Aggravated Harassment in the Second Degree

New York aggravated harassment in the second degree criminalizes a variety of annoying, frightening, and bothersome conduct. Codified at New York Penal Law 240.30, aggravated harassment in the second degree is a class A misdemeanor, with a maximum penalty of one year in jail and a $1000.00 fine. Conviction for this crime can leave someone with a criminal record.

Aggravated harassment in the second degree occurs when someone intentionally bothers another person and:

1. With the specific intent to harass somebody else:
   1. actually communicates secretly or explicitly, by phone, digital means, the postal service, or some other form of transmitting messages: threats to cause bodily damage, damage to someone’s real estate or personal property, or a person who is a member of the person’s household, and the person doing the bothering can tell or should be able to tell that the message would arouse fear and anxiety in a reasonable person for the safety of their physical body or property, and the health and property of members of their family or
   2. causes the initiation of a message or communique secretly or explicitly, by phone, digital means, the post office, or any other form of communication that would arouse fear and anxiety in a reasonable person just as in section a).
2. Makes phone calls with no legitimate purpose.
3. Acts in a way that one knows will annoy or bother another they hit or make an unwanted touching on another person or makes threats to hit or touch another unwantedly for a reasons of discrimination or bias based upon the threatened or hit person’s affiliation with a minority group.
4. With the intent to bother another, a person hits or touches another unwantedly if they are the same family as defined in Criminal Procedure Law 530.11(1).
5. The person has been found guilty of harassment in the first degree at some time in the past 10 years.

Of interest is the second subdivision of aggravated harassment in the second degree, the section that criminalizes bothering people on the phone. This provision prohibits phone stalking, repeated dialing and hanging up to bother someone, and interrupting someone’s business by preventing them from being able to access phone lines. Today’s activists should pay special attention to the fact that repeated dialing to distract someone who is the object of their scorn due to “cancel culture” or sending black fax pages to tie up a victim’s fax machine and exhaust their ink could wind up costing that activist their freedom for up to a year. This provision has also survived constitutional challenges with respect to the First Amendment rights of free speech and due process issues of vagueness.

The third subdivision of aggravated harassment in the second degree is a direct response to harassment based or racism, gender bias, hate of immigrants, homophobia and other forms of hatred. The criminalization of offensive physical touching of others with the intent of merely bothering or upsetting someone reflects the legislative intent for this portion of the crime to only cover conduct that does not cause serious injuries. More serious racial bias crimes like cross burning and defacing buildings with Nazi symbols are punished by aggravated harassment in the first degree, and other violent racially biased crimes are specifically punished by the Hate Crime Act of 2000’s sentencing enhancement provisions combined with violent felony crimes.

If you or someone you love has been accused of aggravated harassment in the second degree call our New York criminal defense attorneys. We may be able to help you get your charges reduced or dismissed. Call us today for a free consultation.