New York Penal Law § 240.31 – Aggravated Harassment in the First Degree

Aggravated Harassment in the First Degree is a crime prohibiting certain actions designed to annoy, harass, alarm or threaten another person based on that person’s race, ancestry, gender, gender identity, sexual orientation, age, disability or religion. Prosecutors also bring charges of Aggravated Harassment in the First Degree if someone has a prior harassment conviction and commits a subsequent qualifying offense. Aggravated Harassment in the First Degree is a class E felony.

Before a judge or jury can convict anyone of a crime, the government must prove each element of the offense beyond a reasonable doubt. Aggravated Harassment in the First Degree is no exception. The elements the government must prove to establish the crime of Aggravated Harassment in the 1st Degree are:

1. The defendant did one of the following:
   1. Damage property valued at over $50 that was used for religious purposes;
   2. Draws or paints a swastika on any public or private property without the consent of the owner;
   3. Publicly sets a cross on fire; or
   4. Paints, draws or displays a noose on any public or private property without the consent of the owner.
2. The defendant’s actions were intended to annoy, harass, threaten or alarm another person based on their race, ancestry, gender, gender identity, sexual orientation, age, disability or religion.

It can also be considered Aggravated Harassment in the First Degree if you have a prior conviction for Aggravated Harassment in the Second Degree and commit another harassment offense.

There are several ways someone can be charged with Aggravated Harassment in the First Degree. A few examples include:

• A person burns a cross while holding a public demonstration;
• A person scrawls a swastika into the glass of a bus window;
• A person defaces the sign in front of a church, synagogue or mosque; and
• A person displays a noose to intimidate another person.

Often, prosecutors bring Aggravated Harassment in the First Degree charges along with one or more of the following:

• Aggravated Harassment in the Second Degree – NY Penal Law § 240.30
• Harassment in the First Degree – NY Penal Law § 240.25
• Harassment in the Second Degree – NY Penal Law § 240.26
• Disorderly Conduct – NY Penal Law § 240.20
• Inciting to Riot – NY Penal Law § 240.08

The defenses to Aggravated Harassment in the First Degree include:

• The defendant did not have any intention of harassing, annoying or threatening another person;
• No member of the public witnessed the defendant’s actions;
• The defendant’s conduct was considered protected speech under the First Amendment; and
• The defendant accidentally damaged religious property.

Aggravated Harassment in the First Degree is a class E felony. In New York, class E felony offenses are punishable by up to four years in prison. The court can also impose a fine of up to $5,000.

If you were recently arrested and charged with Aggravated Harassment in the First Degree, being found guilty could very likely result in a jail sentence. However, there are defenses to harassment charges that can reduce your exposure or result in an acquittal or the prosecution withdrawing your case. The New York criminal defense lawyers at Tilem & Associates, P.C. have over 40 years of combined experience aggressively defending the rights and freedom of clients charged with Aggravated Harassment and other public order offenses. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.