Elements of Stalking in New York
In New York State, stalking is defined as a course of conduct that targets a specific person and causes that person to either fear for their safety or the safety of a third party, or to experience substantial emotional distress. Stalking is considered a crime in New York State when a person engages in two or more of the following behaviors against a victim:
- (1) following, other than incidentally,
- (2) lying in wait for,
- (3) engaging in a course of conduct or repeatedly committing acts,
- (4) communicating,
- (5) sending, delivering, or causing to be delivered,
- (6) placing under a person’s or members of their immediate family’s workplace,
- (7) placing under a person’s or members of their immediate family’s residence,
- (8) placing under a person’s or members of their immediate family’s place of education,
- (9) placing under a person’s or members of their immediate family’s supervised or child care , health care, religious institution, or public transportation,
- (10) placing under a person’s or members of their immediate family’s place of employment, or
- (11) making a threat to harm,
- (12) physically injuring or attempting to physically injure,
- (13) sexually abusing, or
- (14) forcibly confining
the victim or a member of their immediate, family, or an individual with whom the victim has a substantial relationship. It is important to note that the "course of conduct" that is required for stalking to have occurred does not mean that the defendant must "stalk" the victim in-person, or physically follow them. A "course of conduct" can include anything from repeatedly calling or texting a victim, to leaving unwanted, harassing or threatening notes in their mailbox, to cyberstalking.
The following chart outlines the four degrees of stalking in New York State:
Second-degree stalking is a Class E felony.
Types of Stalking Offenses
Under New York State Penal Law, there are four distinct categories or degrees of stalking offenses. Each category carries different consequences and stipulations regarding what constitutes the criminal act of stalking. Stalking in the fourth degree is the least serious stalking offense one can commit under New York State Penal Law Section 120.45. According to subsection 1 of the statute, an individual commits this crime "if, for no legitimate purpose, he or she intentionally and repeatedly follows a person or engages in a course of conduct directed at a specific person that is likely to cause alarm or serious physical injury to such other person or that would cause a reasonable person to fear physical injury or to suffer substantial emotional.
The third degree of the crime of stalking encompasses virtually all intent of the fourth degree, but adds two important facts in order to be prosecuted for this particular degree of the criminal offense. First, the course of conduct must actually not only be directed to "a specific person", but also must be "knowingly" done as well. Secondly, the stalking in the third degree becomes a more serious crime if the individual being stalked by another individual has previously been the victim of a crime(s) by this person in the past. This crime in the third degree is actually a Class E felony under New York State Penal Law Section 120.45. The crimes of stalking in both the first and second degree are similar in nature and try to establish a pattern of events through a course of conduct that reveals a level of stalking not typically found in lesser crimes. The crime of stalking in the second degree under New York State Penal Law Section 120.55 is a Class A misdemeanor. The inability to control physical contact, verbal and/or written communication or other forms of physical touch to another person aggravates the crime to first degree stalking under New York State Penal Law Section 120.60. This crime is a Class D felony in New York State.
Stalking Sentences and Possible Consequences
Criminally, stalking three times in ten years is a felony and stalking three times in twenty years is a felony. If convicted of a felony, the defendant would have been found guilty of a class D or E felony. Within New York State, a class D felony conviction is up to seven years in prison and a civil fine up to $5,000 or both. Class E felonies are up to four years in prison and a civil fine up to $5,000 or both. If someone is convicted of a felony of any class, they will have a permanent criminal record. If both a fine is imposed and a prison sentence is handed down, the judge will decide whether said punishment will be served concurrently (at the same time) or consecutively (one after the other). With all the above stipulations, at the same time, the state also wants to maintain a fine balance of protecting victims of stalking from more abuse while giving the person being stalked some rights. Specifically, stalking involves knowing all the facts, what is considered as stalking and how it is both defined and penalized.
Restraining Orders and Stalking
The New York State Penal Law defines a "protective order" as a "functionally similar [intermediate] alternative" to incarceration or other "non-monetary conditions of release." N.Y. PENAL § 530.13 (Consol. 2016). A protective order may be issued by a criminal or civil court in certain circumstances to protect the victim from the accused against any of the crimes listed in Article 120, 121, 125, 135 and 140, including stalking in the first degree; stalking in the second degree; stalking in the third degree; strangulation in the first degree; strangulation in the second degree; aggravated criminal obstruction of breathing or blood circulation; menacing in the first degree; menacing in the second degree; menacing in the third degree; sexual abuse in the first degree; sexual abuse in the second degree; sexual abuse in the third degree; course of sexual conduct against a child; coercion in the first degree; coercion in the second degree; coercion in the third degree; or any misdemeanor defined in New York State’s Vehicle and Traffic Law or any crime that involves the unlawful taking, appropriation, misuse, transfer, concealment, destruction, or deprivation of access to child custody, visitation rights or child support. These orders are equally available to both female and male victims.
A protective order is a judicial requirement that compels a person to do or refrain from doing something. It is most commonly used in cases involving domestic violence to prohibit offenders from engaging in certain specified conducts, such as: estate violence, harassment or intimidation; physical abuse; stalking by phone, text message and/or email; disobeying court orders; third-degree sexual abuse; violating a child support order; or establishing unauthorized physical or electronic contact.
