In-depth on New York State Stalking Statutes
The definition and scope of the New York State (NYS) stalking laws are detailed in Article 121 (Stalking) of the NYS Penal Code, defined within Section 120.45 through Section 120.61. Although the term "stalking" has become a buzzword over the last decade, under the Penal Code the term holds a much more specific meaning based upon a specific intent to harass, annoy, or alarm a person by conduct which serves no legitimate purpose.
In specific, three classes of criminal activity fall under Stalking as outlined in the Penal Code: Stalking in the 4th Degree (Class B misdemeanor), 3rd Degree (Class A misdemeanor), and 2nd (Class D felony) and 1st Degree (Class B felony). Not everyone who is considering pursuing an order of protection is the victim of criminal stalking. However, because someone who engages in this conduct is driving or otherwise using the internet or U.S. Postal Services, or even an "intrusive act" to contact the victim, there may be a "civil harassment" angle that can be pursued in Family Court.
The crime of Stalking in the 4th Degree under New York Penal Code is the least serious of the class. It is a class B misdemeanor, wherein the actor intentionally and for no legitimate purpose engages in a course of conduct directed at a specific person which causes such person to reasonably fear physical harm to themselves or to a third person, and may cause the victim to suffer substantial emotional distress. Stalking in the 4th Degree may be charged as a misdemeanor even if there is no prior relationship between the defendant and the victim. Therefore , it is not a necessary criteria for proving Stalking in Third Degree.
The Stalking in the 4th Degree statute is defined under NYS Penal Law § 120.45; it is punishable by imprisonment of up to one year, and/or three years of probation and/or a fine. The text of the law is as follows: A person is guilty of stalking in the fourth degree when, with no legitimate purpose, he or she intentionally and repeatedly engages in the following course of conduct that either (a) is likely to cause alarm or serious emotional distress to another person, or (b) causes another person to reasonably fear physical harm: The Stalking in the 3rd degree statute is defined under NYS Penal Code § 120.50; it is a Class A misdemeanor punishable by imprisonment of up to one year, and/or three years of probation, and/or a fine of up to $1,000. The text of the law is as follows: A person is guilty of stalking in the third degree when he or she: Stalking in the 2nd Degree is a Class D felony; and the statute (NYS Penal Law § 120.55) reads as follows: Except as provided in section 120.55, a person is guilty of stalking in the second degree when he or she commits the crime of stalking in the third degree as defined in subdivision one, two, three or four of section 120.50 of this article and in the course of and in furtherance of such course of conduct, he or she: Stalking in the 1st Degree is a Class B felony and it is punishable by up to 25 years imprisonment.
NYS Stalking Degrees Explained
The New York State Penal Law Sections 120.45 – 120.50 codify the offenses most commonly referred to as "Stalking." As per the statute, while a "course of conduct" may involve many different forms of contact, such conduct does not constitute stalking unless the intent portion is proven. In other words, if defendant did not intend to instill fear, intimidation, or alarm in the plaintiff, it does not rise to the level of stalking. In all cases, "a threat of physical harm, based on the experiential impact on the person threatened" is an element.
Thus, we theoretically have Stalking 1st, 2nd and 3rd, the relevant statutes being 120.50, 120.45 and 120.40 respectively. There is really no stalking 4th since the fourth section outlines the "penalty" for 2nd and 3rd degree Stalking that has been committed previously in a different jurisdiction.
Given the above, one can see that there is a distinction between 1st, 2nd and 3rd degree Stalking, i.e., Stalking in the 1st degree is intended to punish and prevent a person from committing the highest level of Stalking offense, while a Stalking 2nd degree conviction is intended to punish and prevent a person from committing the lower levels of Stalking offenses.
Stalking in the 1st degree is a Class D felony. The fear must be that defendant will physically harm the individual or a third party, or that, "by threatening", the defendant would cause the individual’s mental health to suffer. Thus, long term stalking involves stalking offense categories 1 through 3 and the emotional distress to the plaintiff. Therefore, given a continual "course of conduct", stalking in the 1st degree may be justified if it is proven by clear and convincing evidence. Generally, stalking in the 1st degree results in 5 years probation, an $11,000 fine and one year of jail time.
