Before you send that threatening email or text message, or scream in anger at someone over the phone, you should take a deep breath and stop to consider whether you might actually be committing a crime by doing so. In New York state, Aggravated Harassment in the Second Degree (Penal Law 240.30) is a Class A misdemeanor punishable by up to 1 year in jail. A person is guilty of this crime, when, with intent to harass, annoy, threaten or alarm another person, he or she:
1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or
2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or
3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or
4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.
In our experience, these crimes are frequently reported in cases involving bickering spouses or ex-boyfriends/girlfriends. The cases brought under subsection 1 of Penal Law Section 240.30 can be easy for prosecutors to prove because there is oftentimes some electronic or recorded evidence of the crime. In cases involving e-mail or text messages, for example, the complaining witness or victim can show the email/text to the police or prosecutor and easily give them probable cause to make an arrest. Sometimes the identity of the sender of the message is obvious, but even when illegal messages are sent anonymously, police can sometimes trace the origin of the message with an IP address or telephone account information. Keep in mind, though, that a person that says something threatening over the phone can be arrested for Aggravated Harassment in the Second Degree even when the telephone call is not recorded, so long as the complaining witness is sufficiently credible to the police and/or prosecutor.
Skilled defense attorneys will generally either try to argue one of two things 1) that the message at issue was not, in fact, made or sent by the accused person, or 2) that the accused person did not have a criminal intent in sending the message.
If you or a loved one have been arrested for or are being investigated for a violation of Penal Law Section 240.30, you should strongly consider contacting the skilled criminal defense attorneys at Galluzzo & Johnson LLP about possible representation. Their attorneys include three former prosecutors that worked extensively on these types of cases. Matthew Galluzzo, in particular, was a supervising attorney in the domestic violence unit of the Manhattan D.A.’s Office, and has significant experience both prosecuting and defending individuals charged with violations of this crime.
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