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People of the State of New York v. Darren Kochanowski

Second Department holds that the creation of a website that invites users to contact complainant for sex, which causes third parties to contact complainant via a telephone number provided on the site, constitutes aggravated harassment in the second degree in violation of New York Penal law section 240.30.  As a result, the Second Department affirms defendant’s conviction of aggravated harassment as a result of his involvement in the creation of such a website.

The Second Department did overturn defendant’s conviction for criminal contempt in the second degree, arising out of his purported violation of an order of protection, prohibiting contact with the complainant.  The Court held that such conviction could not stand, because the website at issue was created prior to the issuance of the order of protection, and its continued maintenance was not clearly prohibited thereby.

Defendant, with the assistance of a co-worker, created a website designed to harass the complainant, a woman with whom he had had a prior relationship.  The website contained suggestive photos of the complainant, attributed to her an infatuation for sex, and invited users to contact her for a meeting.  The website provided complainant’s telephone number.  At least two individuals viewed the website and contacted complainant, causing her anguish.

Section 240.30(1) of the Penal law provides:

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:

1. Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.

The Court held that defendant’s conduct, as described above, constituted a violation of New York Penal law section 240.30.  Said the Court:

[W]e are of the view that [Penal Law section 240.30] is broad enough to hold that by use of a computer, defendant and his co-worker ‘cause[d] a communication to be initiated by mechanical or electronic means or otherwise.’  Penal Law Section 240.30.  The means by which communication to the victim was made was the telephone, a device plainly within the ambit of the statute. … Defendant did not simply distribute his materials over the Internet but also directed people to complainant’s home and place of employment. … Nor should defendant be exculpated because he, instead of placing the phone call to his victim himself, used others to do so. …

The Court did, however, reverse defendant’s conviction for criminal contempt in the second degree for violating an order of protection as a result of his continued maintenance of the website.  The website had been created prior to the order of protection, which prohibited defendant from contacting the complainant.  The court held that, because the order of protection did not specifically mention the website, it was not a clear enough prohibition on its continued maintenance to support a contempt conviction.