New York Statutory Criminal Law

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  2. Eavesdropping

    1. Introduction

      This provision is the state equivalent of the federal Wiretap Act. The law prohibits the use of recordings obtained through eavesdropping in litigation where they were “intercepted” without the victim’s consent.

    2. Text of Statute

      A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. Eavesdropping is a class E felony.

    3. Cases

      1. Gurevich v. Gurevich, 886 N.Y.S.2d 558 (N.Y. Sup. Ct. 2009)

        • Procedural Posture: In wife’s matrimonial action against her ex-husband, she sought to introduce as evidence emails that she had obtained from his email account by using his password after the parties had separated. The court considered whether to exclude or admit the evidence.

        • Law: N.Y. Penal Law § 250.05

        • Facts: The parties had been married for sixteen years and had been separated for three years. In the midst of the parties’ dispute over child support, the wife, a software developer, retrieved emails from her husband’s email account without his permission. But the husband had never changed his password following the parties’ separation, and he had never revoked his permission for her to use his email account and password. He argued that the emails were stolen from him without his permission and that his wife, by virtue of her knowledge of computers, was capable of breaking into his account. He asserted that he had never given her permission to access his email (even while they were married), and that regardless, the start of an action for divorce should constitute an implied revocation of authority to access a spouse’s email.

        • Outcome: The court found the evidence to be admissible because the wife did not “intercept” husband’s emails under the rule. The emails were not in transit when she had obtained them, but rather, they were stored in her husband’s email account. The court’s review of the statute, the legislative history and the purpose—to prohibit individuals from intercepting communication going from one person to another—the wife’s retrieval of information from a computer did not fall within the strictures of the statute.

        • Special Notes: The court found the emails admissible at trial only as long as they did not violate the attorney-client privilege.

      2. In the Matter of Harry R. v. Esther R., 510 N.Y.S.2d 792 (N.Y. Fam. Ct. 1986)

        • Procedural Posture: Father in custody battle with his ex-wife over their two children sought to introduce in court recordings of his telephone calls with his children, and the mother objected.

        • Law: N.Y. Penal Law § 250.05

        • Facts: Parents were in a custody battle over their children following their divorce. The father sought to modify the existing order for visitation, and in so doing, sought to introduce as evidence recordings of his conversations with his children, which were made without his children’s knowledge or consent. The mother objected, and the court considered whether, among other things, the evidence constituted illegal eavesdropping.

        • Outcome: The court held that the recordings were not “illegal eavesdropping” under the New York statute because the conversations were recorded by the father “as either the sender or receiver of these communications.”1 Nevertheless, the court deemed the evidence inadmissible because the recordings violated the confidence and trust between the father and his children: “These children, like any other children, are entitled to feel that they may communicate freely with their parents without fear that those communications will be recorded and revealed later. The court cannot prevent Mr. R from recording these conversations. But it can preclude their use in this proceeding, although otherwise admissible, to protect the spirit of trust and confidence that needs to exist between child and parent in order for the children’s emotional health to be safeguarded.”2

    4. Practice Pointers

      The key to establishing a violation of the eavesdropping statute will be the ability of the plaintiff to establish an interception.

    1. In the Matter of Harry R. v. Esther R., 510 N.Y.S.2d 792 (N.Y. Fam. Ct. 1986). 

    2. Id. at 796. 

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  3. Cyberbullying

    1. Introduction

      Cyberbullying is the use of the Internet and related technologies to harm others in a deliberate, repeated and hostile manner. Cyberbullying is not a cognizable independent tort in New York, though there are a few statutes focused on efforts to prevent cyberbullying, e.g., statutes requiring schools to educate students on internet safety, etc. Unlike traditional bullies electronic bullies can remain virtually anonymous using temporary email accounts, pseudonyms in chat rooms, instant messaging programs, and other methods to mask their identities. In New York, a WMC experiencing cyberbullying would most likely be

    2. Text of Statutes & Regulations

      1) NY Educ. Law § 814 – Courses of study in internet safety

      (1) Any school district in the state may provide, to pupils in grades kindergarten through twelve, instruction designed to promote the proper and safe use of the internet.

      (2) The commissioner shall provide technical assistance to assist in the development of curricula for such courses of study which shall be age appropriate and developed according to the needs and abilities of pupils at successive grade levels in order to provide awareness, skills, information and support to aid in the safe usage of the internet.

