New York Stalking

N.Y. Pen. Law §§ 120.45, 120.50, 120.55 & 120.60

Stalking is a crime that involves repeatedly following someone or communicating with someone in a manner that causes that person to feel threatened. Stalking can be accomplished by following someone in a traditional manner by foot, by car, or, by somehow regularly being present at places where the victim is also present. It can also be accomplished by tracking another person using technology such as GPS. Constantly calling, emailing or texting another person after that person has asked you to stop is another form of stalking. In addition, putting someone's job, business or career at risk by showing up at that person's place of employment or communicating with that person at work is also a form of stalking. Law enforcement has made arresting and prosecuting those accused of stalking a priority as any type of stalking behavior in not only annoying, but can escalate to violent criminal behavior. However, law enforcement does not always get it right and sometimes innocuous behavior is mistaken for criminal stalking. If you are convicted of stalking the consequences can be serious. You could end up in prison and you could be ordered to pay a significant fine. If you have been charged with stalking it is important to immediately contact an experienced New York Stalking Lawyer who understands the criminal statute related to stalking and who will aggressively defend you against the charges.

Types of Stalking Offenses

Under New York Penal Law there are four criminal offenses related to stalking: stalking in the fourth degree, stalking in the third degree, stalking in the second degree, and stalking in the first degree. Stalking in the fourth and third degrees are misdemeanors while stalking in the second and first degrees are felonies.

Stalking in the Fourth Degree. You will face this charge if you intentionally engage in a course of conduct that is directed toward a specific person that:

  • Is likely to cause reasonable fear of physical harm to that person, that person's family, or to that person's property
  • Causes harm to that person's mental or emotional health, where that conduct is following, telephoning, or initiating contact with that person or an acquaintance of that person after he or she told you to stop. Following includes tracking another person using GPS.
  • Is likely to cause that person to fear that his or her job, business or career is at risk because your stalking conduct includes showing up at that person's job or telephoning or in some other way communicating with that person at his or her job.

Stalking in the fourth degree is a Class B misdemeanor. N.Y. Pen. Law §§ 120.45-120.60

Stalking in the Third Degree. The offense of stalking in the third degree is the same as stalking in the fourth degree except that:

  • You stalk 3 or more different people on at least 3 separate occasions; or
  • Within the prior 10 years you were convicted of one of the following predicate crimes: sexual misconduct, rape in the third degree, rape in the second degree, criminal sexual act in the third degree, criminal sexual act in the second degree, sexual abuse in the third degree, sexual abuse in the second degree, aggravated sexual abuse in the first degree, incest in the third degree, incest in the second degree or incest in the first degree. The stalking victim and the predicate crime victim must be the same or the predicate crime victim must be a member of the stalking victim's family.
  • Intending to annoy, harass or alarm the victim, you engage in a course of conduct that is likely to cause that person to fear that you will physically harm, kidnap, commit a sex offense, or commit the crime of unlawful imprisonment against that person or that or that person's immediate family.
  • Within the last 10 years you have been convicted of stalking in the fourth degree.

Stalking in the third degree is a Class A misdemeanor. N.Y. Pen. Law § 120.50

Stalking in the Second Degree. Stalking in the second degree is very similar to stalking in the third degree that it also involves engaging in conduct that causes the victim to fear that you will physically harm, kidnap, commit a sex crime, or commit a sex offense, except that in the case of stalking in the second degree you also display a weapon. Or you do so after within the last 5 years being convicted of a predicate sex offense. Or you do so against at least 10 different people on 10 separate occasions. Stalking in the second degree is a Class E felony. N.Y. Pen. Law § 120.55

Stalking in the First Degree. You will face a stalking in the first degree charge if while stalking someone you also cause the person physical injury. Or while stalking someone you also commit sexual misconduct, forcible touching, sexual abuse in the second degree, rape in the third degree, criminal sexual act in the third degree, female genital mutilation, rape in the second degree, or criminal sexual act in the second degree. Stalking in the first degree is a Class D felony. N.Y. Pen. Law § 120.60

Consequences of a Stalking Conviction

If you are convicted of stalking the sentence that you receive will be determined by the particular stalking offense of which you are convicted. Your sentence could include prison, probation, a fine, restitution, probation, or a combination of any of these punishments.

Stalking in the fourth degree. As a Class B misdemeanor the maximum sentence is 3 months in the county jail and a fine of up to $500.

Stalking in the third degree. As a Class A misdemeanor the maximum sentence is 1 year in the county jail and a fine of up to $1,000.

