New York Stalking Law Introduction
Understanding New York Stalking Laws
The concept of stalking is familiar to most people, yet many are surprised to learn just how comprehensive New York laws are with respect to these acts. Stalking has been made a serious criminal offense that can result in arrest and conviction on felony-level charges under New York law. The problem does not just involve strangers, either. Many stalking incidents occur among former significant others or those who had hoped to be in a personal relationship. Stalking acts can be made by phone, text message, on social media and even through cyberstalking methods. There may be ways with which you could protect yourself from this type of unwanted attention through a variety of approaches and you should understand the law before you are in a situation where you feel unsafe or threatened.
Stalking is the act of a person directing threats or unwanted communication that causes fear in the victim for their own safety or the safety of a family member. Stalking can involve the person showing up at the victim’s place of employment , keeping track of their movements through mobile phone or social media, or making harassing phone calls that the victim finds bothersome or threatening. There are varying classifications of stalking that New York law makes available to victims of this type of harassment.
The basic charges include:
During certain circumstances, laboratory tests can be conducted to determine whether the alleged stalker committed the act that has prompted fear in the victim. A lawyer can advise you on the pros and cons of these tests and whether or not they may affect the outcome of your case for better or worse.
What is Stalking in NY?
Under the penal law, the crime of stalking is defined as follows: "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 that is likely to cause that person alarm, annoyance, fear or serious alarm or serious annoyance." (Penal Law §120.45.)
The law goes on to state that it is "a defense that the course of conduct consisted of attempts to communicate or communicate with the person being stalked, provided that such communication was not initiated or continued after such other person clearly disapproved of such communications."
Thus the law recognizes that while a persistent person who repeatedly contacts a person may be viewed in the public’s eye as doing something wrong, the person engaged in that behavior may have a reasonable basis for his or her doing so. That is what needs to be ferreted out by the fact finder.
As part and parcel of the law, "course of conduct" is defined as a "course of conduct which includes two or more acts, whether or not there exists any relationship between those persons. For the purpose of this section, ‘course of conduct’ also includes both noncomputerized and computerized communications." Penal Law § 120.45 (1).
The key word in the section defining course of conduct is "includes." If course of conduct includes the language of the statute, then course of conduct also might include other forms of behavior previously deemed not to be covered by the statute. If an employer is found to have stalked an employee, it may be because the employer’s behavior involved offers or seek to offer an unwelcome benefit to the employee conditioned upon submission, or that such an offer was made but rejected by the employee. That is conduct that constitutes sexual harassment. Because stalking requires a course of conduct which may bring about "fear or serious alarm or serious annoyance," that conduct could include a single event if it causes vexation or alarm of sufficient scope.
Categories for Stalking in NY
Although potentially punitive, New York’s stalking law is very effective in identifying and prosecuting stalkers. Since stalking, by its very nature, creates fear and anxiety among victims, New York law takes a very aggressive posture toward stalking and provides strict categories for stalking.
• Harassment in the First Degree, New York Penal Law § 240.65. A person is guilty of harassment in the first degree when, with intent to aggravate the victim’s mental or physical health, safety, business, career, profession, education, financial condition, or personal relationships, he or she causes substantial harm to the tangible, physical property of the victim or a member of the victim’s family or household, or commits the crime of criminal contempt in violation of an order of protection granted pursuant to article eight of the Family Court Act.
• Stalking in the Second Degree, New York Penal Law § 120.55. A person is guilty of stalking in the second degree when, for the purpose of, or under circumstances evincing a depraved indifference to the value of human life, he or she intentionally and for no legitimate purpose engages in a course of conduct directed at a specific person which:
• Stalking in the Third Degree, New York Penal Law § 120.40. A person is guilty of stalking in the third degree when he or she intentionally and repeatedly engages in a course of conduct that includes following, is in proximity to, or engaging in a similar course of conduct towards another person for the purpose of engaging in the course of conduct or inducing fear for the physical safety of that person or a third person.
Stalking in New York: Consequences
In New York, stalking crimes range from first-degree felonies to misdemeanor offenses. Nonetheless, penalties for all stalking crimes are relatively harsh. When assessing how serious a stalking charge is, the District Attorney Weight in each County considers the victim’s risk of physical harm, whereas the Judge considers any mandatory sentencing requirements when it comes time to pass a sentence. Fines, probation, anger management, and jail time could all be connected to a stalking conviction. The exact penalties sometimes depend upon the number of prior stalking convictions a defendant has on his or her record.
For a first-degree felony conviction, where the defendant caused physical injury to another person during a crime, a defendant may face a fine of up to $15,000 and an imprisonment term of up to 25 years. On the other hand, if the defendant only stalked a victim (i.e., without causing physical injury), he or she may face a fine of up to $7,500 and up to 15 years of jail. For a second-degree felony charge, the fine may be up to $7,500 and the jail sentence may be up to 7 years. In New York, both of these stalking crimes are considered violent felonies, which can carry a much higher sentence. A violent felony conviction will result in mandatory imprisonment, and the offender will not get credit for time served. All first-degree felony violent convictions have a mandatory minimum sentence of 5 years in New York. However, if the arresting officer noticed that a stalking suspect has committed several recent stalking crimes, the officer might charge the suspect with several felonies.