      (3) The commissioner shall develop age-appropriate resources and technical assistance for schools to provide to students in grades three through twelve and their parents or legal guardians concerning the safe and responsible use of the internet. The resources shall include, but not be limited to, information regarding how child predators may use the internet to lure and exploit children, protecting personal information, internet scams, and cyber-bullying.

      2) NY Educ. Law § 2801(2) – Codes of conduct on school property

      The board of education or the trustees, as defined in section two of this chapter, of every school district within the state, however created, and every board of cooperative educational services and county vocational extension board, shall adopt and amend, as appropriate, a code of conduct for the maintenance of order on school property, including a school function, which shall govern the conduct of students, teachers and other school personnel as well as visitors and shall provide for the enforcement thereof. Such policy may be adopted by the school board or trustees only after at least one public hearing that provides for the participation of school personnel, parents, students and any other interested parties. . .

    3. Cases

      1. Finkel v. Dauber, 906 N.Y.S.2d 697, 2010 N.Y. Slip Op. 20292 (N.Y. Sup. Ct. 2010)

        • Procedural Posture: Plaintiff internet user moved for summary judgment on liability issues and for immediate trial on the issue of damages in defamation suit against teenage officers of an allegedly secret group on Facebook and asserted a claim against their parents for negligent entrustment. Defendants sought sanctions.

        • Law: Defamation; negligent entrustment

        • Facts: Plaintiff brought suit based on several malicious statements defendants had posted on a “secret” Facebook group, which she alleged targeted her. The statements asserted (among other things) that she had sexually transmitted diseases, including AIDS, and that she had morphed into the devil.

        • Outcome: The court held that there was no separate tort of cyberbullying and that plaintiff had failed to make out a defamation claim because the “overall context of the posts” was not defamatory. The court explained that to determine whether a statement was defamatory, it would not “sift[ ] through a communication for the purpose of isolating and identifying assertions of fact,” but rather, it would have to look at the “overall context.”1 The court explained that “[a] reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner, she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other. While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally. . . The entire context and tone of the posts constitutes evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.”2 The court also dismissed the cause of action against defendants’ parents, noting that it would not recognize parental liability for negligent entrustment of a computer in the hands of teenagers: “To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability.”3

        • Special Notes: The court explicitly noted that “the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.4

    4. Practice Pointers

      As noted above, because New York does not observe a separate tort relating to cyberbullying crimes, a victim of cyberbullying will likely have to try to get relief through a defamation claim or possibly a claim for intentional or negligent infliction of emotional distress.

      The New York statutes specifically relating to cyberbullying relate mainly to ways to educate students rather than the law and any corresponding punishments.

    1. Finkel v. Dauber, 906 N.Y.S.2d 697, 702 (N.Y. Sup. Ct. 2010). 

    2. Id. at 702. 

    3. Id. 

    4. Id. 

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  4. Coercion

    1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of another with the intention of forcing the victim into conduct the victim would not have otherwise performed may be charged with coercion in certain circumstances.

    2. Text of Statutes

      1) N.Y. Penal Law § 135.60 – Coercion in the second degree

      A person is guilty of coercion in the second degree when he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he or she has a legal right to engage, or compels or induces a person to join a group, organization, or criminal enterprise which such latter person has a right to abstain from joining, by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will:

      (1) Cause physical injury to a person; or

      (2) Cause damage to property; or

      (3) Engage in other conduct constituting a crime; or

      (4) Accuse some person of a crime or cause criminal charges to be instituted against him or her; or

      (5) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or

      (6) Cause a strike, boycott or other collective labor group action injurious to some person’s business; except that such a threat shall not be deemed coercive when the act or omission compelled is for the benefit of the group in whose interest the actor purports to act; or

      (7) Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or

      (8) Use or abuse his or her position as a public servant by performing some act within or related to his or her official duties, or by failing or refusing to perform an official duty, in some manner as to affect some person adversely; or

      (9) Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships. Coercion in the second degree is a class A misdemeanor.

      2) N.Y. Penal Law § 135.65 – Coercion in the first degree

      A person is guilty of coercion in the first degree when he or she commits the crime of coercion in the second degree, and when:

      (1) He or she commits such crime by instilling in the victim a fear that he or she will cause physical injury to a person or cause damage to property; or

      (2) He or she thereby compels or induces the victim to:

      (a) Commit or attempt to commit a felony; or

      (b) Cause or attempt to cause physical injury to a person; or

      (c) Violate his or her duty as a public servant. Coercion in the first degree is a class D felony.

