In People v. Aponte (Ct. App. 2/10/2011) (Pigott, J.) (7-0), the Defendant was originally charged with Stalking 3º, Harrassment 1º, and Harrassment 2º, after he followed the complainant on more than 25 times in the previous three years. The People moved to reduce the charge to Attempted Stalking 3º and the Defendant was tried without a jury and convicted. At issue was whether Attempted Stalking 3º is a legally cognizable offense. The Court of Appeals concluded that it was. The Defendant argued that the statute already encompasses attempt-ish actions because a person may be guilty even if a person is not actually put in fear. The statute only requires a reasonable likelihood that his actions would.
The court concluded that there is nothing impossible attempting to engage in conduct that is likely to cause fear. "Thus, if a telephone call or e-mail were 'likely to cause' the consequences referred to, an attempt to make such a phone call or send such an e-mail – even if the communication never reached its intended recipient – would be an attempt."