Westchester County Domestic Violence and Stalking

N.Y. Pen. Law §§ 120.45, 120.45, 120.45 & 120.45

The term "stalking" is often used in casual conversation to jokingly describe unwanted attention from another person. However, stalking is quite serious. In fact, it is a crime. When the focus of stalking behavior is a spouse, former spouse, someone you are dating or used to date, the mother or father of your children, your roommate, or some other family member, it is also an act of domestic violence. While one obvious form of stalking is following someone, stalking can take a number of different forms including repeated calling, emailing or sending letters to someone after that person has asked you to stop. Even a seemingly kind gesture such as sending someone gifts can be a form of stalking. On the other hand, sometimes making a few phone calls and sending a few gifts is nothing more than a few kind gestures. However, your innocent or kind actions may be misconstrued as criminal acts. The mere accusation of committing an act of domestic violence can be damaging to you family relationships as well as your professional relationships. If you end up being convicted of stalking the consequences will affect the rest of your life. Thus, if you have been charged with stalking your husband, wife girlfriend, boyfriend, or someone else with whom you have or had an intimate relationship, it is important that you immediately contact an experienced Westchester County Domestic Violence and Stalking Lawyer who will explain to you your legal rights and who will work closely with you to defend you against the charges.

Types of stalking charges

There are 4 stalking offenses in New York. Stalking in the fourth degree and stalking in the third degree are misdemeanors. Stalking in the second degree and stalking in the first degree are felonies. Each stalking offense involves intentionally and repeatedly harassing another person to the extent that that person becomes alarmed and frightened.

Stalking in the fourth degree. You will face this charge if you intentionally and for no legitimate reason engage in a course of conduct directed toward a specific person such as your spouse, former spouse, girlfriend or former girlfriend. And that course of conduct

  • Is likely to cause the victim to be fear that you will cause him or her physical harm, or physical harm to his or her family or acquaintances
  • Is likely to cause the victim mental or emotion harm
  • Is likely to cause the victim to fear that he or she may lose his or her job.

Stalking in the fourth degree is a Class B misdemeanor. N.Y. Pen. Law § 120.45. Conduct that can amount to stalking in the fourth degree includes following, tracking using GPS, telephoning, initiating communication after being told to stop, or appearing at the victim's place of business.

Stalking in the third degree. Stalking in the third degree is similar to stalking in the fourth degree. However, stalking in the third degree requires you to:

  • Commit stalking in the fourth degree against at least 3 people on at least 3 separate occasions
  • Commit stalking in the fourth degree and previously have been convicted of a specified predicate crime against the same victim or the victim's family including sexual misconduct, rape, criminal sexual act, sexual abuse, aggravated sexual abuse, incest, assault, menacing, or harassment.
  • Harass or annoy someone in such a way that that person reasonably fear that you might cause that person physical injury, that you might commit a sex offense against that person, or that you might kidnap or kill that person.
  • Commit stalking in the fourth degree after having been convicted of stalking in the fourth degree within the prior 10 years.

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 has the same elements as stalking in the third degree as well as one of the following additional elements.

  • You threaten to use a dangerous instrument or a deadly weapon such as a gun
  • You commit the crime of stalking in the third degree and previously have been convicted of a specified predicate crime against the same victim or member of the victim's family including sexual misconduct, rape, criminal sexual act, sexual abuse, aggravated sexual abuse, incest, assault, menacing, or harassment.
  • You commit the crime of stalking in the fourth degree and has previously been convicted of stalking in the third degree
  • If you are at least 21 and you repeatedly follow someone under the age of 14, or repeatedly engage in conduct that puts someone under the age of 14 in fear of physical injury.
  • You commits the crime of stalking in the third degree against at least 10 people in at least 10 separate incidents

Stalking in the second degree is a Class E felony. N.Y. Pen. Law § 120.55

Stalking in the first degree. You will have committed the crime of stalking in the first degree if in the course of committing the offense of stalking in the second or third degree you cause physical injury to the victim. Or, if in the course of committing the offense of stalking in the second or third degree you also commit the crime of rape in the third degree, rape in the second degree, criminal sexual act in the third degree, criminal sexual act in the second degree, or female genital mutilation. Stalking in the first degree is a Class D felony. N.Y. Pen. Law § 120.60

Arrest and Arraignment

Being charged with a crime in New York can be scary and overwhelming. If the police suspect that you have stalked someone you will be arrested and taken to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment. Within approximately 24 hours of your arrest you will be arraigned.

At your arraignment you will learn the exact charges against you. Beware that if you are arrested for stalking you may face additional criminal charges. Charges which commonly accompany stalking charges include assault, sexual assault, and reckless endangerment.