    3. Cases

      1. People v. Piznarski, 2013 NY Slip Op. 61967(U) (N.Y. Ct. App. 3rd Dep’t. Jan. 15, 2013)1

        • Procedural Posture: Defendant charged with two counts of unlawful surveillance in the second degree, and one count of second-degree coercion.

        • Law: N.Y. Penal Law§ 250.55; NY Penal Law § 135.60

        • Facts: Using a digital camera, the defendant secretly recorded his girlfriend performing a consensual sex act with him in March 2010. In December 2010, he threatened to expose the video in order to coerce her into another sex act. The defendant was charged with one count of unlawful surveillance in the second degree, and one count of coercion in the second degree. However, while authorities were reviewing the mobile hard drive recovered in the investigation, they found that he had secretly recorded consensual sex acts with another female student in November 2010. Accordingly, he was charged with a second count of unlawful surveillance. Both victims testified at trial. The second victim did not even know the video footage existed until she was contacted by police investigators.

        • Outcome: The jury found Piznarski guilty of all counts, and he was sentenced to one to three years in state prison for one count of second-degree unlawful surveillance regarding the first victim, nine months incarceration for second-degree coercion for threatening to expose the video to coerce her into another sex act, and one year incarceration for an additional unlawful surveillance charge for secretly recording consensual sex acts with the second victim.

        • Special Notes: The Madison County D.A. stated that he will likely serve one to three years in state prison before returning to Madison County jail to serve a year and nine months. He will also be required to register as a sex offender. Finally, the court also ordered restitution and granted orders of protection for both victims.2

    4. Practice Pointers

      This type of criminal action will likely arise in similar circumstances to an action for extortion.

    1. There is no reported decision available at this time, but the foregoing citation is to the denial of Piznarski’s application for an order staying execution of judgment pending appeal, and for release on recognizance or bail. The remainder of the case summary discusses the criminal case that was tried before a jury in Madison County, New York. 

    2. See Alaina Potrikus, "Former Colgate student headed to state prison for filming himself having sex with girlfriend" available at http://www.syracuse.com/news/index.ssf/2013/01/former_colgate_student_he... (last visited June 6, 2013). 

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  5. Stalking

    1. Introduction

      The New York legislature criminalized stalking in 1999, and “the crime contemplates an intentional course of conduct with no legitimate purpose in which the offender targets a particular person. The conduct must be likely to place the victim in reasonable fear of material harm, or cause the victim mental or emotional harm.”1

    2. Text of Statutes

      1) N.Y. Penal Law § 120.45 – Stalking in the fourth degree

      A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:

      (1) Is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or

      (2) Causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning, or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or

      (3) Is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct. Stalking in the fourth degree is a class B misdemeanor.

      2) N.Y. Penal Law § 120.50 – Stalking in the third degree

      A person is guilty of stalking in the third degree when he or she:

      (1) Commits the crime of stalking in the fourth degree in violation of section 120.45 of this article against three or more persons, in three or more separate transactions, for which the actor has not been previously convicted; or

      (2) Commits the crime of stalking in the fourth degree in violation of section 120.45 of this article against any person, and has previously been convicted, within the preceding ten years of a specified predicate crime, as defined in subdivision five of section 120.40 of this article, and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or

      (3) With the intent to harass, annoy, or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person’s immediate family; or

      (4) Commits the crime of stalking in the fourth degree and has previously been convicted within the preceding ten years of stalking in the fourth degree. Stalking in the third degree is a class A misdemeanor.

      3) N.Y. Penal Law § 120.55 – Stalking in the second degree

      A person is guilty of stalking in the second degree when he or she:

      (1) Commits the crime of stalking in the third degree as defined in subdivision three of section 120.50 of this article and in the course of and in furtherance of the commission of such offense: (i) displays, or possesses and threatens the use of, a firearm, pistol, revolver, rifle, shotgun, machine gun, electronic dart gun, electronic stun gun, cane sword, billy, blackjack, bludgeon, metal knuckles, chukka stick, sand bag, sandclub, slingshot, slungshot, shirken, “Kung Fu Star,” dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, dangerous instrument, deadly instrument or deadly weapon; or (ii) displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

      (2) Commits the crime of stalking in the third degree in violation of subdivision three of section 120.50 of this article against any person, and has previously been convicted, within the preceding five years, of a specified predicate crime as defined in subdivision five of section 120.40 of this article, and the victim of such specified predicate crime is the victim, or an immediate family member of the victim of the present offense; or

      (3) Commits the crime of stalking in the fourth degree and has previously been convicted of stalking in the third degree as defined in subdivision four of section 120.50 of this article against any person; or

      (4) Being twenty-one years of age or older, repeatedly follows a person under the age of fourteen or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place such person who is under the age of fourteen in reasonable fear of physical injury, serious physical injury or death.

