In New York, the crime of stalking is most often charged in domestic violence-related arrests, usually between a former boyfriend-girlfriend or husband-wife (or vice-versa). There are four degrees of stalking, and generally speaking, unless a person has been previously convicted of a stalking offense or threatens physical harm to a person, the crime that is usually charged is called Stalking in the Fourth Degree, Penal Law Section 120.45, which is a class B misdemeanor.

In order for a criminal complaint that alleges Stalking in the Fourth Degree to be sufficient, the facts must state the following elements: (1) intent; (2) for no legitimate purpose; (3) a course of conduct and (4) knowing or reasonably knowing that the conduct would cause one of the following:

• 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
• 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
• reasonable 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.

In People v. Romero, 2015 NY Slip Op 51853(U) (NYC Crim. Ct. Dec. 21. 2015), the defendant was arrested and charged with Stalking in Fourth Degree, Penal Law Section 120.45(1) for causing reasonable fear “of material harm to the physical health, safety or property of such person,” the first bullet above. However, unlike common stalking cases, the relationship between the defendant and complainant was son-mother. In the facts that led to the arrest, a police officer saw the defendant at his mother’s apartment and the mother told police that the “defendant frequently comes to her residence and this, based on defendant’s past behavior, has caused her to fear for her safety.” The son was arrested and the resulting criminal complaint signed by the police officer read:

I observed the defendant inside the courtyard of the [complainant’s residence] in the presence of [the complainant.]

I am further informed by [the complainant] that the defendant continually shows up at her residence … and that the defendant’s repeated presence places [the complainant] in fear based on her knowledge of the defendant’s previous behavior.

I am informed by [the complainant] that the defendant appeared at her building on September 3, 2015.

The defense argued that the complaint failed to state a prima facie case as to three of the four elements of the crime: knowledge, no legitimate purpose and course of conduct.

First, Stalking in the Fourth Degree requires that a defendant have knowledge that a person’s behavior will cause material harm. Courts have held that an implied threat of danger is enough to plead this element, but obnoxious behavior is not. The Court held that “[a] person who visits his own mother’s home, even if he does so frequently – or ‘continually’ – as alleged here, is not engaged in stalking.” In addition, the mere reference to “previous behavior” without any specifics, rendered the element not pleaded.

Next, the Court held that the no legitimate purpose and knowledge elements overlap. The Court interpreted the element to mean that the defendant had no other purpose than to cause the harm that is defined in the statue. Therefore because the knowledge element was not met, neither was the no legitimate purse element.

Finally, the Court held that the complaint sufficiently plead the course of conduct with the terms “continually” and “repeatedly.” The Court noted that the element simply means actions separated by time that have a common purpose. The defendant’s visits to his mother’s residence on several occasions, the Court reasoned, suggested the same purpose.

In sum, the Court held that two of the four required elements were not pleaded in the complaint and dismissed the complaint. The prosecution is required to plead every element of an offense whether stalking or any other crime. If the prosecution fails to do so, then a defense attorney could file a motion to dismiss the case, as in People v. Romero.