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Creating a Web site disparaging a person, and including that individual’s address and telephone number, can result in criminal culpability for aggravated harassment, a panel of the New York Appellate Term, 2nd Department, ruled last week in an apparent case of first impression. Even if the defendant did not complete a telephone or wire communication to the victim, he can be liable for aggravated harassment for causing communications to be initiated through use of the Web site, the panel said. In an unsigned opinion, the justices affirmed the defendant’s conviction and one-year jail sentence imposed in the Justice Court for the Town of Poughkeepsie for creating the Web site, which included “suggestive photographs” of the person and false statements about her sexual habits. In People v. Darren S. Kochanowski, 99-1711 D CR, the defendant allegedly enlisted a co-worker to design the Web site in order to “strike back” at an ex-girlfriend. Under Penal Law �240.30(1), a person is guilty of aggravated harassment in the second degree if he “[c]ommunicates, 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.” According to the panel, which consisted of Justices Andrew J. DiPaola, Marquette Floyd and Louis Palella, Penal Law �240.30(1) is written broadly 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.” The Web site established by the defendants, the unanimous panel reasoned, was intended to cause telephone communications to the victim that would likely cause annoyance or alarm. The defendant, Darren S. Kochanowski, allegedly furnished pictures of his ex-girlfriend, which the co-worker placed on the Internet, adding in references to “intimate body parts” and attributing to her “an infatuation with sex.” According to the opinion, the Web site supplied the ex-girlfriend’s address and several telephone numbers where she could be reached, and it included a false statement that she would drive out to meet people who contacted her. PHONE CALLS INITIATED The woman received two phone calls at her place of employment, which at first alarmed and frightened her. She asked the callers to provide the address of the Web site and forward to her the material they had seen on the Internet. She provided the materials to New York State Police, who traced the Web site back to the authors. Even though Kochanowski and his co-worker did not contact the victim themselves, the content of the Web site was obviously designed to encourage unsolicited communications with the woman that would be annoying or alarming, the court said. “[T]he instant offense did not merely involve … a distribution of materials,” the justices observed. “Defendant did not simply distribute his materials over the Internet but also directed people to complainant’s home and place of employment.” In this way communications were directed at an unwilling listener, the justices said. “Nor should defendant be exculpated because he, instead of placing the phone call to his victim himself, used others to do so,” the court said. The opinion did not include information on the co-worker who helped Kochanowski design the Web site. Dutchess County Assistant District Attorney Jessica Z. Glickman handled the prosecution, and James P. Kelley of Rizzo & Kelley in Poughkeepsie represented Kochanowski.

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