Queens Stalking in the Second Degree

N.Y. Pen. Law §120.55

Over the last few decades since stalking was first including as part of the New York criminal code, apprehending and prosecuting stalkers has been a priority of law enforcement. Law enforcement views any act of stalking as a serious criminal infraction because even acts that some might consider as minor such calling someone several times a day, often lead to serious criminal acts such as assault, kidnapping, and sexual assault. Stalking is a crime that involves repeatedly harassing someone in ways that alarm and frighten them. Commonly, it involves following, calling, emailing, or texting someone repeatedly even though you have asked the person to stop. In some cases the stalker uses GPS technology to track the victim or shows up at the victim's jobsite. As a result the victim suffers mental, emotional or physical harm. There are 4 stalking offenses. Two are misdemeanors and 2 are felonies. Stalking in the second degree is felony. It is considered serious enough to be classified as a felony because it involves the presence of a deadly weapon such as a gun or a knife. If you are convicted of stalking in the second degree there is a strong possibility that you will be sentenced to prison. Thus, if you have been charged with stalking in the second degree do not hesitate to immediately contact an experienced Queens Stalking in the Second Degree Lawyer who will carefully review the facts of your case and who will aggressively defend you from the beginning of the case until it is resolved.

Criteria for a Stalking in the Second Degree Charge

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. Fourth and third degree stalking are misdemeanors, while second and first degree stalking are felonies. While stalking in the second degree is not the most serious stalking charges, it has serious consequences. Stalking in the second degree 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, and in doing so you also display a weapon. Or you do so after within the last 5 years being convicted of a predicate sex offense. Or you stalk 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

The stalking in the second degree statute lists specific weapons that you must display, have and threaten to use for a stalking in the second degree charge. These weapons include a firearm, pistol, revolver, rifle, shotgun, machine gun, electronic dart gun, electronic stun gun, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, slingshot, slungshot, shirken, "Kung Fu Star", dagger, dangerous knife, dirk, razor, stiletto, or imitation pistol. However, you will not avoid a stalking in the second degree charge simply because the weapon you displayed is not on this list. The statute also has a catchall provision that states that you will face this charge if you display any dangerous instrument, deadly instrument or deadly weapon. N.Y. Pen. Law § 10.00(12). Furthermore, even if what you display only appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, you can be charged with stalking in the second degree.

A deadly weapon is defined as any weapon readily capable of producing death or other serious physical injury. N.Y. Pen. Law § 10.00(13). Generally, a deadly weapon is a gun or a knife. On the other hand a dangerous instrument is can be almost anything. It is a term used to describe an object that while not typically considered to be a dangerous or deadly weapon, when used to harm someone or attempt to harm one is capable of causing death or serious physical injury. A common example of a dangerous instrument is a vehicle. However, the court has determined a variety of other objects to be dangerous instruments based on how they were used. For example, in People v. English, 988 N.Y.S.2d 163 (2014) the court determined that a boot was a dangerous instrument, while in People v. Taylor, 986 N.Y.S.2d 711 (2014), the dangerous instrument was a pocket knife, and in People v. Muhammad, 971 N.Y.S.2d 74 (2013) a hammer was used as a dangerous instrument. In one case where the defendant punched the victim causing the victim to fall back onto the sidewalk, the court concluded that the sidewalk was a dangerous instrument. People v. McElroy, 981 N.Y.S.2d 298 (2014)

It is important to keep in mind that even if you do not use the weapon and even if you do not physically injure the victim, you will still be charged with stalking in the second degree if you display a weapon or dangerous instrument or threaten to use it.

Arrest and Arraignment

If you are arrested and charged with stalking in the second degree the first step is that you will be taken to the local police precinct where initial processing will take place. After initial processing you will be taken to Central Booking where you will remain until your case is called for arraignment. Arraignment is the first time that you will appear before a judge. At that time you will be formally charged. You will have the opportunity to make a plea of guilty, not guilty or no contest. If you plead not guilty, then the issue of bail will be determined. The judge's options are to release you on your own recognizance, meaning that no bail is required, setting a bail amount, or ordering that you be held without bail.