At your arraignment you will also learn whether or not bail will be required. Based on the arguments presented by both you and the prosecutor the judge will determine the level of flight risk you pose and whether or not bail should be ordered. The judge can choose to remand you, meaning that you will have to remain in jail while your case is being resolved. Or the judge can release you on your own recognizance (ROR), meaning that you will not be required to post bail to be released. However, if you are released it is imperative that you show up at court for every hearing and for each day of your trial. If you do not the judge may issue a warrant for your arrest.

At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of stalking after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.

Consequences of a stalking conviction

If you are convicted of a stalking crime your sentence may include incarceration, a fine, fees, restitution, probation or a combination of these punishments. Whether or not you are sent to jail depends largely on the seriousness of the crime of which you are convicted and your prior criminal record.

Prison

  • Class B misdemeanor. The maximum possible sentence is 90 days in jail.
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail.
  • Class E felony. The maximum possible sentence is 4 years in prison.
  • Class D felony. The maximum possible sentence is 7 years in prison.

The amount of prison time you receive for a felony stalking conviction will also depend on whether or not you have been convicted of any felonies within the last 10 years. It will also depend on whether your prior conviction was for a violent felony or a non-violent felony. If you have been convicted of 2 or more felonies, you will be classified as a persistent felony offender. You will be given a harsh sentence, involving a minimum of several years in prison.

Probation

Part or all of your sentence may also include probation. For a Class B stalking conviction the probation term will be 1 year, for a Class A stalking conviction the probation term will be 3 years, and for felony stalking the probation term will be for 5 years. While probation is preferable to incarceration, probation has many restrictions. There will be several rules that you will be required to follow such as that you must:

  • Avoid injurious or vicious habits
  • Refrain from frequenting unlawful or disreputable places
  • Refrain from consorting with disreputable persons
  • Have a job or be enrolled in school
  • Undergoing available medical or psychiatric treatment and remaining in a specified institution, when required for that purpose
  • Complete an alcohol or substance abuse program, if ordered by the court
  • Support your family
  • Pay restitution
  • Perform community service
  • Post bond or other security for the performance of any or all conditions imposed;
  • Install an ignition interlock device on any vehicle that you use
  • Refrain from consuming alcohol
  • Regularly report to your Probation Officer
  • Obtain permission before traveling or moving outside of New York
  • Notify your Probation Officer if you move or change employment
  • Submit to electronic monitoring

N.Y. Pen. Law § 65.10.

If you violate any of the terms of your probation, your Probation Officer may file a Violation of Probation with the court. You will then be required to appear before the judge who originally sentenced you to probation. That judge will listen to evidence and determine if you did indeed violate the terms of your probation. If the violation is minor such as failing to report to your Probation Officer of report a new address, then the judge may choose not to violate you. On the other hand if the violation is significant such as you committing another crime, the judge could revoke your probation and resentence you to jail.

Fines, Fees and Restitution

In addition to being sent to prison, as part of your sentence the judge may order you to pay fines, fees, and restitution. For felony stalking the fine would be up to $5,000, while for a misdemeanor stalking offense the fine would be up to $1,000. Fees include a "mandatory surcharge" of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes probation or post-release supervision you will be required to pay a monthly supervision fee of $30. The amount of restitution you may be ordered to pay will be based on the losses suffered by the victim such as medical bills. Generally, the maximum amount of restitution is $15,000 for a felony and $10,000 for a misdemeanor. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

Failure to pay a fine, fee or restitution may result in you being charged with yet another crime that could mean a year in prison. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Long-Term Consequences

Being convicted of a felony stalking will result in you having a criminal record. While your prison sentence, probation term will all end, and you will be able to pay off your financial obligations, a criminal record will remain with you for the rest of your life. Here are a few ways that having a criminal record will impact your life:

  • Difficulty in finding a job, as many employers will resist hiring someone with a violent criminal past
  • Barred from certain professions such as teaching, practicing law, driving a taxi, or being a security guard
  • Ineligible for certain government benefits such as welfare and federally-funded housing
  • If you are not a citizen you may be subject to deportation under federal law
  • Barred from enrollment in some schools, or barred from living on campus at some schools
  • Barred from serving on a jury
  • Barred from owning a gun

Furthermore, being convicted of domestic violence stalking may permanently disrupt your family relationships if you are married to the victim or share children with the victim. For example, such a conviction may result in you losing custody of your children.

Stalking is a crime that law enforcement takes quite seriously. Prosecutors will seek to aggressively prosecute those charged with stalking, as even seemingly innocuous stalking behavior can lead to serious acts of violence. However, just because you have been charged with stalking does not mean that you will be convicted. With experienced, aggressive representation there is a better chance that your case will be resolved in the best way possible. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with domestic violence, stalking, as well as other criminal offenses such as assault, reckless endangerment, strangulation, menacing, 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 domestic violence in the following locations:

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