      (5) Commits the crime of stalking in the third degree, as defined in subdivision three of section 120.50 of this article, against ten or more persons, in ten or more separate transactions, for which the actor has not been previously convicted. Stalking in the second degree is a class E felony.

      4) N.Y. Penal Law § 120.60 – Stalking in the first degree

      A person is guilty of stalking in the first degree when he or she commits the crime of stalking in the third degree as defined in subdivision three of section 120.50 or stalking in the second degree as defined in section 120.55 of this article and, in the course and furtherance thereof, he or she:

      (1) Intentionally or recklessly causes physical injury to the victim of such crime; or

      (2) Commits a class A misdemeanor defined in article 130 of this chapter, or a class E felony defined in section 130.25, 130.40, or 130.85 of this chapter, or a class D felony defined in section 130.30 or 130.45 of this chapter. Stalking in the first degree is a class D felony.

    3. Cases

      1. People v. Stuart, 797 N.E.2d 28 (N.Y. 2003)

        • Procedural Posture: Review of affirmance of conviction for stalking in the fourth degree.

        • Law: Stalking

        • Facts: Although the defendant did not know his victim, a twenty-two year old student, he encountered her outside of a store on Valentine’s Day and presented her with a bouquet. After that, he continued to trail her for weeks on end, despite her consistent complaints, and her efforts to change her regular patterns. She filed two police reports, and after she’d filed her third report, the police arrested the defendant and charged him with one count of third-degree stalking, two counts of fourth-degree stalking, and one count of first-degree harassment. After some claims were dismissed, defendant moved to dismiss the fourth-degree stalking charges, claiming that the statute was unconstitutionally vague both on its face and as applied to him. He argued that the statute did not give people adequate notice as to the conduct it proscribes or sufficient guidance to the police charged with enforcement of the law.

        • Outcome: The court upheld the conviction and denied the challenge. The court held that aside from one portion of the statute stating that the defendant’s behavior must have “no legitimate purpose,” “the statute contains lucid provisos clearly applicable to defendant’s conduct: The course of conduct must be intentional; it must be aimed at a specific person, and the offender must know (or have reason to know) that his conduct will (or likely will) instill reasonable fear of material harm in the victim. In the case of subdivision (2), the offender must have been told to cease his conduct after having followed, telephoned or initiated communication with the victim.”2 Here, the defendant gave no explanation for his actions or why they were legitimate, so the court deemed his conduct “illegitimate,”3 and, because of the victim’s fear of harm, the court upheld the conviction.4

        • Special Notes: The court discussed the interplay between “as-applied” and “facial” challenges, and analyzed this as an “as-applied” challenge.5

    4. Practice Pointers

      Although a WMC victim may know her stalker, the New York laws are equally applicable to situations where the stalker is a stranger.6

    1. People v. Stuart, 797 N.E.2d 28, 29 (N.Y. 2003). 

    2. Stuart, 797 N.E.2d at 41. 

    3. Id. 

    4. Id. 

    5. See Id. at 34-37. 

    6. See Id. 

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  6. Voyeurism

    1. Introduction

      The New York legislature enacted the statutes in 2003 as part of a group of laws targeting video voyeurism, which, collectively, are referred to as “Stephanie’s Law,” in recognition of a woman who promoted the law after being secretly videotaped by her landlord in her bedroom through a hidden camera hidden in the smoke detector above her bed.

    2. Text of Statutes & Regulations

      1) NY Penal Law § 250.40 – Definitions

      The following definitions shall apply to sections 250.45, 250.50, 250.55, and 250.60 of this article:

      (1) “Place and time when a person has a reasonable expectation of privacy” means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy.

      (2) “Imaging device” means any mechanical, digital or electronic viewing device, camera, cellular phone or any other instrument capable of recording, storing, or transmitting visual images that can be utilized to observe a person.

      (3) “Sexual or other intimate parts” means the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment.

      (4) “Broadcast” means electronically transmitting a visual image with the intent that it be viewed by a person.

      (5) “Disseminate” means to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person.

      (6) “Publish” means to (a) disseminate, as defined in subdivision five of this section, with the intent that such image or images be disseminated to ten or more persons; or (b) disseminate with the intent that such images be sold by another person; or (c) post, present, display, exhibit, circulate, advertise or allows access, electronically or otherwise, so as to make an image or images available to the public; or (d) disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessible, electronically or otherwise and to make such image or images available to the public.

