What is Unlawful Surveillance in New York?
New York’s Unlawful Surveillance charges were added to the law in 2003. The 4 Unlawful Surveillance laws are named Stephanie’s Law in response to the surreptitious videotaping of a tenant in Suffolk County by her landlord.
In 2001, a woman named Stephanie discovered that there was a hidden camera inside a smoke detector in the bedroom apartment that she rented. A wire led from the hidden camera into the landlord’s apartment where video of Stephanie was recorded. The landlord was charged and convicted of Trespass because there were no Unlawful Surveillance charges in New York at the time. In response, New York created Stephanie’s Law, making Video Voyeurism a crime.
There are 4 Unlawful Surveillance charges in New York. There are 2 degrees for Unlawful Surveillance: Unlawful Surveillance in the Second Degree and Unlawful Surveillance in the First Degree. In addition, there are 2 degrees for Dissemination related to Unlawful Surveillance, Dissemination of an Unlawful Surveillance Image in the Second Degree and Dissemination of an Unlawful Surveillance Image in the First Degree.
Unlawful Surveillance Lawyer in New York City
If you are charged with Unlawful Surveillance in NYC, retaining an experienced criminal defense attorney early on is crucial in achieving a favorable outcome. Contact us today to discuss your case via live chat, contact form or phone at (212) 634-9222.
Most of the charges are classified as a felony in New York and only Dissemination of an Unlawful Surveillance Image in the Second Degree is a misdemeanor. Some Unlawful Surveillance charges may overlap with allegations of New York Revenge Porn charges.
A conviction of Unlawful Surveillance may or may not require registration as a Sex Offender under SORA or the Sex Offenders Registration Act. A conviction of Unlawful Surveillance Image in the Second Degree charges not mean that a person will automatically be required to register as a Sex Offender. However, registration under SORA is mandatory for a conviction for Unlawful Surveillance Image in the First Degree.
New York Unlawful Surveillance charges and typically involve an allegation of using or installing a recording device to record the Sexual or Other Intimate Parts of a person without his or her consent. Sexual or Other Intimate Parts is defined in Penal Law Section 250.40(3) as “the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment.”
Under the definition, a person does not have to be completely naked when he or she is allegedly recorded without consent for an Unlawful Surveillance charge.
New York Unlawful Surveillance Charges
- Unlawful Surveillance in the Second Degree
- Unlawful Surveillance in the First Degree
- Dissemination of an Unlawful Surveillance Image in the Second Degree
- Dissemination of an Unlawful Surveillance Image in the First Degree
Unlawful Surveillance in the Second Degree
In New York, Unlawful Surveillance in the Second Degree, Penal Law Section 250.45, is a class E felony. The crime is punished by a maximum of 1 1/3 to 4 years in prison for a first felony conviction. Registration as a Sex Offender under the Sex Offenders Registration Act is not automatic for a conviction of Unlawful Surveillance in the Second Degree charges, but it could be required depending on the person’s case.
Unlawful Surveillance in the Second Degree is charged in 5 circumstances and involves allegations of a person who intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person without the person’s knowledge or consent. The 5 different circumstances, which differ based on the circumstances of alleged the recording or the place of the alleged recording, include:
- For his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the Sexual or Other Intimate Parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent;
- For his or her own, or another person’s sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the Sexual or Other Intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or
- For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent;
- Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the Sexual or Other Intimate Parts of such person; or
- For his or her own, or another individual’s amusement, entertainment, profit, sexual arousal or gratification, or for the purpose of degrading or abusing a person, the actor intentionally uses or installs or permits the utilization or installation of an imaging device to surreptitiously view, broadcast, or record such person in an identifiable manner:
- Engaging in sexual conduct, in the same image with the Sexual or Intimate Part of any other person at a place and time when such person has a reasonable expectation of privacy without such person’s knowledge or consent
The first 2 provisions of Unlawful Surveillance in the Second Degree do not require the alleged conduct to take place in a particular location, but rather only at a place and time when a person has a reasonable expectation of privacy. Whether or not a person has a reasonable expectation of privacy in a particular place may be different in every case, though Courts have drawn some lines.
For example, Courts have held that a person who disrobes inside his or her bathroom has a reasonable expectation of privacy. However, a person who takes their clothes off in front of a window that can be easily viewed from the street cannot claim to have an expectation of privacy.
The third provision of Unlawful Surveillance in the Second Degree lists 9 several specific places where a person could have a reasonable expectation of privacy. The law bans any surreptitious viewing of people in any of the locations. Unlike the first two provisions, which require a specific purpose such as for a person’s amusement or sexual arousal, the third Unlawful
Surveillance provision only requires that there is no legitimate purpose for the imaging device being placed in the location. The law has a rebuttable presumption regarding installing an imaging device to surreptitiously view, broadcast or record. Of course, a person can produce evidence to show that there was a legitimate purpose in installing the imaging device in a particular location.
The fourth type of Unlawful Surveillance in the Second Degree charge does not require an alleged purpose or an expectation of privacy. The provision requires a surreptitious viewing or recording of a person’s Sexual or Other Intimate Parts under their clothing.
