NY Criminal Defense Lawyers.
New York harassment and disorderly conduct is codified in NY Penal Law § 240. There are 5 harassment statutes ranging from a violation to a class E felony, and one disorderly conduct violation.
Disorderly conduct is codified in NY Penal Law § 240.20. There are only 7 distinct ways in New York to commit a NY Disorderly conduct. It is a crime of intention or recklessness, in that the state must prove that the person intended to cause a public inconvenience, annoyance or alarm. Or, through the action, the person recklessly created a risk of a public inconvenience, annoyance or alarm. The prohibited conduct is:
1 Engaging in fighting or in violent, tumultuous or threatening behavior
2. Making unreasonable noise
3. Publically using abusive or obscene language, or making an obscene gesture
4. Unlawfully disturb any lawful assembly or meeting
5. Obstructs vehicular or pedestrian traffic
6. Congregating in a public place and refusing to comply with a lawful order to disperse
7. Creating a hazardous / physically offensive condition which serves no legitimate purpose
Disorderly conduct is a violation, which means that is it not a crime. While it is on the same level as a speeding ticket, it is nonetheless more serious. This is because:
|It is in the penal code, which means that it shows up on a criminal history checkEven if not taken into custody, a disorderly conduct charge is an arrestUnlike a traffic ticket you cannot mail it in with a guilty plea you must appear in courtUnlike a traffic ticket if you fail to appear a warrant will be issued for your arrestIt can result in jail time, fine, community service, or a combination.Protective orders are issued against the defendant in favor of the victim.|
Defense of your disorderly conduct charge
Many people make the mistake of going it alone when they are charged with Disorderly Conduct, NY Penal L. § 240.20. Or they just ignore it because they were only given a ticket to a local court or the NYC summons court. They have no idea the consequences of pleading guilty as charged any paying a fine. They have no idea that it will always show up on a background check. They have no idea that the charge is penal in nature. They have no idea that a warrant is issued for their arrest for failure to appear. They have no idea that the court will likely issue a temporary protective / restraining order which in many cases can result in enjoining you from going back into your home during and after the case is resolved.
Just because you were charged with disorderly conduct does not mean the state has a case against you. The state has the burden of proof and there are many avenues open for defense. For example, we carefully review the accusatory instruments to insure that there is a prima facie case against you on paper – if not the court has no authority to hear the case and, upon our motion to the case must be dismissed. We also fully prepare the case for trial and seek alternate dispute resolutions such as adjudication in contemplation of dismissal (ACD). We seek limitations on a protective order to disrupt your life as little as possible. We make the appropriate applications to the court in order to have your case sealed so that the arrest and any potential conviction does not get into the public domain.
Elements of each harassment degree
Harassment in the 2nd Degree, PL § 240.26 – Violation
The elements of the violation of harassment in the second degree, NY Penal L. § 240.26, are similar to that of disorderly conduct but more succinct and narrow. In order for the state to prove harassment second, they have to prove that, with the intent to harass, annoy or alarm someone else, the defendant either:
1. Strikes, shoves, kicks physical contacts another, or attempts or threatens to do so, or
2. Follows a person in or about a public place or places (i.e. stalking), or
3. Engages in a course of conduct which alarm or seriously annoy such other person.
Despite the fact that harassment second is a violation and not a crime, it is still a serious charge. Even if handed a ticket it is still a formal arrest; a conviction results in a criminal history and possibly jail time; you must appear in court; a warrant can be issued for your arrest; protective orders are usually issued when arrested for harassment 2nd degree.
Harassment in the 1st Degree, PL § 240.25 – Class B Misdemeanor
Harassment in the first degree, NY Penal L. § 240.25 is purely a stalking statute. The state must prove that the defendant “intentionally and repeatedly” harassed another person by “following the 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.”
It is not enough for the state to prove that the defendant followed someone once, and coupled with repeatedly following someone the state must also prove that the person was in reasonable fear of physical injury. In defense of such a charge our law firm focuses on the elements to undermine the people’s case against our clients.
Aggravated harassment in the 2nd degree, PL § 240.30 – Class A Misdemeanor
Aggravated harassment in the 2nd degree NY Penal L. § 240.30 prohibits phone and mail harassment as well as racial, religious, age, gender, and sexual orientation harassment. A person is prohibited from, with the intent to “harass, annoy, threaten or alarm another person” communicates with a person telephone, telegraph, mail, or transmission / delivery of written communication, or causes said communication through 3rd party means, in such manner likely to cause annoyance or alarm. The statute also prohibits phone calls with “no purpose of legitimate communication.”
The statute also prohibits assaults (strikes, shoves, kicks, or other 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, even if the belief or perception is incorrect.
Lastly, aggravated harassment second is also an appropriate charge when the defendant has been convicted of aggravated harassment in the first degree in the previous 10 years.
Aggravated harassment in the 1st degree, PL § 240.31 – Class E Felony
Aggravated harassment in the 1st degree NY Penal L. § 240.31 prohibits religious and racial harassment. The district attorney must prove that, with intent to harass, annoy, threaten or alarm another person, due to the victims “race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation,” the person either (1) damages premises used for religious purposes, (2) vandalizes property by affixing a swastika, (3) sets a fire on a cross in public view, (4) place or display a noose on a 3rd person’s property without their permission, or (5) has been convicted of Aggravated Harassment 2nd degree within the previous 10 years specifically for assaulting a person due to race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.
Aggravated harassment of an employee by an inmate, PL § 240.32 – Class E Felony
Aggravated harassment of an employee by an inmate, NY Penal L. § 240.32 was enacted to protect NY State Corrections officers and all corrections employees against harassment from an inmate. The statute prohibits what is commonly called “gassing,” which is throwing upon a correctional officer an inmate’s bodily fluids and excretions, specifically blood, seminal fluid, urine, and feces.
Defense of your Harassment charge
Just because you were charged with Harassment does not mean there is a case. Many elementary avenues are open for defense. Especially when you were given a ticket for the violation of harassment in the second degree, NY Penal L. § 240.26, often times the paperwork is incorrect or lacking to the point where the court does not have the authority to hear the case. For misdemeanor grade charges, there must be a proper information before the court. For a felony, a defendant is entitled to a felony hearing before the matter can proceed. All of these are avenues for defense of your harassment charge.
Our office fully prepares the case for trial and seeks alternate dispute resolutions such as adjudication in contemplation of dismissal (ACD), community service, and non-incarceration sentences. We seek to limit protective orders to the greatest degree possible, and make the appropriate applications to the court in order to have your case sealed so that the arrest and any potential conviction does not get into the public domain.
A word about a harassment or disorderly conduct arrest warrant
You received a ticket or where arrested and released a while ago for harassment or disorderly conduct a while ago and for whatever reason never returned to court or just ignored it. Whether it was last week, last month, last year or longer rest assured there is a warrant for your arrest. The next time you encounter a cop you will be arrested, handcuffed, and taken to jail. This could happen when you are pulled over with your family in the car, when you call the police for help, and it can even come up in a private background check. The police agency will hold you for the arresting agency to pick you up, where you will be transferred to that agency, re-handcuffed, and re-booked. You will either have to post a large bond or, if you cannot post a bond wait until court is open so that you can be arraigned. All of this will happen without the benefit of having counsel to protect your interests.
We routinely represent people for outstanding disorderly contact and harassment warrants. Rather than go through the police department and an arrest, we call the court, obtain the bond amount, and arrange for a peaceful surrender to the court and NOT to the police, which avoids the drama of being taken into custody and booked. Often times we pre-arrange a surrender and plea to a reduced charge so all you have to make is 1 court appearance.