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New York Stalking in the First Degree

N.Y. Pen. Law §120.60

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 you do so you will have committed the crime of stalking in the fourth degree, a misdemeanor. However, the crime of stalking can be much more serious. 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. If you are convicted of stalking in the first degree, you will go to prison not only for the crime of stalking, but for any other crime that you committed while stalking. Thus, if you have been charged with felony stalking in the first degree do not hesitate to immediately contact an experienced New York Stalking in the First Degree Lawyer who will carefully review the facts of your case and who will support you and vigorously defend you from the beginning of the case until it is resolved.

Criteria for a Stalking in the First 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. Stalking in the first degree is the most serious stalking charge with the most serious consequences.

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. Stalking in the first degree is a Class D felony. N.Y. Pen. Law § 120.60

For example, 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.

Defenses to a Stalking in the First Degree Charge

Depending on the facts of your particular case, there may be ways to challenge a stalking in the first degree charge. If you are able to successfully challenge elements of the prosecution's case against you, the result may be that the stalking in the first degree charge is dropped completely, that the charge is reduced to stalking in the second degree or misdemeanor stalking, or that you are eventually acquitted of the charge.

For example, if you are charged with stalking in the first degree based on allegations that in the course of stalking someone you caused that person a physical injury, you may be able to show that the person did not in fact suffer a physical injury. The New York criminal statute defines physical injury as one that causes a physical impairment or substantial pain. The court has interpreted this to mean that while the injury does not have to be severe, there must be some evidence of an injury other than the victim complaining that he or she was hurt. For example, in People v. Rodriguez, 158 A.D.2d 376 (1990) the defendant was convicted of assault based on punching the victim in the leg. However, on appeal the conviction was overturned. The court found that evidence did not support a conclusion that the victim suffered a physical injury. The victim suffered some bruising and complained of some pain. However, the court concluded that this was not enough to meet the statutory requirement of a physical injury. If you can show that the victim did not suffer a physical injury, you may have a strong defense to stalking in the first degree charges.

If you are charged with stalking in the first degree charge based on having committed a sex offense against the victim, you can argue that you did not commit that sex crime. For example, a defense to rape, criminal sexual or any sex crime is that the other person consented to the sex act. If you can show that there was consent then you may have valid defense to the sex crime charge. That would also mean that you have a valid defense to the stalking in the first degree charge.

Consequences of a Stalking 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 even if you have no prior felony convictions within the prior 10 years the judge will still be required to sentence you to at least 2 years in prison. If you have a prior non-violent felony conviction within the past 10 years 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.


Another financial consequence of a stalking in the first degree conviction is that the judge may order you to pay restitution 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. 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, 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.


In New York if you are convicted of a stalking in the first 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. If along with stalking in the first degree you are also convicted of a sex crime, you will be required to pay a sex offender registration fee as well as other fees associated with a sex crime conviction.


Part of your sentence for a stalking in the first degree conviction may be a probation term of 5 years. If you are sentenced to both prison and probation, you serve your probation term concurrently with your prison term. If you have served your entire probation term at the time you are released from prison, you must serve the remaining probation time after your release.

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-- 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.
Long-Term Consequences

After you complete the sentence that the judge ordered for a stalking in the first degree conviction as well as pay your financial obligations, there will still be long-term consequences that you must face. You will have a criminal record that will impact the rest of your life. For example, with a simple background check a potential employer will quickly learn that you were convicted of a violent felony. Many employers will be hesitant to hire someone with such a record. In addition, nowadays some college admissions officers perform background checks on applicants. Upon learning of your record, you may be denied admission, or your access to campus may be limited. You may also be ineligible for certain professional licensing such as a license to practice law, teacher, drive a cab or work as a security guard.

Other criminal charges

An important issue that you must take notice of is that if you are charged with stalking in the first degree you will necessarily face other very serious criminal charges. The prosecutor will only charge you with stalking in the first degree if the prosecutor also has evidence that you stalked the victim and caused the victim serious physical injury or that you committed a sex offense. This means that at a minimum if you are charged with stalking in the first degree you will face 2 serious felony charges. If you are convicted of any of the underlying sex offenses, the amount of time that you will have to spend in prison may be significantly more, probation time for a sex offense is 5 years, plus there are additional financial consequences of being convicted of a sex crime. Furthermore, if you are convicted of almost any sex crime you will have to register as a sex offender for at least 20 years.

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. You will have to pay thousands of dollars in fines, fees and restitution. The best way to try to avoid these consequences is 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 in the first degree as well as rape, criminal sexual act, sexual assault, harassment, menacing, and reckless 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:

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