As to a third-degree felony offense, a defendant may face a fine of up to $1,000, up to 7 years in jail, or both. The mandatory minimum jail sentence is generally 2 years. A fourth-degree felony charge is associated with a minimum fine of $1,000, but up to 1 year in jail or probation. Alternatively, the defendant may receive community service in lieu of jail time. If a stalking suspect has committed multiple stalking crimes, then the police officer might charge the suspect with consecutive crimes. The suspect could then end up facing a slew of misdemeanors with huge maximum fines. Such misdemeanor convictions still fall under the numerous restrictions that accompany felony convictions.
Prevention Orders for Stalking Victims
Protective measures in the form of orders of protection are available to all victims of a stalking crime in New York. At times, orders of protection are issued in conjunction with an arrest in the case or as a condition of bail release. Orders of protection may be full or temporary in nature, and they are served upon the defendant at the time that they are issued so that the defendant has immediate notice of their restrictions and responsibilities. The terms of these orders vary in each case , but may include prohibitions on the following: From Violating the law or committing additional crimes; Using, carrying or possessing any dangerous instrument or weapon; Communicating, directly or indirectly, in any way with the victim or co-victim(s); Being within a specified distance of the victim or co-victims; Initiating communication with the victim or co-victims; and Possessing any illegal substance. In many cases, orders of protection may be issued for in court violations of prior orders, even if the defendant is not charged.
Changes to Stalking Penalties
Recent Amendments to New York Stalking Laws
The criminal offenses and penalties for stalking and aggravated stalking cases in New York are now codified in Article 120 of the penal law. Under this law, stalking is now not only a felony but also a misdemeanor and is divided into three degrees.
Stalking in the Fourth Degree (Class B Misdemeanor) is governed by PL 120.45. In order for an act to rise to the level of stalking in the fourth degree, a person must, "With no legitimate purpose, intentionally and repeatedly follows or harasses another person." The statute also provides a list of enumerated conduct that constitutes harassment, including but not limited to: Following the person during the course of employment or at home; making verbatim or near-verbatim communications; hacking the person’s computer or cell phone; and harassing familial or professional contacts.
Stalking in the Third Degree (Class A Misdemeanor) is governed under PL 120.50. The statute essentially prohibits a person from engaging in similar conduct as Stalking in the Fourth Degree but elevates the crime to a misdemeanor if the person committing the act has a previous conviction for stalking or where the person causes physical injury, property damage or the like.
Stalking in the Second Degree (Class E Felony) is governed by PL 120.55. The statute elevates the crime to a felony if the person is previously convicted of stalking or engages in conduct that places a victim at risk of physical harm or serious financial harm. Furthermore, Stalking in the Second Degree increases from a Class E Felony to a Class D felony where a person "intentionally puts another person in reasonable fear of physical injury or serious financial harm and has previously been convicted of a felony or misdemeanor" or the person commits the conduct over a "lengthy period of time" while the aforementioned conditions are present.
Several other changes were enacted in 2016 when the legislature, in an effort to increase the penalties and definition for harassment and bullying behavior, amended sections 8701 and 8702 of the education law. Under the new definitions, the legislature broadened what conduct could constitute harassment and bullying or cyber bullying and augmented the education systems’ role in identifying, investigating such conduct and how to penalize.
Stalking and aggravated stalking share a unique distinction in that they are both criminalized acts that address both the physical and mental health needs of victims. Specifically, stalking and aggravated stalking were criminalized to keep victims safe from unwanted contact, both physical and virtual, and guilt those perpetrators into stopping the conduct by threatening punishment.
Unfortunately, there was no provision in the law addressing what relief a victim can obtain when he/she is the victim of a stalker or aggravated stalker. Previously, courts were limited to imposing an Order of Protection issued after a person was charged with a crime. These orders would usually prevent a perpetrator from communicating with a victim and prohibiting the perpetrator from coming near the victim. However, these statutes did not go far enough in safeguarding victims of stalking or aggravated stalking.
Earlier in the year, New York passed a new law that allows an alleged victim of stalking to obtain an order of protection, even if a perpetrator has not been charged with a crime. Now, a victim can petition the family or criminal court for a temporary order of protection where the victim fears harm from a stalker. The order can include prohibitions from communicating with the victim or coming near the victim, as well as, award custody and child support. The new law provides omitted relief to victims who did not have a full remedy under the stalking and aggravated stalking criminal laws.
Resources for Stalking Victims
There are numerous resources available for victims of stalking in New York. The New York Division of Criminal Justice Services maintains a list of hotlines, support groups, and other resources. Some of the additional resources include:
New York State Office of Victim Services
The purpose of the New York State Office of Victim Services is to assist crime victims in rebuilding their lives after the financial devastation which can occur as a result of a crime. The Office seeks to help victims by obtaining compensation for victims’ physical and emotional injuries, assisting victims with their social safety net needs, and helping them understand the criminal justice system.
New York State Coalition Against Sexual Assault
The New York State Coalition Against Sexual Assault is a leading resource and advocate for the prevention of sexual violence in all its forms. As experts in this field , the Coalition provides educational and technical assistance, and leadership to all sectors of the community. Its mission is to promote a coordinated response to sexual violence, prevention efforts, and the care of sexual assault victims.
National Center for Victims of Crime
The National Center for Victims of Crime provides many free services to help victims recover from the trauma they have suffered. The Center operates the Stalking Resource Center, which provides a website specifically designed to assist stalking victims with access to resources and create awareness about stalking.
The National Center also runs a state specific state specific victim assistance website to not only provide resources for victims of crime but to help raise public awareness.
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