Aggravated Harassment and Stalking Charges in New York

Domestic Violence Defense › Aggravated Harassment and Stalking

A large share of domestic violence arrests in New York involve no physical contact at all. A relationship ends, the messages continue, and one person goes to the precinct with a phone full of screenshots. The charges that follow are usually aggravated harassment in the second degree, stalking, or both. Each is a family offense, which means mandatory arrest rules, an order of protection at arraignment, and the same collateral consequences as a case involving violence.

Aggravated Harassment in the Second Degree (PL § 240.30)

Aggravated harassment in the second degree is a class A misdemeanor, punishable by up to 364 days in jail or three years of probation. The subdivisions that appear in domestic cases are these:

Subdivision 1: a communicated threat. With intent to harass another person, the accused communicates, by telephone, computer, mail, or any other form of communication, a threat to cause physical harm to that person or a member of their family or household, or unlawful harm to their property, and knows or reasonably should know that the communication will cause reasonable fear of that harm.
Subdivision 2: a telephone call with no legitimate purpose. With intent to harass or threaten, the accused makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.
Subdivision 4: physical contact causing injury. With intent to harass, annoy, threaten, or alarm, the accused strikes, shoves, kicks, or otherwise subjects another person to physical contact and causes physical injury to that person or to a member of their family or household.

Annoying Messages Are Not a Crime

The threat requirement in subdivision 1 is there for a reason. The older version of the statute made it a crime to communicate with another person "in a manner likely to cause annoyance or alarm." In People v. Golb (2014), the Court of Appeals struck that provision down as unconstitutionally vague and overbroad. The Legislature rewrote the subdivision the same year, and the current version requires an actual threat of physical harm or unlawful harm to property.

That matters in practice. Police still make arrests on complaints that describe messages as "harassing," "alarming," or simply numerous. Insults, accusations, pleas to get back together, and fifty unanswered texts in a night are unpleasant, but without a threat they do not satisfy subdivision 1. When the complaint does not quote a threat, we move to dismiss it as facially insufficient.

The Lesser Harassment Offenses

Harassment in the first degree (PL § 240.25) is a class B misdemeanor. It covers intentionally and repeatedly harassing another person by following them in public places or by a course of conduct that places them in reasonable fear of physical injury. Harassment in the second degree under PL § 240.26(3) covers a course of conduct or repeated acts that alarm or seriously annoy another person and serve no legitimate purpose. It is a violation and not a crime, which is why it is a common plea-bargain destination. We discuss the physical-contact form of harassment in Assault in the Third Degree and Harassment.

The Four Degrees of Stalking

The base offense is stalking in the fourth degree. A person commits it when they intentionally, and for no legitimate purpose, engage in a course of conduct directed at a specific person, and know or reasonably should know that the conduct:

is likely to cause reasonable fear of material harm to the physical health, safety, or property of that person, a member of their immediate family, or an acquaintance; or
causes material harm to the person's mental or emotional health, where the conduct consists of following, telephoning, or initiating communication or contact after the accused was clearly informed to cease; or
is likely to cause reasonable fear that the person's employment, business, or career is threatened, where the conduct consists of appearing, telephoning, or initiating contact at the workplace after being clearly informed to cease.

Offense	Statute	What typically raises the grade	Classification
Stalking in the fourth degree	PL § 120.45	Base offense	Class B misdemeanor
Stalking in the third degree	PL § 120.50	A prior stalking conviction, multiple victims, or conduct likely to cause reasonable fear of physical injury, serious physical injury, a sex offense, kidnapping, or death	Class A misdemeanor
Stalking in the second degree	PL § 120.55	Display of a weapon, certain prior convictions, or a victim under fourteen	Class E felony
Stalking in the first degree	PL § 120.60	Physical injury caused in the course of third or second degree stalking	Class D felony

In People v. Stuart (2003), the Court of Appeals upheld the stalking statute against a vagueness challenge. The Court also made clear that the People do not have to prove the accused intended to frighten anyone. They must prove that the accused intended the acts that make up the course of conduct and knew or should have known the likely effect.

"Course of Conduct" and "No Legitimate Purpose"

These two phrases are where stalking cases are won. A course of conduct is a pattern, not an event. One visit to an apartment or one evening of calls is weak proof of a pattern.

People who share children, a lease, a car, a bank account, or a business have many legitimate reasons to contact each other. Messages about pickup times, rent, bills, returning keys, or retrieving belongings have a purpose, even when the tone is hostile. Where the statute requires that the accused was "clearly informed to cease," we look for whether that ever happened, and whether the complainant kept the conversation going afterward.

The Evidence Is Digital, and It Is Often Incomplete

Screenshots are not the conversation. A screenshot shows what the person who took it chose to capture. It can omit the other side of the exchange, the messages before and after, and the dates. We demand the full thread through discovery and compare it with our client's own phone.
Authentication. The People must show that the accused actually sent the messages. A display name or a phone number on a screenshot is not always enough. Spoofed numbers, texting apps, and fake social media accounts are easy to create, and they do turn up in these cases.
Records. Phone company and platform records can confirm or contradict the complainant's account of who contacted whom, how often, and when.
The First Amendment. Speech that is offensive, crude, or persistent is still protected unless it falls into a recognized exception such as a true threat. That is the principle behind Golb, and it limits how far these statutes reach.

If you expect to be charged, preserve your own phone. Do not delete messages, call logs, or accounts. The complete thread is usually better for the defense than the excerpt the police were shown, and deleting it can look like consciousness of guilt.

After the Arrest: Do Not Reply

The court will issue an order of protection at arraignment, and in a harassment or stalking case it will almost always bar all contact. From that moment, any message to the complainant, including a reply to a message they sent first, is a new crime. See Criminal Contempt for Violating an Order of Protection. A contempt arrest turns a defensible misdemeanor into a much harder case.

The collateral consequences deserve attention before any plea. Stalking is a named category in the federal deportation statute, so non-citizens face serious immigration consequences. An order of protection or a conviction can also affect firearm rights and licenses.

More on Domestic Violence Defense

This page is part of our domestic violence defense section.

Charged Over Messages or Calls?

If you have been arrested for aggravated harassment or stalking in New York, or a detective has called and asked you to come in, call us at 212-233-1233 or email [email protected] before you speak with anyone.