      (7) “Sell” means to disseminate to another person, as defined in subdivision five of this section, or to publish, as defined in subdivision six of this section, in exchange for something of value.

      2) NY Penal Law § 250.45 – Unlawful Surveillance in the Second Degree

      A person is guilty of unlawful surveillance in the second degree when:

      (1) For his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

      (2) For his or her own, or another person’s sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

      (3) (a) For no legitimate purpose, he or she intentionally sues or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent.

      (b) For the purposes of this subdivision, when a person uses or installs, or permits the utilization or installation of an imaging device in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a hotel, motel, or inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or

      (4) Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person. Unlawful surveillance in the second degree is a class E felony.

      3) NY Penal Law § 250.50 – Unlawful Surveillance in the First Degree

      A person is guilty of unlawful surveillance in the first degree when he or she commits the crime of unlawful surveillance in the second degree and has been previously convicted within the past ten years of unlawful surveillance in the first or second degree. Unlawful surveillance in the first degree is a class D felony.

      4) NY Penal Law § 250.55 – Dissemination of Unlawful Surveillance Image in the Second Degree

      A person is guilty of dissemination of an unlawful surveillance image in the second degree when he or she, with knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, intentionally disseminates such image or images.
      Dissemination of an unlawful surveillance image in the second degree is a class A misdemeanor.

      5) NY Penal Law § 250.60 – Dissemination of Unlawful Surveillance Image in the First Degree

      A person is guilty of dissemination of an unlawful surveillance image in the first degree when:

      (1) He or she, with knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, sells or publishes such image or images; or

      (2) Having created a surveillance image in violation of section 250.45 or 250.50 of this article, or in violation of the law in any other jurisdiction which includes all of the essential elements of either such crime, or having acted as an accomplice to such crime, or acting as an agent to the person who committed such crime, he or she intentionally disseminates such unlawfully created image; or

      (3) He or she commits the crime of dissemination of an unlawful surveillance image in the second degree and has been previously convicted within the past ten years of dissemination of an unlawful surveillance image in the first or second degree. Dissemination of an unlawful surveillance image in the first degree is a class E felony.

      6) NY Penal Law § 250.65 – Additional Provisions

      (1) The provisions of sections 250.45, 250.50, 250.55, and 250.60 of this article do not apply with respect to any: (a) law enforcement personnel engaged in the conduct of their authorized duties; (b) security system wherein a written notice is conspicuously posted on the premises stating that a video surveillance system has been installed for the purpose of security; or (c) video surveillance devices installed in such a manner that their presence is clearly and immediately obvious.

      (2) With respect to sections 250.55 and 250.60 of this article, the provisions of subdivisions two of section 235.15 and subdivisions one and two of section 235.24 of this chapter shall apply.

    3. Cases

      1. People v. Morriale, 859 N.Y.S.2d 559 (N.Y. Crim. Ct. 2008)

        • Procedural Posture: Defendant charged with dissemination of an unlawful surveillance image in the second degree moved to dismiss the complaint.

        • Law: NY Penal Law § 250.55

        • Facts: The state filed a superseding complaint because the original complaint had failed to allege that the defendant acted without the victim’s knowledge or consent. The superseding complaint alleged that defendant used a camera phone to videotape himself having sexual intercourse with the victim on two separate occasions on the same date without her knowledge, permission or authority. It also alleged that defendant sent his videos to at least one other person and to his own email account without the victim’s permission or authority to do so.

        • Outcome: The court dismissed the superseding complaint for: (1) failing to allege that defendant had been previously convicted within the past ten years of unlawful surveillance in the first or second degree; (2) failing to allege facts to satisfy the essential elements of unlawful surveillance in the second degree; (3) failing to allege facts from which it could be inferred that the complainant was viewed at a time and place when she had a reasonable expectation of privacy, for failing to allege that the camera phone was installed “in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel, or inn. . .”; and (4) failing to allege that the perpetrator installed the device to broadcast the sexual parts of the victim under the clothing.1

        • Special Notes: The court also noted that the charge of “dissemination” required that the perpetrator “give, provide, lend, deliver, mail, send, forward, transfer, or transmit electronically or otherwise” the image at issue “to another person.”2 Because the defendant’s alleged transmission of the video over email to himself was not “to another person,” as defined, the court dismissed one count of the charge.3

    4. Practice Pointers

      People v. Morriale notes that the case was one of “first impression” because at the time, there were “no reported decisions interpreting the . . . statute.”4

    1. People v. Morriale, 869 N.Y.S.2d 559, 561 (N.Y. Crim. Ct. 2008). 

    2. NY Penal Law § 250.40(5) (emphasis added). 

    3. Morriale, 869 N.Y.S.2d at 559-60. 

    4. Id. at 560 (“As there are no reported decisions interpreting the instant statute, it appears that this is a case of first impression.”)  

