NY Penal Law § 120.60: Stalking in the first degree

The crime of stalking is typically thought of as following another person or calling or emailing that person to the point that it becomes annoying. However, stalking is much more than merely annoying someone. At a minimum stalking is following, tracking, calling, emailing, texting, or in some other way communicating with another person so frequently and in such a manner that that person feels that his or her personal safety is at risk. If while in the process of stalking someone you also physically injure that person, or you commit another crime such as sexual assault, the stalking crime you would have committed is stalking in the first degree, a felony.

Under New York Penal Code § 120.60 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 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.

In People v. Gomez, 842 N.Y.S.2d 21 (2007), defendant Saul Gomez was convicted of stalking in the first degree after causing serious physical injury to his stalking victim. Gomez repeatedly punched his victim, causing swelling, bleeding, difficulty walking and substantial pain.

1. Kidnapping in the second degree: New York Penal Code § 135.20
2. Harassment in the first degree: New York Penal Code § 240.25
3. Aggravated harassment in the second degree: New York Penal Code § 240.30

A possible defense to a stalking in the first degree charge is to show that the victim did not suffer any physical injury as required by that New York Penal Code § 120.60. It is not enough that the victim suffered a slight bruise or experienced some pain. The victim must have suffered some sort of impairment of physical condition or suffer substantial pain. Thus, if there is no physical injury as defined by the statute the prosecutor will have difficulty securing a stalking in the first degree conviction.

Because stalking in the first degree is a class D felony, if you are convicted the maximum sentence is 7 years in state prison and a fine of up to $5,000. It is also classified as a violent felony offense meaning that you will be sentenced to at least 2 years in prison. In other words, the judge will not have the option of sentencing you to just probation. Furthermore, the court will likely issue an order of protection in favor of the victim, making it a crime for you to contact the victim.

A person is guilty of stalking in the first degree when he or she commits the crime of stalking in the third degree as defined in subdivision three of § 120.50 or stalking in the second degree as defined in § 120.55 of this article and, in the course and furtherance thereof, he or she:

1. intentionally or recklessly causes physical injury to the victim of such crime; or
2. commits a class A misdemeanor defined in article one hundred thirty of this chapter, or a class E felony defined in § 130.25, 130.40 or 130.85 of this chapter, or a class D felony defined in § 130.30 or 130.45 of this chapter.

Being charged with stalking in the first degree is serious. Such a charge means that you have also been accused of other crimes. As a result a conviction means that you will have to spend a significant amount of time in prison away from your family members and your friends. Your professional life will be damaged. The best way to try to avoid these consequences is to have experienced representation. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with misdemeanors and felonies such as assault in the first degree, assault in the second degree, menacing, reckless endangerment, stalking, rape, and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.