a. Introduction
In situations in which a WMC victim is harassed either online or otherwise, the State may charge a defendant with criminal harassment or nuisance. It may be particularly apt in situations of cyberstalking and cybercrime, both of which are becoming increasingly common.
b. Text of Statutes
1) N.Y. Penal Law § 240.25 – Harassment in the first degree
A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury. This section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended. Harassment in the first degree is a class B misdemeanor.
2) N.Y. Penal Law § 240.26 - Harassment in the second degree
A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another follows a person in or about a public place or places; or (3) He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended. Harassment in the second degree is a violation.
3) N.Y. Penal Law § 240.30 – Aggravated harassment in the second degree
A person is guilty of aggravated harassment in the second degree 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.
(5) For the purposes of subdivision one of this section, “form of written communication” shall include, but not be limited to, a recording as defined in subdivision six of section 275.00 of this part. Aggravated harassment in the second degree is a class A misdemeanor.
4) N.Y. Penal Law § 240.45 – Criminal nuisance in the second degree
A person is guilty of criminal nuisance in the second degree when: (1) By conduct either unlawful or in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons; or (2) He knowingly conducts or maintains any premises, place or resort where persons gather for the purposes of engaging in unlawful conduct. Criminal nuisance in the second degree is a class B misdemeanor.
5) N.Y. Penal Law § 240.46 - Criminal nuisance in the first degree
A person is guilty of criminal nuisance in the first degree when he knowingly conducts or maintains any premises, place or resort where persons come or gather for purposes of engaging in the unlawful sale of controlled substances in violation of section 220.39, 220.41, or 220.43 of this chapter, and thereby derives the benefit from such unlawful conduct. Criminal nuisance in the first degree is a class E felony.
c. Cases
1) People v. Soler, 859 N.Y.S.2d 514 (N.Y. App. Div. 2008)
Procedural Posture: Appeal by defendant of finding of jury trial finding him guilty of criminal contempt in the first degree, aggravated harassment in the second degree, and sentencing him as a predicate felon to concurrent terms of two years in prison for criminal contempt conviction, and one year for aggravated harassment conviction.
Law: N.Y. Penal Law § 240.30
Facts: Defendant was in his first year of marriage to the victim when he was charged and convicted of feloniously assaulting her. He was sentenced to jail and the court issued an order of protection directing defendant to avoid any contact with his spouse. In April 2005, he called the victim numerous times at her home, and she reported the calls to the police. She testified that he called her between 10 and 20 times at home and at work, and that he would often threaten her when she refused to talk to him. Defendant argued on appeal that the evidence introduced at trial was insufficient to convict him on the charges.
Outcome: The court affirmed the convictions because the defendant confirmed receipt of the order of protection, and the court believed the victim’s testimony that defendant called her numerous times despite his claim that he only called her one time, directly following the death of her grandfather.
d. Practice Pointers
There are no relevant practice pointers to add here at this time.