At some point the prosecutor may offer you a "deal." The prosecutor will try to resolve the case without going through the time and expense of a trial. Thus, the prosecutor may offer you the option to plead guilty to a lesser criminal charge such as stalking in the third degree. The incentive to you will be that you would receive a lighter sentence then you would receive if you were found guilty of the original charges are a trial before a judge or jury. However, if you accept the plea agreement you will still be convicted of a crime and you will still receive some sort of punishment.

Consequences of a Stalking in the Second Degree Conviction

Because stalking in the second degree is a Class E felony, if you are convicted the maximum sentence is 4 years in state prison and a fine of up to $5,000. The actual length of your prison sentence will depend on factors such as your prior criminal record. The court will classify you as follows based on your criminal record. If you have no prior felony convictions within the past 10 years, the judge may sentence you to probation. If your status is that of a predicate offender meaning that you have been convicted of a felony within the prior 10 year then the court will sentence you to at least 1.5 to 3 years. If you are a persistent felony offender meaning that you have been convicted of a at least 2 felonies at any time then the general sentencing rules with respect to minimum and maximum sentences are disregarded. The minimum sentence you will receive is 12-25 years in prison, and the maximum possible prison sentence is life. N.Y. Pen. Law § 70.08.

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 damage the victim's property, the court may order you to pay the cost of repairing or replacing the property. If you cause the victim to lose his or her job, the court may require you to pay the victim lost wages. Generally, the maximum amount of restitution is $15,000 for a felony offense. However, under some circumstances the law allows a judge to order a higher amount of restitution to be paid to the victim. In addition to the amount of restitution that the judge orders you to pay, you will also be required to pay a 5% surcharge.

Fees

In New York if you are convicted of stalking in the second degree you will be required to pay certain statutory fees. One fee is a $300 "mandatory surcharge." 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 pay probation supervision fees of $30 per month.

Probation

If you are convicted of stalking in the second degree there is a chance that part of your sentence will be a probation term of 5 years. While probation is preferable to being incarcerated you should know that probation comes with many restrictions that you must agree to as conditions of your probation. 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. While the court will design a set of rules specifically for you based on your criminal background, substance abuse background, and personal history, typical rules include:

  • You must not commit a crime-- not even a misdemeanor
  • You must not hang out with other people who have criminal records
  • You must not patronize places known for illegal activity
  • You must not use or possess illegal drugs 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 the excessive use of alcohol. It is also possible that drinking any alcohol will be prohibited.
  • 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.
Order of Protection

If you are charged with stalking in the second degree the prosecutor will probably request that a Criminal Court Order of Protection be issued against you in favor of the victim. Such an order may be issued as a condition of your release. This means that you will not be permitted to follow, harass, or communicate with the victim. In other words you must cease activity that could amount to stalking. If you violate the Order of Protection you will face a criminal contempt charge. For example In People v. Lawing, 975 N.Y.S.2d 778 (2013) an Order of Protection was in place prohibiting defendant Jermel Lawing from going near his former girlfriend or their child. After violating the order on 3 occasions, Lawing was charged with two counts of criminal contempt in the first degree and one count of criminal contempt in the second degree. Upon conviction, Lawing was sentenced to 1 year in prison for the second degree charge and consecutive prison terms of 1 1/3 to 4 years for the two counts of first degree criminal contempt.

If you do not believe an Order of Protection is not warranted, there are ways that you can fight an Order of Protection. However, if you are ultimately convicted of the stalking charges, the temporary Order of Protection may be turned into a permanent Order of Protection that may remain in effect for years.

Long-Term Consequences

If you are convicted of stalking in the second degree, unless you are a persistent felony offender the amount of time that you will spend in jail ranges from 0 to 4 years. However, whether the amount of prison time is a few days, a few months, or a few years, the consequences of being convicted of stalking in the second degree goes 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 negatively affect 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.

If you are arrested and charged with stalking in the second degree, you should take the situation very seriously and immediately contact an attorney with experience. There is a long list of undesirable consequences that you will have to face if you are convicted of stalking. Such consequences will damage your family relationships as well as your professional future. 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 in the second degree as well as other stalking charges, assault, harassment, menacing, and reckless 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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