Harassment Second Degree New York

Harassment Second Degree New York

Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek, with over 40 years of combined experience defending clients throughout New York. What follows reflects a principled approach recognizing even “minor” charges threaten fundamental liberties.

New York classifies harassment in the second degree as a “violation” rather than a crime, which sounds benign until you understand what that means for your future. Unlike violations that seal automatically, harassment second degree under Penal Law § 240.26 remains on your record indefinitely. Prosecutors exploit this classification – they know most people won’t fight aggressively over something that’s “just a violation,” which is precisely why you need counsel who understands the stakes.

What Constitutes Harassment in the Second Degree

The statute defines three pathways to conviction, each requiring intent to harass, annoy, or alarm another person. Intent is the constitutional linchpin; without proving your subjective mental state, the prosecution has no case. Yet courts often treat any unwanted contact as presumptive harassment.

The first subsection criminalizes physical contact – striking, shoving, kicking. No injury required; merely “subjecting” someone to physical contact suffices if done with harassing intent. A shoulder bump in a crowded subway could theoretically qualify, though prosecutorial discretion usually prevents such absurdities. Usually.

Following someone in public places constitutes the second pathway, raising immediate First Amendment concerns. A protester following a politician while chanting slogans engages in protected political speech – yet prosecutors charge such conduct as harassment when the target complains. The statute exempts labor activity but provides no such safeguard for individual protesters.

The third subsection presents the most troubling vagueness: conduct or repeated acts that alarm or seriously annoy someone and serve “no legitimate purpose.” What constitutes legitimate purpose? Courts define it circularly – any purpose other than harassment. This tautology gives prosecutors enormous discretion. Multiple text messages after a breakup? Calling an ex-employer to contest termination? Standing on a public sidewalk near someone’s apartment? All potentially prosecutable if the recipient claims alarm.

Why Intent Requirements Matter Constitutionally

I’ve spent five decades arguing that criminal law requires proof of mens rea – guilty mind – to satisfy due process. Harassment second degree technically includes an intent element, but courts interpret it so loosely that it provides minimal protection. Prosecutors argue intent can be inferred from conduct alone: if you kept calling after being told to stop, you must have intended to annoy. That inference collapses when you consider legitimate scenarios – a parent reaching an estranged child, a creditor exercising collection rights, a journalist pursuing a source.

The burden theoretically rests on prosecution to prove specific intent. In practice, judges allow juries to presume intent from repetition, shifting the burden to you. This procedural sleight-of-hand undermines constitutional protections mens rea requirements provide. At Spodek Law Group, we force prosecutors to prove intent rather than rely on presumptions – because accepting shortcuts in criminal procedure means abandoning the adversarial system protecting everyone.

The Penalties Aren’t What You Think

Fifteen days in jail sounds trivial compared to felony sentences, and judges often impose no incarceration at all. But focusing on jail time misses the larger threat: a permanent record for conduct that might have been a single impulsive act or misunderstood interaction. Unlike disorderly conduct or other violations that seal automatically, harassment second degree remains visible to employers, landlords, and professional licensing boards indefinitely.

Community service, anger management classes, orders of protection – these “alternative” penalties carry their own burdens. The conviction itself becomes ammunition in custody disputes, immigration proceedings, or any future legal matter where your character comes into question. Licensing boards don’t distinguish between crimes and violations when assessing moral character; they see “harassment” and make assumptions about fitness to practice.

Defenses That Actually Work

Challenging intent represents the strongest constitutional defense, but requires more than asserting “I didn’t mean to harass anyone.” You need alternative explanations that negate harassing intent: exercising a legal right like debt collection, resolving a legitimate dispute, engaging in protected speech. These purposes create reasonable doubt.

Credibility attacks on the complainant prove equally effective when they have false accusation history or clear motive to fabricate – contentious divorce, business dispute, custody battle. That evidence becomes relevant to whether alleged harassment occurred or constitutes weaponized accusation.

Video evidence has become crucial for physical contact allegations. Surveillance cameras capture interactions witnesses misremember. I’ve seen complainants swear under oath about violent shoving, only for security footage to show an accidental brush followed by apology. Prosecutors dismiss such cases when confronted with contradictory video – if your attorney demands footage early and aggressively.

Why This “Violation” Requires Serious Defense

When Todd Spodek defended Anna Delvey against fraud charges that captivated national media – ultimately resulting in a Netflix series – he demonstrated that vigorous advocacy matters most when public opinion runs against your client. The principle applies equally to harassment violations. Prosecutors view these cases as slam dunks, expecting quick guilty pleas. That prosecutorial arrogance creates opportunity for prepared defense counsel.

The stakes in harassment cases might seem lower than federal fraud prosecutions, but constitutional principles don’t scale with jail time. Your right to confront witnesses, require proof beyond reasonable doubt, hold the state to its burden – these protections apply equally in violation trials. At Spodek Law Group, we make the government prove every element, challenge every assumption, never conceding any charge is too minor to fight.

We’ve represented clients in harassment cases from interpersonal disputes to politically motivated prosecutions. Prosecutors expect cooperation; defense attorneys often view violations as nuisances rather than constitutional contests. That expectation creates leverage – forcing trial suddenly makes prosecutors interested in dismissal because proving intent takes resources they’d rather spend elsewhere.

What to Do if You’re Charged

Don’t make statements to police without counsel present. Every explanation you offer can be reframed as admission of intentional conduct. “I was just trying to talk to her” becomes evidence of intent to annoy; attempts to justify repeated contact become proof of a harassing course of conduct.

Document everything immediately – text messages, emails, any communications establishing legitimate purpose or showing the complainant’s contrary behavior. If they claim harassment by repeated calls while calling you with equal frequency, that context matters. Harassment charges often emerge from larger conflicts – relationship breakups, neighbor disputes, workplace tensions – where the criminal charge becomes a weapon in the underlying dispute.

Constitutional Defense as Principle

Every person charged deserves counsel who treats the proceeding as consequential – not because penalties are severe, but because process itself matters. When prosecutors secure easy convictions on vague statutes with minimal proof requirements, we erode the adversarial system protecting everyone’s liberty. The harassment statute’s breadth makes it ripe for abuse, which is why defending against it requires counsel who won’t treat it as minor.

At Spodek Law Group, we’re available 24/7 because arrests don’t occur on convenient schedules. Our team includes former prosecutors who know how government builds these cases and where vulnerabilities lie. Whether you’re facing harassment charges in Manhattan, Brooklyn, or anywhere across New York, constitutional principles remain constant – and so does our commitment to holding government to its burden of proof.