Legal Question in Criminal Law in New York

Defending oneself against harassment charges

I have received a court summons charging me with harassment under NY State Penal Code 240.26, section 3. I sent about nine emails to an -ex. They were all angry, but they weren't threatening. To me, this seems to be a law under which you are automatically guilty, for the harassment (so I'm told) is totally in the eyes of the receiver. After email 5, he said he had set up a spam filter. Is it my fault it didn't work? My question is: a) once charges have been filed, can they be withdrawn if my -ex so requests; and b) my attorney says ''all they'll issue is a restraining order.'' I don't WANT a restraining order! Is there such a thing as a successful defense for this charge and, if so, what is it? It's in a small town, so I don't want to risk a bench trial in case the judge is cranky.


Asked on 2/20/09, 9:39 pm

1 Answer from Attorneys
Matthew Schwartz Schwartz & Ponterio, PLLC

Re: Defending oneself against harassment charges

Under Penal Law � 240.26, a person is guilty of Harassment in the Second Degree when, "with intent to harass, annoy or alarm another person: (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."

I think your best chance of getting the case dismissed would be to make a pretrial motion to dismiss based on an argument that the e-mails were not alarming or seriously annoying. It would depend on the content of the e-mails and they would have to all be submitted to the court. Your attorney may be able to persuade the DA to drop the case if your ex agrees.

As long as your case is not pending in NY City, you have a right to a jury trial. In NY City, Class B Misdemeanors such as Harassment in the Second Degree are subject to bench trial.

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Answered on 2/23/09, 9:49 am


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