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New York Stalking in the Fourth Degree

N.Y. Pen. Law §120.45

Many people joke about stalking and use the term casually to describe any person who is even a bit annoying. However, stalking is more than merely annoying another person. It involves repeated, seemingly obsessive, and unwanted behavior toward another person. As a result that person feels emotionally, mentally or physically threatened. Stalking behavior can include following, telephoning, tracking using GPS, emailing, and texting. It can also involve showing up at a person's place of employment, or sending someone messages through another person. While it is a crime commonly associated with domestic violence, it also common occurs in situations where the perpetrator and the victim are complete strangers. Stalking in the fourth degree is the least serious stalking offense and is one of 2 stalking offenses that are misdemeanors. Even though it is classified as a misdemeanor it is a crime. If you are convicted your personal life as well as your professional life will be negatively and in some cases permanently impacted in several different ways. Thus, if you have been charged with stalking in the fourth degree do not hesitate to immediately contact an experienced New York Stalking in the Fourth Degree Lawyer who will work closely with you to fight the charges against you.

Criteria for a Stalking in the Fourth Degree Charge

You will be charged with stalking in the fourth degree if you do one of the following:

  • Repeatedly follow, track or communicate with another person in a way that makes that person think that you might physically harm that person, harm that person's family or damage that person's property, or
  • Repeatedly follow, track or communicate with another person in a way that makes that causes the person to have mental or emotional harm, or
  • Show up at another's job or business, or communicate with that person at his or her job or business such that you put his or her job, business or career at risk.

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

For example, in People v. Tomossone, 961 N.Y.S.2d 360 (2013), the prosecutor presented evidence that after the Tomossone's supervisor suspended Tomossone, Tomossone began to stalk his supervisor by following him to his home and to other places in the area.

It is important to note that if the stalking behavior involves following, telephoning or initiating communication or contact then the victim must tell the perpetrator to stop to no avail. For example, in People v. Barrett, 929 N.Y.S.2d 201 (2011), the stalking in the fourth degree charge was dismissed because although the defendant did indeed engage in stalking conduct, the victim never told the defendant to cease such conduct.

Calling a victim and verbally threatening him or her is enough to meet the requirement of putting someone in fear of material harm to the physical his or her safety. For example, in People v. Brady, 81 N.Y.S.2d 637 (2013), defendant Brady Green was charged with stalking in the fourth degree. The prosecution showed that Green called the victim and threatened to slit his throat. Such a threat caused the victim to fear for his safety.

In People v. Angel, 961 N.Y.S.2d 360 (2012) defendant Susan Angel's actions put the victim's job at risk. Defendant created a flyer that depicted her estranged husband in a compromising position with their young son and distributed the flyer in front of her husband's workplace. Angel was convicted of stalking in the fourth degree as well as harassment.

To be convicted of stalking in the fourth degree you do not have to literally follow the victim around or constantly call, write or email the victim. As demonstrated by People v. Angel, it is enough to act in a way that is intended to harass, embarrass or annoy the victim. In another case the defendant made t-shirts that depicted the victim's picture along with vulgar language. The defendant distributed the t-shirts to a few other people and wore one to a bar that was frequented by the victim. The victim testified that by wearing the t-shirt and having others wear it, her emotional and mental well-being were harmed. As a result, the defendant was convicted of stalking in the fourth degree. People v. Carboy, 955 N.Y.S.2d 473 (2012)

Consequences of a Stalking in the Third Degree Conviction

Because stalking in the second degree is a Class B misdemeanor if you are convicted the maximum prison sentence is 3 months and a fine of up to $500. If part of your sentence includes incarceration you will spend that time in a local county jail and not in state prison.


Because stalking in the fourth degree is a misdemeanor, there is a good chance that all or part of your sentence will include probation. The term of probation for a Class B misdemeanor is 1 year. If your sentence includes both jail and probation, you will serve your probation term concurrently with your jail term. For example, if you are sentenced to jail for 30 days, while you are in jail you will also be on probation. Once you are released from jail you will have to serve the balance of your probation term which would be 1 year minus 30 days.

If you end up being convicted of stalking in the fourth degree, it will be a big relief to you if your sentence includes only probation. While probation is preferable to being incarcerated you should beware that some find probation to be quite challenging because of the rules that you will be required to follow. 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.

In the case of People v. Brandel, 924 N.Y.S.2d 311 (2011), the defendant was sentenced to probation after being convicted of stalking in the fourth degree. However, the court found out that Brandel violated the terms of his probation by possessing a pellet gun. As a result the judge revoked Brandel's probation and resentenced him to a 30-day jail term.


As part of your sentence the judge may order to you pay up to $10,000 in restitution. Restitution is paid to the victim to cover out-of-pocket expenses that result from your crime. For example, 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.


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 $175 "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.

Order of Protection

If you are charged with stalking in the fourth degree the prosecutor will probably request that the criminal court judge issue an Order of Protection against you in favor of the victim. This means that you will not be permitted to follow, harass, or communicate with the victim. If you violate the Order of Protection you will face a charge of criminal contempt. Or, if you have reached a plea agreement that includes that you must abide by the terms of an Order of Protection, if you violate such terms, the judge could throw out the plea agreement. This is exactly what happened in the case of People v. Talbot, 981 N.Y.S.2d 152 (2014). Defendant Talbot agreed to a plea bargain on criminal charges related to a domestic violence incident against his wife. An Order of Protection was issued requiring that Talbot stay away from his wife. As part of a plea agreement Talbot's sentence was to be 1 1/3-4 years in prison, as long as he did not commit any additional crimes. Talbot was arrested for violating the Order of Protection. As a result the judge threw out the plea agreement and sentenced Talbot to 2-6 years in prison.

However, if you do not believe an Order of Protection is warranted, there are ways that you can fight an Order of Protection. However, if you are ultimately convicted of the stalking charges, the temporary Order of Protection may be turned into a permanent Order of Protection that may remain in effect for years.

Long-Term Consequences

If you are convicted of any crime there will be consequences beyond the sentence ordered by the judge. This is so even though you are convicted of a misdemeanor and not a felony. If you are convicted of stalking in the third degree you will have a criminal record that will impact various aspects of the rest of your life. Here are some consequences:

  • Difficulty finding a job as most employers perform criminal background checks
  • Refused admission into some colleges
  • Barred from certain careers and professional 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

Even though stalking in the fourth degree is only a Class B misdemeanor, it is still a crime with serious ramifications. You will end up with a criminal record. You will have to pay a fine and fees. And you are likely to be placed on probation for a year. The best way to avoid these consequences is to be represented by someone with experienced. 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 fourth degree as well as other misdemeanor and felony criminal offenses such as 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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