New York Stalking and Domestic Violence

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

Domestic violence is a crime where the perpetrator and the victim are involved in a domestic relationship. Examples of domestic relationships include spouses, those who are dating, those who live together, those who are part of the same family and those who share children. When the police receive a call about a domestic disturbance, there are several crimes that could have taken place such as assault, sexual assault, harassment, reckless endangerment, or even murder. One of the most common criminal offenses that occur between people in domestic relationships is stalking. Stalking is a crime that involves repeatedly following someone or communicating with someone in a manner that causes that person to feel threatened. Stalking acts can include following someone by foot or car, using technology such as GPS to track someone, repeatedly calling, email, or texting another person, showing up at the victim's place of work, or sending messages to the victim via a third party. While stalking sometimes involves the display or use of a weapon or physical injury to the victim, stalking can also involve behavior that instills fear, or emotional or mental harm. Because fairly innocuous communication or contact often disintegrates into violent and even deadly stalking behavior, law enforcement often aggressively seeks to punish those who are accused of stalking. Conviction of a stalking offense can land you in prison for several years. If you have been involved in a domestic dispute that has lead to you being charged with stalking it is critical that you immediately contact an experienced New York Domestic Violence and Stalking Lawyer who understands both domestic violence and the criminal statute related to stalking, and who will aggressively defend you against the charges.

• New York Criminal Lawyer
• N.Y. Penal Law and Stalking
• N.Y. Penal Law and Stalking in the First Degree
• N.Y. Penal Law and Stalking in the Second Degree
• N.Y. Penal Law and Stalking in the Third Degree
• N.Y. Penal Law and Stalking in the Fourth Degree
• N.Y. Penal Law and Stalking and Domestic Violence
• N.Y. Penal Law and Stalking Sentencing
• N.Y. Penal Law and Stalking and Sexual Assault
• N.Y. Penal Law and Stalking and Order of Protection

Types of Domestic Violence Stalking Offenses

If you are accused of stalking someone with whom you have a domestic relationship, there are four criminal offenses that you could face: 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 your spouse, girlfriend or someone else with whom you have a domestic relationship that:

• Is likely to cause reasonable fear of physical harm to that person, that person's family, or to that person's property, or that
• Is likely to cause that person to fear that his or her job, business or career is threatened where that conduct is showing up at that person's job or telephoning or in some other way communicating with that person at his or her job, or that
• 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 using GPS to track that person.

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 him or her 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 the stalking in the third degree in 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. The difference is that in the case of stalking in the second degree you also display a weapon. Or you engage in the stalking behavior 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 with whom you have a domestic relationship you also cause the person physical injury. Or while stalking that person you also commit the crime of 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, and 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, and restitution, or a combination of these penalties. In almost every stalking case, the court will issue an Order of Protection against the person accused of stalking in favor of the victim.

Prison and Fines

The amount of prison you will receive for a stalking conviction generally ranges from 0-7 years. The fine you will be required to pay may be as much as $15,000. In addition to the particular crime you were convicted of, your criminal history will have a great impact on the sentence you receive.

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 no 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 your 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 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 at all and that your entire sentence will be probation. For a Class B misdemeanor the term of probation would be 1 year, for a Class A misdemeanor, 3 years and for a felony, 5 years. While probation is preferable to being incarcerated you should know that serving probation can be difficult. 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 breaking the law. If you violate 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.

Domestic violence court

When you are involved in a domestic violence crime, your case may be handled by a special court called the Integrated Domestic Violence Court (IDV). To be eligible for IDV court, the parties involved must have a criminal domestic violence case as well as a family court case or a matrimonial case. While all cases will be adjudicated separately, a single judge will oversee all cases to ensure that the outcomes are coordinated and not inconsistent.

Furthermore, cases handled in IDV have systems in place to facilitate access to community services such as victim assistance services and to ensure intensive defendant monitoring. For example, if you are on probation, the court will designate someone to work closely with you and the IDV to oversee compliance with the terms of your probation.

Orders of Protection

Domestic violence stalking cases almost always involve the criminal court judge issuing an Order of Protection in favor of the victim. The court will likely issue a temporary Order of Protection that may be a "stay away" Order of Protection, "refrain from" Order of Protection or a combination of both. If an Order of Protection is a stay away order, then you must not have any type of contact with that person. This means that you must:

• Not have any physical contact with the victim, even if the victim is your spouse, girlfriend, or parent of your child
• Stay away from the person's home, school or place of business
• Not call the person
• Not email or fax that person
• Not send that person letters
• Not send the person messages through other people
• Not send the person gifts or flowers

If there is a refrain from Order of Protection, then you are prohibited from harassing, intimidating, threatening or otherwise interfering with that person. While a criminal court Order of Protection that is issued at the beginning of a criminal case is generally temporary, depending on the outcome of the case, a temporary Order of Protection may become final or permanent-- meaning that it will remain in effect for several years. It the court concludes that there is no basis for the Order of Protection, it will be dismissed. If you believe that there is no basis for the order, you can fight it.

However, if an Order of Protection is in place and you violate it, you risk being charged with criminal contempt, a misdemeanor. As punishment you could be sentenced to jail or probation.

Long-Term Consequences

The consequences of being convicted of any stalking charge go well beyond what the judge orders. You will have a criminal record that could impact many aspects of your future. Having a criminal record will mean the following:

• Difficulty finding a job as most employers perform criminal background checks
• Refused admission into some colleges as more and more colleges are now performing background checks on applicants
• Barred from living on campus. Some schools will admit students with criminal backgrounds but will not allow them to live in campus dormitories.
• Barred from certain professions that require licensing such as teaching, practicing law, driving a taxi, working as a security guard, and operating a child day care business
• Barred from owning a gun
• Barred from serving on a jury
• Ineligible for certain government benefits such as welfare or federally funded housing
• Deportation, if you are not U.S. citizen- even if you are in the U.S. legally
• Temporarily barred from voting

Furthermore, having a criminal record is also likely to affect child custody arrangements or visitation, particularly if the victim of your stalking was your spouse or your child's other parent.

Any type of crime related to domestic violence has serious consequences not only for you personally, but also for your family. Stalking is no different. If you are convicted you could very well end up in jail. If you are in a domestic relationship with your victim, your relationship with that person as well as family members such as children you share with the victim may be strained or seriously damaged. However, there may be defenses to stalking charges that may result in the charges being dropped, reduced, or in you being acquitted. Only an attorney with experience will understand the laws related to stalking well enough to effectively defend you. 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 domestic violence, assault, harassment, menacing, sexual assault and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of stalking in the following locations:

---