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  7. Menacing

    1. Introduction

      In situations in which an intentional aggressor makes a WMC victim fear for his or her life, various forms of menacing may be at issue.

    2. Text of Statutes

      1) N.Y. Penal Law § 120.13 – Menacing in the first degree

      A person is guilty of menacing in the first degree when he or she commits the crime of menacing in the second degree and has been previously convicted of the crime of menacing in the second degree or the crime of menacing a police officer or peace officer within the preceding ten years. Menacing in the first degree is a class E felony.

      2) N.Y. Penal Law § 120.14 – Menacing in the second degree

      A person is guilty of menacing in the second degree when:

      (1) He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

      (2) He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death; or

      (3) He or she commits the crime of menacing in the third degree in violation of that part of a duly served order of protection, or such order which the defendant has actually knowledge of because he or she was present in court when such order was issued, pursuant to article eight of the family court act, section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was issued. Menacing in the second degree is a class A misdemeanor.

      3) N.Y. Penal Law § 120.15 - Menacing in the third degree

      A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury. Menacing in the third degree is a class B misdemeanor.

    3. Cases

      Research is ongoing. My search of New York cases citing these statutes did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Where someone is a repeat offender, the level of the crime and the potential punishments both increase exponentially.

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  8. Trespass

    1. Introduction

      In a situation where a WMC victim is being filmed, photographed, stalked, harassed, etc. by an individual who has unlawfully entered upon his or her property, he or she could bring a claim of criminal trespass.

    2. Text of Statutes

      1) N.Y. Penal Law § 140.10 – Criminal trespass in the third degree A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property

      (1) Which is fenced or otherwise enclosed in a manner designed to exclude intruders; or

      (2) Where the building is utilized as an elementary or secondary school or a children’s overnight camp as defined in section one thousand three hundred ninety-two of the public health law or a summer day camp as defined in section one thousand three hundred ninety-two of the public health law in violation of conspicuously posted rules or regulations governing entry and use thereof; or

      (3) Located within a city with a population of in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal custodian or other person in charge thereof; or

      (4) Located outside of a city with a population in excess of one million and where the building of real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian, school board, member or trustee, or other person in charge thereof; or

      (5) Where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or

      (6) Where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof; or

      (7) Where the property consists of a right-of-way or yard of a railroad or rapid transit railroad which has been designated and conspicuously posted as a no-trespass railroad zone, pursuant to section eighty-three-b of the railroad law, by the city or county in which such property is located. Criminal trespass in the third degree is a class B misdemeanor.

      2) N.Y. Penal Law § 140.15 – Criminal trespass in the second degree

      A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a dwelling. Criminal trespass in the second degree is a Class A misdemeanor.

      3) N.Y. Penal Law § 140.17 – Criminal trespass in the first degree

      A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a building, and when, in the course of committing such crime, he:

      (1) Possesses, or knows that another participant in the crime possesses, an explosive or a deadly weapon; or

      (2) Possesses a firearm, rifle or shotgun, as those terms are defined in section 265.00, and also possesses or has readily accessible a quantity of ammunition which is capable of being discharged from such firearm, rifle or shotgun; or

      (3) Knows that another participant in the crime possesses a firearm, rifle or shotgun under circumstances described in subdivision two. Criminal trespass in the first degree is a class D felony.

    3. Cases

      Research is ongoing. My search of New York cases citing these statutes did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      A claim for trespass will probably accompany other types of claims, e.g. harassment, etc., and will only be viable in situations where the perpetrator was unlawfully on the victim’s property.

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  9. Offenses Against the Public Order (e.g. Harassment, Nuisance)

    1. Introduction

      In situations in which a WMC victim is harassed either online or otherwise, the State may charge a defendant with criminal harassment or nuisance. It may be particularly apt in situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

    2. Text of Statutes

      1) N.Y. Penal Law § 240.25 – Harassment in the first degree

      A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury. This section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended. Harassment in the first degree is a class B misdemeanor.