Stalking in the second degree. As a Class E felony the maximum sentence is 4 years in the state prison and a fine of up to $5,000. If you have no prior felony convictions within the prior 10 years, then the judge has the option of not sending you to prison, but to sentence you to just probation. If you have a prior felony conviction within the prior 10 years, the minimum prison sentence that you will receive is 1.5 years. If you have 2 prior felony convictions within the prior 10 years, you will be classified as a persistent felony offender and you will receive a minimum sentence of 12-25 years and a maximum sentence of life in prison.

Stalking in the first degree. As a Class D felony the maximum sentence is 7 years in the state prison and a fine of up to $5,000. Because stalking in the first degree is a violent felony offense, even if you have no prior felony convictions within the prior 10 years the judge will be required to sentence you to at least 2 years in prison. If you have a prior non-violent felony conviction the minimum prison sentence that you will receive is 3 years, while if you have a prior violent felony conviction the minimum prison sentence you will receive is 5 years. If you have 2 prior felony convictions within the prior 10 years, you will be classified as a persistent felony offender and you will receive a minimum sentence of 12-25 years and a maximum sentence of life in prison.

Restitution

As part of your sentence the judge may order you to pay restitution. Restitution is paid to the victim to cover out-of-pocket expenses that result from your crime. For example, if you injure victim the court may order you to pay the victim's medical expenses. If you damage the victim's property, the court may order you to pay the cost of repairing or replacing the property. Generally, the maximum amount of restitution is $15,000 for a felony and $10,000 for a misdemeanor. However, the law allows a judge to order you to pay a greater amount of restitution if, for example, the victim's medical expenses exceed the general statutory limit.

Fees

In New York if you are convicted of a criminal offense you will be required to pay certain statutory fees. One fee is a "mandatory surcharge." It is $300 for a felony and $175 for a misdemeanor. You may also be required to pay a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are placed on probation, you will have to pay probation supervision fees of $30 per month.

Probation

All or part of your sentence for a stalking conviction may be probation. In fact, if you are convicted of misdemeanor stalking, there is a chance that you will not be sent to jail and that your entire sentence will be probation. For a Class B misdemeanor the term of probation would be 1 year, for a Class B misdemeanor, 3 years and for a felony, 5 years. While probation is preferable to being incarcerated you should know that serving probation is not without challenges. For the entire time that you are on probation you will be required to follow strict rules that are designed to help prevent you from committing another crime. If you break any of these rules there will be severe consequences. The court will design a set of rules specifically for you. Typical rules include:

  • You must not commit a crime. If you commit even a "minor" infraction including a misdemeanor, you could be in violation of the terms of your probation.
  • You must not associate with other people who you know have criminal records
  • You must not patronize unlawful or disreputable places. This means that you are not permitted to go to places known for illegal activity.
  • You must not possess controlled substances or drug paraphernalia
  • You must consent to warrantless searches without probable cause
  • You must submit to home visits by your Probation Officer
  • You must regularly report to your Probation Officer
  • You cannot leave the State of New York without permission.
  • You must let your Probation Office know if you move. You cannot move out of state without permission. Your Probation Officer will have to approve such a move and will have to make arrangements with your new jurisdiction to take over your probation supervision.
  • You must not own, possess or purchase a gun
  • You must refrain from drinking alcohol
  • You must complete any ordered substance abuse treatment or medical treatment
  • You must stick to a curfew
  • You must have job or be enrolled in school. If you change jobs or schools, you must let your Probation Officer know.
Community Service

You may also be required to perform community service as part of your sentence. The number of hours that you will be required to perform depends on the crime. For example, for a Class A misdemeanor the maximum amount of community service hours that you would be required to perform is 200, while for a Class D felony the maximum is 500 hours.

Long-Term Consequences

If you are convicted of stalking, unless you are a persistent felony offender the amount of time that you will spend in jail ranges from 0 to 7 years. However, whether the amount of jail or prison time is a few days, a few months, or a few years, the consequences of being convicted of stalking go well beyond your prison sentence, your probation sentence, or any monetary payment you are ordered to make. You will have a criminal record that will impact the rest of your life. For example, with a simple background check a potential employer or a college admissions officer will quickly learn that you were convicted of reckless endangerment. As a result, you may lose many opportunities.

While stalking is not one of the more serious crimes defined in New York Penal Law, the consequences of a conviction are serious. If you are convicted there is a chance that you will end up incarcerated. You may be ordered to pay significant fines and restitution. You will have a criminal record that may limit professional opportunities. Because of the consequences of being convicted of a stalking offense it is important to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with stalking as well as other crimes such as assault, harassment, menacing, reckless endangerment, strangulation, and child endangerment. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of stalking in the following locations:

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