Court Rules Aggravated Harassment in the 2nd Degree Unconstitutional

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David P. Badanes, Esq.

In New York, Aggravated Harassment in the Second Degree is defined (in part) as “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 … 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.”

The highest New York Court has ruled that the law is unconstitutionally vague and overbroad. Accordingly, unless the law is changed, no one can be charged or convicted of Aggravated Harassment in the Second Degree based on the language stated above.

Since the statute has been struck down, this also affects orders of protections that are based on aggravated harassment in the second degree.  You will no longer be able to obtain an order of protection based on the underlying charge of aggravated harassment in the second degree.

It still may be possible to charge someone with aggravated harassment in the second degree as the Court did not strike the entire statute down.  Part of the statute deals with actual conduct (“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.”).

The Court did not state if its ruling would be retroactive.  Therefore, it is unclear if any previously charged persons could negate their criminal convictions based on Aggravated Harassment in the Second Degree.  If you have been charged with Aggravated Harassment in the Second Degree and are still serving a criminal sentence for that crime, you should consult with an attorney to discuss your options.

If you have been arrested, then you need to hire an experienced Criminal Defense Attorney.  In Long Island, New York (Suffolk County and Nassau County), David Badanes and the Badanes Law Office will help you.  Call David Badanes and the Badanes Law Office today at 631-239-1702, email me at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

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