      2) N.Y. Penal Law § 240.26 - Harassment in the second degree

      A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another follows a person in or about a public place or places; or (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. Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended. Harassment in the second degree is a violation.

      3) N.Y. Penal Law § 240.30 – Aggravated harassment in the second degree

      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) Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or

      (2) Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or

      (3) Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or

      (4) Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years. (5) For the purposes of subdivision one of this section, “form of written communication” shall include, but not be limited to, a recording as defined in subdivision six of section 275.00 of this part. Aggravated harassment in the second degree is a class A misdemeanor.

      4) N.Y. Penal Law § 240.45 – Criminal nuisance in the second degree

      A person is guilty of criminal nuisance in the second degree when: (1) By conduct either unlawful or in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons; or (2) He knowingly conducts or maintains any premises, place or resort where persons gather for the purposes of engaging in unlawful conduct. Criminal nuisance in the second degree is a class B misdemeanor.

      5) N.Y. Penal Law § 240.46 - Criminal nuisance in the first degree

      A person is guilty of criminal nuisance in the first degree when he knowingly conducts or maintains any premises, place or resort where persons come or gather for purposes of engaging in the unlawful sale of controlled substances in violation of section 220.39, 220.41, or 220.43 of this chapter, and thereby derives the benefit from such unlawful conduct. Criminal nuisance in the first degree is a class E felony.

    3. Cases

      1. People v. Soler, 859 N.Y.S.2d 514 (N.Y. App. Div. 2008)

        • Procedural Posture: Appeal by defendant of finding of jury trial finding him guilty of criminal contempt in the first degree, aggravated harassment in the second degree, and sentencing him as a predicate felon to concurrent terms of two years in prison for criminal contempt conviction, and one year for aggravated harassment conviction.

        • Law: N.Y. Penal Law § 240.30

        • Facts: Defendant was in his first year of marriage to the victim when he was charged and convicted of feloniously assaulting her. He was sentenced to jail and the court issued an order of protection directing defendant to avoid any contact with his spouse. In April 2005, he called the victim numerous times at her home, and she reported the calls to the police. She testified that he called her between 10 and 20 times at home and at work, and that he would often threaten her when she refused to talk to him. Defendant argued on appeal that the evidence introduced at trial was insufficient to convict him on the charges.

        • Outcome: The court affirmed the convictions because the defendant confirmed receipt of the order of protection, and the court believed the victim’s testimony that defendant called her numerous times despite his claim that he only called her one time, directly following the death of her grandfather.

    4. Practice Pointers

      There are no relevant practice pointers to add here at this time.

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  10. Hate Crimes

    1. Introduction

      Where a victim is specifically targeted because of his or her race, color, religion, ancestry, nationality, gender, sexual orientation, or mental, physical or sensory handicaps, this statute may provide relief. The law has mostly been used in religious or race-related crimes.

    2. Text of Statutes

      1) N.Y. Penal Law § 485.00 – Legislative Findings

      The legislature finds and determines as follows: criminal acts involving violence, intimidation and destruction of property based upon bias and prejudice have become more prevalent in New York state in recent years. The intolerable truth is that in these crimes, commonly and justly referred to as “hate crimes,” victims are intentionally selected, in whole or in part, because of their race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation. Hate crimes do more than threaten the safety and welfare of all citizens. They inflict on victims incalculable physical and emotional damage and tear at the very fabric of free society. Crimes motivated by invidious hatred toward particular groups not only harm individual victims, but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs. Hate crimes can and do intimidate and disrupt entire communities and vitiate the civility that is essential to healthy democratic processes. In a democratic society, citizens cannot be required to approve of the beliefs and practices of others, but must never commit criminal acts on public order and individual safety that hate crimes cause. Therefore, our laws must be strengthened to provide clear recognition of the gravity of hate crimes and the compelling importance of preventing their recurrence. Accordingly, the legislature finds and declares that hate crimes should be prosecuted and punished with appropriate severity.

      2) N.Y. Penal Law § 485.05

      (1) A person commits a hate crime when he or she commits a specified offense and either: (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation of a person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.

      (2) Proof of race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of the defendant, the victim or of both the defendant and the victim does not, by itself, constitute legally sufficient evidence satisfying the people’s burden under paragraph (a) or (b) of subdivision one of this section.

