Second Degree Aggravated Harassment: NY Penal Law 240.30

A common crime charged throughout the City of New York, the Hudson Valley and the rest of New York State, Second Degree Aggravated Harassment may not be felony crime, but a misdemeanor offense that can, and often does, have significant consequences. Be neither naïve nor cavalier. If you are arrested for and charged with New York Penal Law 240.30, you should expect that even if you are completely innocent and the accusation is ultimately determined to be unfounded or exaggerated, when you are arraigned in a New York Criminal Court with your defense lawyer at your side, the judge overseeing your case will more than likely issue an order of protection, aka, restraining order, and you will be precluded from contacting or communicating the complainant. Yes, you are presumed innocent, but as your criminal lawyer will explain, whether the arrest and processing of your Desk Appearance Ticket is in Manhattan, Brooklyn, Queens or the Bronx, both prosecutors and judges will initially default to the side of an alleged victim until you and your attorney challenge the allegations in a convincing manner. Complicating matters, if you are arrested for PL 240.30 and the allegation of Aggravated Harassment in the Second Degree involves a family member or is in the domestic violence context, the NYPD or other municipal police department will not issue a Desk Appearance Ticket, but instead haul you off to jail where you will wait to see a judge.

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You violate the crime of NY PL 240.30(1)(a) if with the intent to harass another person, you communicate, by telephone, 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 another person, his or her family, or unlawfully harm their property. Further, when doing so, you must know, or reasonable should know, your actions will cause your target to have a reasonable fear of harm of physical safety to himself or her property. Slightly different, you commit the crime of NY PL 240.30(1)(b) where instead of actually communicating you cause the initiation of communications in any of the described manners.

Pursuant to NY PL 240.30(2), if you have the intent to harass or threaten another person and you make a telephone call to him or her, irrespective of whether that person engages you in a conversation, you commit this misdemeanor crime. An added piece to this criminal puzzle, the charge could only stand as long as you had no legitimate purpose for your phone call. Different once again, NY PL 240.30(3) codifies Second Degree Aggravated Harassment where with the intent harass, annoy, threaten or alarm another person, you strike, shove, kick, or otherwise subjects that person to physical contact, or attempt to or threaten to do the same. The reason why you are doing this, as required by the New York Penal Law, must be because a belief or perception regarding that person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation. It is irrelevant whether or not your belief or perception is correct.

While not the final subsection of Second Degree Aggravated Harassment, the last commonly charged “version” of this crime is NY PL 240.30(4). Again, with the intent to harass, annoy, threaten or alarm another person, if you strike, shove, kick or otherwise subject another person to physical contact and cause a physical injury to that person or to a family or household member of such person, you will face up to a year in jail.

A misdemeanor crime in New York, an arrest and ultimate conviction for PL 240.30 in either the non-domestic Desk Appearance context or in the domestic violence arena is generally the same. First, a misdemeanor conviction is never expunged. As such, if you are convicted whether by plea or a post-trial finding of guilt, future employers, professional licensing agencies, and both the State of New York and the United States Government will all be able to see the arrest, arraignment and conviction charges. How could your life go from bad to worse? A plea or conviction, even without incarceration or probation, will adversely impact your legal status whether you have a Green Card, H-1B visa or F-1 visa. Simply, a conviction for Second Degree Aggravated Harassment by itself, even without jail or supervision of any kind, has potentially life altering ramifications.

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If no jail is bad, all parties would likely agree that imprisonment is far worse. The New York Penal Law allows for a sentence of up to one year in jail post PL 240.30 conviction. This means a court can sentence you to no jail, three months, nine months or up to twelve months in the county “lock up.” Your criminal defense attorney need not tell you that one year, let alone one minute, on Rikers Island is one minute too long. The same holds true for the Westchester County Jail or any other local detention center. Beyond jail and potential issues of bail that could keep you in custody during the pendency of your criminal case, sentences can include three years probation, conditional discharges where treatment of some kind is mandated, community service, restitution and fines.

Regardless of the sentence, know that just as prosecutors and judges will routinely request and issue orders of protections respectively at your arraignment, at the time of sentence you should expect the same. Fortunately, in advance of your sentencing and the issuance of the restraining order or when you are sentenced by a judge, your criminal attorney may be able to secure a limited order of protection to allow certain contact or make the restraining order subject to other court proceedings.

Because Second Degree Aggravated Harassment routinely involves phone calls, texts, social media and emails, you and your criminal defense lawyer should examine how the prosecution connects you to the criminal conduct in violation of PL 240.30. Did the District Attorney obtain subscriber information for your cell phone or IP information related to emails? Are there voice recording or is the complainant merely asserting you contacted him or her from a blocked number and recognizes your voice? Even assuming the police and District Attorney can identify you as the alleged perpetrator of Second Degree Aggravated Harassment, did you have the intent to harass, threaten or annoy? Instead, did you have a legitimate purpose?

The potential defenses are many, but each defense to a Second Degree Aggravated Harassment arrest rises or falls on the facts and evidence in your particular case and the criminal defense attorney you retain as your advocate. Maybe in lieu of attacking the allegations through your own evidence and legal challenges, you mitigate your conduct. Whatever your defense may be to secure a dismissal, adjournment in contemplation of dismissal (ACD), Disorderly Conduct or other non-criminal disposition, depends on the steps you take and when you take them. The right criminal defense attorney can mean the difference between a life altering criminal conviction and a future free shame, embarrassment and regret.

Identify your best defense and the criminal defense lawyers to protect you. When charged with a crime in New York there is no substitute for the experience, knowledge and advocacy of the New York criminal lawyers and former Manhattan prosecutors at Saland Law.

Call us at 212.312.7129 or contact us online today to speak with our New York attorneys and former Manhattan prosecutors.