Queens Stalking Sentencing

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

Stalking is a crime that involves repeatedly following another person or communicating with another person in a manner that causes that person to feel threatened. Stalking can be accomplished not only by following but in numerous other ways including by tracking using GPS, by calling, by email, or by contacting or communicating with that person at work. There are 4 different stalking offenses in New York. Two are misdemeanors, while the other 2 are felonies. If you are convicted of stalking the sentence you receive will be based on the stalking offense of which you are convicted, your prior criminal history, and the particular circumstances of the crime. For misdemeanor stalking you may get what some might consider a "slap on the wrist," while for a conviction of felony stalking you could end up in prison for many years. In either case, there are consequences of being convicted of a crime that could affect the rest of your life. For this reason if you are charged with stalking the best course of action would be to contact an experienced Queens Stalking Sentencing 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. The sentencing guidelines for each are different.

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:

  • makes that person feel that you may injure that person, injure that person's family, or damage that person's property, or that
  • harms that person's mental or emotional health, or that
  • causes that person to fear that his or her job, business or career is in jeopardy.

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

Because stalking in the fourth degree is a Class B misdemeanor if you are convicted of this crime the maximum time you will spend in prison is 3 months. You will serve this time in the local country jail and not in state prison. In lieu of prison the judge may sentence you a term of probation of 1 year. Or the judge may sentence you to both a short time in prison as well as probation. In addition, the judge may also order you to pay a fine of up to $500.

Stalking in the Third Degree. The offense of stalking in the third degree is the similar to stalking in the fourth degree except that it involves separately stalking at least 3 different people, stalking someone after having previously been convicted of a sex crime against that person or that person's family, causing that person to feel that you may physically harm, kidnap, imprison, or sexually assault him or her, or stalking someone again after being previously been convicted of stalking in the fourth degree.

Stalking in the third degree is a Class A misdemeanor. N.Y. Pen. Law § 120.50. If you are convicted of this crime the maximum time your will spend in prison is 1 year. You will serve this time in the local county jail and not in state prison. In lieu of prison the judge may sentence you to a term of probation for 3 years. Or the judge may sentence you to both a short time in prison as well as probation. In addition, the judge may also order you to pay a fine of up to $1,000.

Stalking in the Second Degree. Stalking in the second degree is very similar to stalking in the third degree in that it too 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. However, 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. If you are convicted, generally the maximum prison sentence is 4 years in state prison. N.Y. Pen. Law § 70.02. Your prior criminal record will have a significant impact on the actual prison sentence the judge gives you. Because stalking in the second degree is considered a non-violent felony, if you have no prior felony convictions within the prior 10 years, the judge has the option to sentence you to probation without sending you to prison. If you have a felony conviction within the prior 10 years you will be classified as a felony predicate offender. The judge will sentence you to at least 1.5 to 3 years. If you are a persistent felony offender, meaning you have been convicted of 2 prior felonies, the minimum sentence you will receive is 12-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. The judge may also order you to pay a fine of $5,000 as part of your sentence.

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 rape in the third degree, criminal sexual act in the third degree, female genital mutilation, rape in the second degree, and criminal sexual act in the second degree. N.Y. Pen. Law § 120.60. 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.

Additional Consequences of a Stalking Conviction

Restitution. As part of your sentence the judge may order to you 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, plus a 5% surcharge. 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 any stalking crime you will have to pay fees that are required by the criminal statute. One fee is a "mandatory surcharge." It is $300 for a felony offense and $175 for a misdemeanor. Another fee is a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are placed on probation you will have to pay a monthly $30 probation supervision fee.

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 stalking in the fourth degree the probation term would be 1 year and for stalking in the third degree the term of probation would be 3 years. Because stalking in the second and first degrees are felonies, the term of probation would be 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 are 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 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.

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.

Additional Crimes. If you are convicted of stalking you may also face additional criminal charges. For example, if you are convicted of stalking in the first degree, you may also be convicted of assault or a sex crime. Being convicted of 2 serious felonies means that you will face a great deal of time in prison.

Criminal Record. If you are convicted of stalking, unless you are a persistent felony offender the amount of time that you will send 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 affect could impact the rest of your life. For example, with a simple background check a potential employer could discover your criminal record and decide not to hire you. Similarly, some colleges perform background checks as part of the admissions process. If you have a criminal record some schools may decline to admit you. Also, several professions such as doctor, teacher, lawyer, taxi driver and security guard require licensing. You may be able to get a license or you may lose your license if you are convicted of a crime.

While many people believe that stalking is not a serious crime, if you are arrested for stalking you should take it very seriously. Even if you are convicted of misdemeanor stalking the consequences could affect several aspects of the rest of your life. Because of the consequences of being convicted of either misdemeanor or felony stalking 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, sexual assault, strangulation, reckless endangerment, and domestic violence. 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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