The legal ramifications of stalking in the NYS
Criminal Consequences: Individuals convicted of either third degree or second degree stalking face criminal fines and incarceration. While a third degree stalking conviction may result in a conviction for a Class B misdemeanor, a second degree stalking conviction could result in a felony Class E. Additionally, a person convicted of stalking could be mandated to participate in counseling as a part of his or her sentencing. The judge also has discretion in terms of determining conditional discharge, supervised probation, and unsupervised probation.
Civil Consequences: Under certain circumstances, individuals who are found to be stalking another person may be ordered by a court to pay monetary damages to the victim. Although stalking is not an intentional tort, many civil courts have held that the act of stalking can result in the infliction of severe emotional and mental distress on the victim. For example, if a stalker makes repeated and unique threats to an individual as a way to terrify and intimidate him or her, that individual could be entitled to money damages on the basis that the stalker intentionally inflicted severe emotional harm.
Stalking or Harassment?
As mentioned above, NYS stalking laws are based on aggravated harassment laws. But what’s the difference between harassment and stalking?
Harassment: As defined by Section 240, Aggravated Harassment in the 2nd Degree (1), a person is penalized for harassing someone when they are guilty of repeatedly yelling at them, following them, or subjecting them to any sort of physical contact.
Essentially, harassment requires that someone be guilty of a repeated action against someone else that makes that person feel distressed or threatened. Harassment is then broken down into degrees which define the severity of the actions taken. At this point, it is important to note that in order to refrain from any stalking activity, a person must know that "contact" of a "certain type" is unwanted.
Stalking: After New York State law defines what constitutes harassment, they go further to identify when harassment is serious enough to be considered stalking. Meaning that while all stalking is considered harassment, not all harassment is considered stalking. According to Penal Law § 120.45, when someone fails to obey an order of protection, it is a Class A Misdemeanor. When the same order is violated twice, or if it is violated by a felony level crime, it is classified as a Class D Felony. A Class D Felony is classified as a serious crime that could result in serious problems down the line. For people who have been found in violation of an order of protection, they could face up to 7 years in prison.
Victim rights and protections
Victims of stalking and their supporters may be encouraged to know that New York State has a number of laws and policies on the books to protect the victims of stalking, especially when it comes to obtaining orders of protection (commonly known by their former name, restraining orders). Depending on the matter, victims may seek these orders in criminal or family courts, both of which tend to take stalking extremely seriously.
When a victim applies for an order of protection, they are required to submit a temporary order of protection, which immediately goes into effect. Violations of these orders may result in criminal charges and jail time, especially if they involve some form of violence or a credible threat of future violence.
Judges in both criminal and family courts may issue an order of protection that covers the alleged victim’s guard, parent and children, as well as any other person who may be at risk of becoming a victim of the stalking incident. The order may include various forms of relief, such as excluding the stalker from a home , place of business or school. The court may additionally order the stalker to surrender any firearms they may own.
For victims who are in need of additional assistance, New York State provides a number of options. Those that have been sexually assaulted may be able to obtain assistance from rape crisis centers, which are designed to offer a safe space for victims and connect them to counseling options, among other services. Domestic violence shelters in the state are designed to provide assistance to those who have been the victims of abusive relationships, and in numerous counties throughout the state, district attorneys have victim advocates who can help with the process.
Law enforcement agencies throughout the state of New York are additionally trained to work with victims of stalking and possible stalking victims. In addition to helping with securing an order of protection, these agencies can help victims develop safety plans or otherwise connect them to the resources they need to get the situation under control.
New updates and case law
In recent years, there have been several changes to New York State’s stalking laws, and new case law that impacts the way these laws are interpreted. One of the most notable changes involves the public conduct of an offender, which was added as an aggravating factor to the definition of first degree stalking in 2010, when the law was amended by introducing the "extended course of conduct" read-in aggravator. This amendment, found in Penal Law Section 120.45(1)(a), was put into effect on November 1, 2010, and defines this aggravator as when "the offender intentionally commit[s] a first degree stalking offense and, during the commission of such offense, causes an aggravated physical injury to a person … engaged in whether or not to report the conduct by private mail, interstate or foreign mail or electronic mail, in a public place." In People v. Fagan, the Appellate Court affirmed the conviction of the first defendant there under the subsection read-in aggravator.
