New York, at the turn of the twenty-first century, moved to codify the offense of stalking, in response to concerns that many women were being put in fear of their safety, and sometimes physically harmed, by individuals who stalked them.  Having been inspired by such concerns, the stalking statutes under the New York Penal Law apply to and protect all citizens alike.

What is “Stalking?”

Stalking, as a legal concept in New York, generally takes place when a person engages in the course of conduct toward a particular other person or persons, where that other person or persons have clearly requested such course of conduct stop.

The ‘course of conduct’ includes, but is not necessarily limited to:

• appearing in the other person or persons’ presence; and
• telephoning or otherwise initiating contact with that person or persons.

Difficulties you may encounter with the legal prohibitions against stalking.

One difficulty that you may run into with the legal prohibitions against ‘stalking’ in New York is that some of the conduct thereby prohibited is also conduct that may occur in the normal course of human relations.

Another difficulty arises with the imprecise standard for what constitutes a clear request to cease a particular course of conduct, and whether you, for example, should be expected to know, in a given circumstance, whether a contact you initiate could be considered stalking under New York law.

Generally speaking, the New York Penal Law recognizes four degrees of stalking violations. Fourth-degree stalking is the least serious, and each successive degree, from third to first, represents an intensification, of one kind or another, of the basic violation codified in the fourth-degree offense. (New York Penal Law § 120.45).

What to expect in this article?

This article will discuss the elements of the stalking provisions under New York law and some of the legal issues that have arisen in the prosecution of individuals under one of those statutes. Moreover, this article will highlight some of the penalties that the law can visit upon you if you are convicted of stalking in New York.

Additionally, this article will cite a few related offenses that prosecutors may charge you with, in addition to stalking.  As always, this article will conclude with some general thoughts about what you should do if you find yourself charged under one of New York’s stalking provisions under the New York Penal Code.

No matter the degree of stalking you may be charged with, these are serious charges that require serious legal analysis and rigorous defenses.

Elements of Fourth through First-Degree Stalking in New York

Stalking in the fourth-degree (New York Penal Law § 120.45)

Stalking in the fourth-degree in New York occurs when an individual “intentionally, and for no legitimate purpose” engages in conduct aimed at a particular person that is likely to place that person, or a family member or other close acquaintance of that person, in reasonable fear of material harm, whether that harm be reputational, emotional or physical.

You will notice that phrases such as “no legitimate purpose,” “likely to place” and “clearly informed” provide much room for interpretation. They are therefore often the key phrases upon which guilt will be, or will not be, established at a trial.

For example: 

• If you were to contact someone a number of times via telephone because they did not perform a job they had contracted to perform for you, either at all or to the standard you expected, would such contact be pursuant to “no legitimate purpose”? It’s less than clear what the answer is, and indeed any such answer may depend on the particular prosecutor handling a particular case.
• Similarly, if you ask someone on a date and that person says no, have you been “clearly informed” that any subsequent request would be unwelcome or worrisome and so, perhaps, constitute stalking? What about a third and fourth request, made via a 2 am a phone call? Again, the answer is less than clear.

Indeed, as will be discussed in the next section below, at least one legal challenge has been made to New York Penal Law § 120.45 based on its lack of clarity.

Stalking in the third-degree (New York Penal Law § 120.50)

Stalking in the third degree in New York occurs when an individual did the following:

• Commits stalking in the fourth-degree, against three or more persons, in three or more separate transactions for which the individual has not previously been convicted, or
• Commits stalking in the fourth-degree against a single person or family member of that person who the individual has victimized before, pursuant to a cognizable offense, within the previous ten years, or 
• With an “intent to harass, annoy or alarm,” an individual engages in the course of conduct that puts an intended victim in reasonable apprehension of serious physical harm, including sexual assault, kidnapping, and death to the intended victim or family member, or 
• An individual commits the crime of stalking in the fourth degree and has previously been convicted in the preceding ten years of stalking in the fourth degree.

Stalking in the second-degree (New York Penal Law § 120.55)

Stalking in the second degree in New York occurs when an individual, 1) commits stalking in the third-degree and either:

• In furtherance of such crime brandishes, displays or threatens the use of a deadly weapon; or Has been convicted of a previous such offense within the last five years.

Moreover, where an individual commits fourth-degree stalking and has already previously been convicted of a separate, third-degree stalking charge, the present fourth-degree offense will be graduated to a second-degree offense.

• Finally, where an individual is twenty-one years of age or older, and intentionally engages in the course of conduct against a person under the age of fourteen, which places the victim in reasonable fear of physical injury, that offense will be charged as stalking in the second-degree.