      (3) A “specified offense” is an offense defined by any of the following provisions of this chapter: section 120.00 (assault in the third degree); section 120.05 (assault in the second degree); section 120.10 (assault in the first degree); section 120.12 (aggravated assault upon a person less than eleven years old); section 120.13 (menacing in the first degree); section 120.13 (menacing in the second degree); section 120.15 (menacing in the third degree); section 120.20 (reckless endangerment in the second degree); section 120.25 (reckless endangerment in the first degree); subdivision one of section 125.15 (manslaughter in the second degree); subdivision one, two or four of section 125.20 (manslaughter in the first degree); section 125.25 (murder in the second degree); section 120.45 (stalking in the fourth degree); section 120.50 (stalking in the third degree); section 120.55 (stalking in the second degree); section 120.60 (stalking in the first degree); subdivision one of section 130.35 (rape in the first degree); subdivision one of section 130.50 (criminal sexual act in the first degree); subdivision one of section 130.65 (Sexual abuse in the first degree); subdivision one of section 130.65 (sexual abuse in the first degree); paragraph (a) of subdivision one of section 130.67 (aggravated sexual abuse in the second degree); paragraph (a) of subdivision one of section 130.70 (aggravated sexual abuse in the first degree); section 135.05 (unlawful imprisonment in the second degree); section 135.10 (unlawful imprisonment in the first degree); section 135.20 (kidnapping in the second degree); section 135.24 (kidnapping in the first degree); section 135.60 (coercion in the second degree); section 135.65 (coercion in the first degree); section 140.10 (criminal trespass in the third degree); section 140.15 (criminal trespass in the second degree); section 140.16 (criminal trespass in the first degree); section 140.20 (burglary in the third degree); section 140.25 (burglary in the second degree); section 140.30 (burglary in the first degree); section 145 (criminal mischief in the fourth degree); section 145.05 (criminal mischief in the fourth degree); section 145.05 (criminal mischief in the third degree); section 145.10 (criminal mischief in the second degree); section 145.12 (criminal mischief in the first degree); section 150.05 (arson in the fourth degree); section 150.10 (arson in the third degree); section 150.15 (arson in the second degree); section 150.20 (arson in the first degree); section 155.25 (petit larceny); section 155.30 (grand larceny in the fourth degree); section 155.35 (grand larceny in the third degree); section 155.40 (grand larceny in the second degree); section 155.42 (grand larceny in the first degree); section 160.06 (robbery in the third degree); section 160.10 (robbery in the second degree); section 160.15 (robbery in the first degree); section 240.25 (harassment in the first degree); subdivision one, two or four of section 240.30 (aggravated harassment in the second degree); or any attempt or conspiracy to commit any of the foregoing offenses.

      (4) For purposes of this section: (a) the term “age” means sixty years old or more; (b) the terms “disability” means a physical or mental impairment that substantially limits a major life activity.

      3) N.Y. Penal Law § 485.10 – Sentencing

      (1) When a person is convicted of a hate crime pursuant to this article, and the specified offense is a violent felony offense, as defined in section 70.02 of this chapter, the hate crime shall be deemed a violent felony offense.

      (2) When a person is convicted of a hate crime pursuant to this article and the specified offense is a misdemeanor or a class C, D or E felony, the hate crime shall be deemed to be one category higher than the specified offense the defendant committed, or one category higher than the offense level applicable to the defendant’s conviction for an attempt or conspiracy to commit a specified offense, whichever is applicable.

      (3) Notwithstanding any other provision of law, when a person is convicted of a hate crime pursuant to this article and the specified offense is a class B felony: (a) the maximum term of the indeterminate sentence must be at least six years if the defendant is sentenced pursuant to section 70.00 of this chapter; (b) the term of the determinate sentence must be at least eight years if the defendant is sentenced pursuant to section 70.02 of this chapter; (c) the term of the determinate sentence must be at least twelve years if the defendant is sentenced pursuant to section 70.04 of this chapter; (d) the maximum term of the indeterminate sentence must be at least four years if the defendant is sentenced pursuant to section 70.05 of this chapter; and (e) the maximum term of the indeterminate sentence or the term of the determinate sentence must be at least ten years if the defendant is sentenced pursuant to section 70.06 of this chapter.

      (4) Notwithstanding any other provision of law, when a person is convicted of a hate crime pursuant to this article and the specified offense is a class A-1 felony, the minimum period of the indeterminate sentence shall be not less than twenty years.

    3. Cases

      Research is ongoing. A search of New York law did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Because the New York hate crimes laws relate only to the harassment or mistreatment of certain groups of minorities, a WMC victim may bring a claim under the hate crimes statute alongside various other claims for stalking, etc. However, it is highly unlikely that a WMC victim will bring a claim under this law by itself.

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