The Criminal Court has issued an 8/26/16 memorandum decision in the case of People v. Isidem that discusses the prosecution’s failure to prove the aggravating factor of conducting the aggravated first degree stalking offense in "a public place," under the new read-in aggravator, where the "location of the assault" was not "a public place." The Court explained, "[a]s defined by Penal Law § 240.00, a public place is an ‘any area outside of a home or other private property’". The Court went on to explain that "[t]he mere fact that the complainant and witness could hear the alleged conduct of the defendant while they were in their own homes was insufficient to establish that the alleged conduct took place in a ‘public place’. Rather, such alleged conduct must take place in "any area outside of a home or other private property.’" The Court then held that "[t]he People failed to present sufficient evidence establishing that the alleged conduct of defendant, from the sidewalk, was audible to the complainant or witness while they were inside of a private residence".
There have also been other notable decisions that analyzed the applicability of a prior permissible designation of "electronic communication" for purposes of the harassment statute (Penal Law Section 240.25) and stalking statute (Penal Law Section 120.45) to the current, ubiquitous Internet, social media and texting communication. One such decision is within the case of People v. Gates, in which the Court explained that: The Court of Appeals set forth a framework for examining timeworn statutes for their continued applicability to the rapid changes and developments in technologies involved in stalking and harassment prosecutions when it held that the phrase "other computerized communication" found in the prohibition against stalking in the second degree, P.L. § 120.45, was "not blue enough to cover the wide range of today’s advanced technological communication devices…." However, the Court of Appeals stopped short of holding that "computerized communication" was non-"written" or "printed" communication, saying instead, "we leave to the lower courts to determine the kinds of ‘computerized communications’ that will fall within the prohibition [of Section 120.45]."
In the case of People v. Davis, the Appellate Division analyzed the continuous and ongoing nature of temporary orders of protection in even older cases that predate the passage of the stalking statute, and they continued to follow this logic in People v. Myers and People v. Ponce.
Prevention and resources
Understand that your situation and your needs are unique. While many of these ideas work for many people, they may not work for you, or your needs may be different.
Record any stalking incident. This may be difficult for you to do in the moment, but it is vital for any legal follow-up. Write down the date, time, your location, and what happened. Your thoughts about what occurred may be helpful. Take screenshots of all text messages and emails, videos and audio recordings, photographs, and applicable social media posts. Don’t erase anything, as it may be needed later.
Call the police. If you ever feel that you are in personal danger, or if the stalker physically harms you, call the police immediately. For stalking that does not involve an immediate threat of violence, you can still contact the police, but it is likely that their initial focus will be on giving you information and assistance, and the investigation will follow. You may also want to consider contacting the police if you have a No-Contact Order of Protection violation, in which a person disobeys court orders to stay away from you. Violating a No-Contact Order is a serious crime, even if both people seem to be willing participants.
If you feel comfortable, tell someone you trust your situation. Having a good support system is crucial , especially one that knows what is going on. Trust your instincts about who you can share important details with, and don’t hesitate to ask for help if you need it.
Reach out to campus security. Learning about your school’s protocol for dealing with stalkers at summer orientation can help inform your decisions when managing the situation. If you haven’t already been through the campus security program, contact your school’s security office about stalking and other student safety concerns.
Reach out to an attorney. If you are considering filing charges against someone, consult with an experienced criminal defense attorney. Having a legal professional on your side can help mitigate or eliminate the fallout from a potential criminal charge.
Restraining orders. Criminal cases are sometimes not the best answer for stalking, as both sides of the situation usually have something to gain from not pursuing a criminal trial. A civil restraining order or an Order of Protection can more effectively cease negative behaviors without serving a prison sentence. Consult with a criminal defense attorney to evaluate your options.
Find out about hotlines and resources. The NYC magistrate court has a 24-hour information hotline for domestic violence matters. There are also many resources available online, such as the National Center for Victims of Crime and the National Domestic Violence Hotline.