Stalking in the first-degree (New York Penal Law § 120.60)

Stalking in the first degree in New York occurs when an individual, 1) commits stalking in the either the second or third-degree and in so doing either:

• Intentionally or recklessly causes physical injury to the victim; or
• Commits a cognizable class A or E misdemeanor.

Related Offenses

Generally speaking, and outside of the stalking statutes’ relation to one another, the New York Penal Laws’ harassment provisions (New York Penal Law §§ 240.21- 240.32) are closely related to and are sometimes coincidentally charged alongside, stalking offenses.

Harassment occurs in either the first or second-degree, and each degree has an ‘aggravated’ and separate provision where the harassment is motivated by animus toward one or more protected classes in the law. In general, harassment offenses require less of a systematic and particularized intent as compared to the stalking statutes.

Case Law on Stalking

As stated earlier, and particularly with respect to fourth-degree stalking, the statutory language regarding what constitutes stalking is less than perfectly clear. This has led defendants charged with fourth-degree stalking to question, among other things, the constitutionality of the statute.

• For example:

In the People v. Paul Stuart, 2003 NY Int. 101 (2003), the defendant argued that the statutory language “no legitimate purpose” did not provide clear guidance as to what would constitute a legitimate purpose.

And because it was not clear from the statutory language what conduct is prohibited, it neither allowed people to conform their behavior to the law nor constrained officials from using the statute to pursue arbitrary prosecutions. The court in considering the defendant’s argument stated that “it is axiomatic that a prescriptive law must provide people with reasonable notice of the conduct it prohibits.”

To determine whether the New York Penal Law § 120.45 was violated, the court needed to consider the following:

1. Whether § 120.45 was “sufficiently specific to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statue, and
2. Whether “the enactment provides clear standards for enforcement.” The court answered both questions in the affirmative and ruled against the defendant. In doing so, the court primarily considered the actions of the defendant, which included multiple and clearly unwanted interactions with the victim, and which clearly could be said to place a reasonable person in apprehension of harm.

Nevertheless, other fact patterns of lesser severity could perhaps raise a more serious challenge to the constitutionality of the wording of § 120.45.

• For example:

As stated in an earlier section of this article, where you may have had only one or two interactions with the person filing a complaint, it may be the case that you were not yet clearly put on notice that the course of conduct complained of was unwelcome.

Similarly, where you do have a legitimate purpose of being in contact with another person, a stalking charge may be easier to defend against. In both these cases, the conduct and circumstances are such that the vague wording of the statutes could perhaps be shown to be unjust as applied to your course of conduct.

Penalties

Possible legal penalties under the stalking statutes correlate with the class of felony or misdemeanor each is associated with.

• For example: 

The penalty for a Class-D violent felony, which is what stalking in the first degree is considered, is 2-7 years in prison. Of course, other, associated charges can and usually will be present in any case were stalking in the first-degree is charged. At the other end of the spectrum, fourth-degree stalking is a Class-B misdemeanor and carries a penalty of up to 90 days in jail.

Here too it is important to note both that additional charges can and usually will accompany a charge of fourth-degree stalking, and that more than once stalking charge can be made where more than one incident took place.

That was what happened in the Stuart case, mentioned above, where the defendant was charged with two counts of fourth-degree stalking, and one count first-degree harassment. Moreover, remember that if you have previously been convicted of either stalking or another cognizable crime, the degree of your stalking charge may be elevated to a higher degree.

Defenses

Possible defenses to a stalking charge of whatever degree can be made where there is a question as to whether the course of conduct served “no legitimate purpose,” as well as where there is a legitimate question as to the severity of the conduct in question and to the intention of the person being accused of the crime.

• For example: 

Prosecutors must show not only that the accused engaged in the course of conduct, but that the accused intended that course of conduct to be harassing or worrisome in nature.

While it’s true that the statutes use a reasonability standard with respect to how a course of conduct may be perceived, it is still the case that the statute requires, as most all criminal statutes do, a bad intention on the part of the accused.

Finally, the phrase “course of conduct” itself presupposes more than one instance of behavior, and arguably more than two or three isolated instances of behavior. Depending on the circumstances involved and the particular statute under which you may be charged, it may be useful to litigate the threshold issue of whether a “course of conduct” was engaged in at all.

Getting the Help You Need

If you have been charged with stalking in any of the cognizable degrees under the New York Penal Law, this is no time to be without an experienced and expert New York attorney to handle your case. As discussed, the penalties for a conviction under any of the applicable charges are significant, with serious consequences for you and your loved ones.

The New York criminal justice system is no place to be without a steady and experienced guide, to answer your questions and to fight for your rights under the law. You owe it to yourself, and your loved ones, to retain experienced and expert counsel to protect your interests.