inflicted (See People v. Delarosa, 47 Misc 3d 1213[A] [Crim Ct, Bronx County 2015]; Olivio at *3).”

This particular case demonstrates how words have consequences. There was a threat of violence with a degree of immediacy. As I repeat like a broken record, each case is unique and requires an analysis of the particular allegations contained on the criminal complaint.

To learn more about Second Degree Aggravated Harassment, Domestic Violence crimes in New York, Desk Appearance Tickets or other offenses in the New York Penal Law, please review the links and material found here and below.

Saland Law PC, a New York City based criminal defense law firm, was founded by two New York criminal defense attorneys who served in the Manhattan District Attorney’s Office.


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