The fifth and final type of Unlawful Surveillance in the Second Degree charge is similar to the first two provisions with two additions. First, the complaining witness must be identifiable in the image. Second, the image must show Sexual Conduct with another person where the Sexual or Intimate Parts of the other person are visible. This type of Unlawful Surveillance in the Second Degree charge is contrasted against the first two types of charges, which require the Sexual or Other Intimate Parts of the complaining witness to be visible.
New York Upskirting Charges
In recent years police, especially the New York City Police Department, have increasingly made arrests for so-called Upskirting applying Unlawful charges. Unlawful Surveillance in the Second Degree, Penal Law Section 250.45(4), is the common charge when Upskirting is alleged. Upskirting charges typically involve an allegation of pointing a camera or cellphone under a person’s clothing, hence the term Upskirting. The setting for Upskirting charges is usually public transportation or New York City’s subway system.
A criminal complaint that with Upskirting charges commonly states: “I observed the defendant inside the subway station with his cellphone in his hand and his camera application open. I further observed the defendant behind a female as she walked up the staircase. I further observed that the defendant has his cellphone directly underneath the female’s skirt with the camera lens pointing up.” Upskirting charges raise important factual and legal questions. The factual question may work in favor of a person facing Upskirting charges, but the legal issues typically work against a person.
First, whether or not a prosecutor can prove beyond a reasonable doubt that a camera, cellphone or otherwise, was pointed in a particular direction depends on the specific facts of each case. How would police know if a particular application was open on a person’s cellphone? How would police know the direction a camera lens is pointed in? The answers to those questions determine the relative strength of a defense to Upskirting charges.
Second, the legal questions surrounding Upskirting charges work against a person charged with Unlawful Surveillance in the Second Degree. Unlawful Surveillance charges are concerned with the surreptitious recording of a person’s sexual or other intimate parts. However, “surreptitious” is not defined in New York Law. There is a good argument to be made that alleged conduct that takes place out in the open in full public view, as opposed to one’s home, is not surreptitious. In People v. Schreier, an appeals court held that the common meaning of surreptitious is by stealth or clandestinely “The statute,” the Court said, “then, requires that the perpetrator make an effort to conceal his conduct or to escape detection.” Thus, it is not a defense to an Upskirting charge that the alleged recording took place in a public place.
In addition, New York Courts have held that a person can be convicted of Upskirting charges, whether or not a recording results. Usually, if a person is accused of taking steps to commit a crime he or she will be charged with an attempt to commit a crime. However, Courts have held that the wording of Upskirting charges includes an attempt to commit a crime. In People v. Lema, an appeals court held that Unlawful Surveillance in the Second Degree does not require that the is actual viewing, broadcasting or recording. The Court interpreted that the crime, which includes “to surreptitiously view, broadcast or record,” used the term “to” connote a purpose “but does not necessarily require consummation.” Therefore, Upskirting charges may apply even if a person is accused of Unlawful Surveillance, but no recording or image is captured.
New York Sentencing for Unlawful Surveillance in the Second Degree
New York Unlawful Surveillance in the Second Degree is a class E felony. A conviction of the charge has a prison sentence of between 1 to 3 years and 1 1/3 to 4 years in prison for a first felony conviction. Jail is not mandatory for a conviction, there are several lesser and non-jail sentences including 1 year in jail and a split sentence of up to 6 months in jail and 3 to 5 years probation or a 3-year conditional discharge. If a Judge makes favorable findings about the nature of the allegations and the history and character of the person who is convicted, then a straight a 3-year conditional discharge or up to 5 years probation is a possibility. A condition of any plea bargain or favorable sentence usually requires a person to attend therapy or treatment for sexual offenses. In addition, an Order of Protection for the person who is depicted in the image or images is commonly required as part of any disposition or sentence.
Registration as a Sex Offender under SORA is not automatic. An experienced Unlawful Surveillance defense attorney can often convince a Judge that Sex Offender registration would be unduly harsh in light of the allegations and the background of the person charged.
Unlawful Surveillance in the First Degree
Unlawful Surveillance in the First Degree, Penal Law Section 250.50, is a class D felony. The charge is punished by a maximum prison term of 2 1/3 to 7 years. Registration as a Sex Offender under SORA is required for a conviction.
Unlawful Surveillance in the First Degree is charged in only 1 circumstance, when a person has a previous conviction of Unlawful Surveillance in the Second Degree within the previous 10 years. A previous conviction for Surveillance in the First Degree within the past 10 years is also covered by the First Degree charge.
New York Sentencing for Unlawful Surveillance in the First Degree
As a class D felony, the prison sentence for Unlawful Surveillance in the First Degree is between 1 to 3 years, but not more than 2 1/3 to 7 years. However, like the Second Degree crime, a person can also be sentenced to a lesser term in prison or no prison at all for a conviction. To lesser terms include a 1-year definite sentence and a split sentence of up to 6 years in jail and either 3 to 5 years of probation or a 3-year conditional discharge. If a Judge makes positive findings about the person charged and the nature of the Unlawful Surveillance a person can also be sentenced to a 3-year conditional discharge or 3 to 5 years on probation.
Hiring a New York City Unlawful Surveillance Lawyer
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Speak With a NYC Unlawful Surveillance Attorney Today
If you or a loved one is charged with Unlawful Surveillance in New York City, we’re here to help. An experienced Unlawful Surveillance lawyer can be the difference between the dismissal of charges or a favorable plea bargain on one hand, and a permanent criminal conviction on the other hand.
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