This order may be issued even in instances where a victim who is a party to a judicial proceeding has not applied for one. A court may "issue a temporary order of protection upon the first appearance of the defendant" whenever necessary "to ensure the protection of a supervised person or a child of a supervised person or a person sharing an apartment with a supervised or a child of the supervised person." This order may remain in effect until permanent orders of protection are issued. Victims may obtain permanent protective orders that provide enhanced protection , such as: monitoring by probation and probationary reliefs; supervised contact; and loss of the right to carry a firearm. These orders may also be made permanent if it is proven that a subsequent proceeding is "not feasible or not likely to be effective."
Criminal protective orders may be enforced in either Family or Criminal Court and may be violated if certain mandated conditions are breached, such as: refusing to communicate with, or be in the vicinity of a victim; harassing, stalking, or intimidating a victim; or communicating threats of violence or harm toward the victim. In such cases, the victim may seek a warrant to enforce such order. In circumstances where it is not enforced by a criminal court, the victim may do so in Family Court. In cases where a criminal protective order has been issued, the accused faces criminal charges for violation of such order, which may entail imprisonment for a term not to exceed 7 years (for Class B Felony); a fine not to exceed $5,000.00 (for Class A misdemeanor); or both. Prior offenders face an increased term of imprisonment not to exceed 7 years (for Class B Felony); a fine not to exceed $5,000.00 or both (for Class A misdemeanor); and a fine not to exceed $1,000.00 or both (for violation of a class B misdemeanor). First-time offenders face a maximum term of imprisonment not to exceed 15 years (for Class C Felony); a fine not to exceed $5,000.00 or both (for Class A misdemeanor); and a fine not to exceed $1,000.00 or both (for violation of a class B misdemeanor). Prior offenders face an increased term of imprisonment not to exceed 20 years (for Class C Felony); a fine not to exceed $5,000.00 or both (for Class A misdemeanor); and a fine not to exceed $1,000.00 or both (for violation of a class B misdemeanor). An order may have a maximum term of 8 years or more generally 2 years permanent protection (depending on the age of children involved).
Recent Judicial Decisions and Legal Developments
While New York State’s stalking laws have largely remained consistent, ongoing criminal proceedings and legal rulings continue to refine and shape the interpretation and enforcement of those laws. Some recent cases are noteworthy:
People v. James Kessick (2013 NY Slip Op 5556(App Div 1 Dept) (1st Dept). In this case, a former husband pursued the wife with harassing communications and then filed for visitation against her wishes. While that complaint ultimately was denied on its own merits, the Court recognized that someone who "repeatedly harasses a prior spouse" may constitute "a course of conduct" under the statute.
People v. Carrillo , 2006 NY Slip Op. 3007 (App. Term 1st Dept 2006). The Court of Appeals reversed a conviction in this case where a person convicted of stalking had not "knowingly" caused that person to experience fear of physical harm.
People v. Heredia , 173 Misc. 2d 233 (Crim Ct, City of New York, NY County 1998). In this case, the Court held that it is permissible to enjoin an individual from being on school property even if those activities are simply "nuisance-related" as opposed to physical harm or harassment that would otherwise be covered by the statute.
People v. Golb , 23 NY3d 191 (2014). Not a stalking case per se, but a classic lesson in how an otherwise criminal statute can be used to take "intelligent" speech and make it criminal.
Resources For Stalking Victims
Stalking victims in New York State have access to a number of federal and state-wide resources designed to help them. The most important initial resource is the law enforcement authority in their area. For example, In Kings County, NYPD has the Domestic Violence Unit, located at 346 Powers Avenue, and they can not only take reports of stalking, but also provide assistance in the legal process that a stalking victim can take to put an end to the harassment and threats.
In addition to help from local police, stalking victims have access to the Victim Assistance Program, a confidential state-wide service providing support and services such as counseling, victim advocacy, and/or an escort to court through the legal process. They maintain a list of advocacy and domestic violence programs in every county in New York State.
Law enforcement authorities are available by county, while the Victims for Victims program is available by county or state. These services are constitutionally required, and authorities must contact the victim within 24 hours of their report of a stalking incident. Victim services will ask about your victim status, as well as other information about the incident, and connect you with other state and local services as might be appropriate . Victim services can also assist you in applying for a protective order and for benefits under the New York Office of Victim Services Compensation Fund.
For most people, seeking a civil protective order (CPO) is the first step in ending a stalking situation. The CPO is intended to eliminate unwanted contact, and is appropriate if the stalker has committed a family offense. This is a special category of crime, which includes stalking when the victim and offender are married to each other, formerly married to each other, have a child together or have had an intimate relationship.
Civil protection orders derived from a Petition for Order of Protection or Petition for an Ex Parte Hearing may address the following situations:
When a criminal stalking charge has been successfully prosecuted, a judge or jury will usually preclude further contact with the victim. But in both circumstances, the stalking may continue, and there may be situations outside the purview of the criminal justice system, such as employer-related stalking. And, of course, criminal charges do not always result in a successful prosecution, putting the victim back into contact with the abuser.
Criminal and CPOs should not be confused with those issued in child custody matters or Family Court, which do not have specific statutory guidelines to refer to and are usually granted on a case-by-case basis.