Intro to New York Stalking Laws
In New York State, it is a crime to stalk another individual. They do not need to be a stranger to you, it can be someone you know, but in any event it is a crime that is taken very seriously by prosecutors and courts across the State. On its most basic level, stalking is the crime that occurs when someone harasses another person or acts with the intent to specifically place another person in fear of physical harm. While other crimes may be aggravated or elevated to first degree or second crimes based upon certain criteria , the crime of stalking is a progressive series of crimes and there are multiple degrees. Each degree of the crime of Stalking correlates to a series of actions by the individual charged and what the individual had in mind when the activity occurred. Here is a brief overview of the various levels and degrees of Stalking crimes in New York State:
The law is designed to provide significantly enhanced penalties above those provided by other laws for crimes such as Harassment and Menacing when the elements of Stalking are met by someone in New York State. Whether an action constitutes a Stalking crime is a fact-based inquiry specific to the situation and one should probably avoid facing charges of Stalking. If you have been charged with Stalking or any other crime related to stalking another individual, you should seek the experienced representation of a Stalking lawyer immediately. Stalking is a serious crime and goes beyond the standard criminal charge for a typical crime. It is an aggravated or circumstantial crime and there are affirmative defenses to Stalking that you may be entitled to. It is important to speak with a seasoned criminal defense attorney as soon as possible to review the specifics of the situation and your legal rights.
The Stalking Definition in New York
In New York State, the legal definition of stalking consists of a series of actions, which when taken as a whole, resonate as a threat to the safety and privacy of the stalking victim. The Stalking statute in New York is codified in Section 120.45 of the New York Penal Law. The statute defines Stalking as follows:
"A person is guilty of Stalking in the Fourth Degree when he or she intentionally and repeatedly follows in close proximity or monitors, either in person or by electronic means, another person or engages in a course of conduct directed at another person and knows or should know that such conduct is likely to cause fear of material harm to the physical health, safety or property of some person, or harm to the mental or emotional health of some person, or place another in reasonable fear of suicide or of self-inflicted injury." New York categorizes Stalking into four degrees of misdemeanors, depending on the severity and violentness of the Stalking act. A Stalking offense will be elevated from Stalking in the Fourth Degree (a Class B misdemeanor) to Stalking in the Third Degree (a Class A misdemeanor) if the Stalking results in the aforementioned reaction from the victim or third parties. The new Stalking in the Third Degree offense, formerly described as Aggravated Harassment in the Second Degree, is defined under Section 120.50 of the Penal Law. The statute describes the offense as follows: "A person is guilty of Stalking in the Third Degree when he or she commits the act of stalking and either: (a) has been previously convicted of stalking in the fourth degree, or (b) is in violation of an order of protection issued pursuant to article eight, ten, eleven or twelve of the family court act, article six or seven hundred twenty-eight of the civil practice law and rules or section 530.13 of the criminal procedure law, or of a temporary or permanent injunction pursuant to section 220.20 of the civil practice law and rules, section eight hundred twelve of the business corporation law, section nine hundred nineteen of the not-for-profit corporation law, section 36-b of the general business law or section 242 of the real property actions and proceedings law to stay distance from the protected party." "In a Stalking offense, it is intent that differentiates between degrees of guilt. In order to be guilty of Stalking in the First or Second Degrees, the defendant must have either the intent or the knowledge that the victim will be placed in reasonable fear of physical harm to themselves or their family, or reasonably placed in fear of suicide or self inflicted injury. Stalking in the Third and Fourth Degrees, on the other hand, requires the defendant to simply be aware that their behavior, while of an alarming nature, is potentially harmful to the victim. The perpetrator does not have to intend to harm the victim, but the victim must reasonably fear harm."
Penalties for Stalking Crimes in New York
The penalties for stalking under New York law fall into two categories: misdemeanor crimes and felony crimes. Each level is differentiated by the facts and circumstances of the offense.
A Class A misdemeanor stalking charge is a charge for the private nuisance of repeatedly following someone. Under these circumstances, a Class A misdemeanor charge is punished by up to 1 year in jail and/or 3 years’ probation. A Class A misdemeanor stalking conviction can also result in the loss of your pistol permit, gun licenses, and permits for any other weapons. A Class B misdemeanor stalking charge is a "lesser" stalking charge and is generally punished by a maximum of 90 days in jail.
Felony stalking charges can range from a D level violent felony to a Class E felony. D level violent felony stalking charges are charged when the alleged victim suffers serious physical injury amounting to either a permanent impairment or serious disfigurement. If the stalking offense involved a weapon or if the defendant was in a position of authority over the victim (such as a teacher on student) the crime will be treated as a C level violent felony (and if there are aggravated circumstances, a B level violent felony). C level felonies are punished by a maximum of 15 years in prison if the crime is violent (or 7 years if the crime is not violent). B level felonies are punished by a maximum of 25 years in prison. E level felonies are punished by a maximum of 4 years in prison.
Victim Legal Protections
The primary legal protections available to victims of stalking in New York State are orders of protection, followed closely by the filing of criminal charges. New York State has a unique procedure when it comes to issuing court orders of protection (i.e., staying away orders). The petitioner who would like an order of protection files a petition. Next, if the court determines that there is any type of immediate danger or threat to safety, an ex parte order of protection is signed without the other party present and issued immediately. This is a very important part of the process – it is important that the victim demonstrates pursuant to statute a reasonable fear of imminent danger. The next step is a brief conference, often called a "show cause hearing" where the parties come before a judge to discuss the circumstances and determine whether another order is necessary. From the judge’s point of view, there must be a clear danger regardless of whether the person is charged with a crime. If the judge finds no immediate need for an order, the case is over and there is no order. The next step is a fact-finding hearing, which may be held the same day. The crucial difference for the respondent is that at the conference the respondent is not yet entitled to an attorney. By the fact-finding hearing phase, representation is necessary to ensure the respondent’s ability to defend him- or herself. Note that a person who has been accused of stalking can request visitation with the children, if needed. If crimes have been committed, they may proceed concurrently or a case may be dismissed.
Reporting Stalking in New York
If you believe you or someone you know is being stalked in New York, it’s essential to take action. The first step is to document everything. Keep a detailed log of each encounter with the alleged stalker, including dates, times, locations, witnesses, and the content of conversations or actions. If the stalker has made threats, saved messages and save screenshots of text messages, social media, and emails. Video or photo evidence can also be powerful tools in proving your case to law enforcement.
Once you’ve documented the incidents, the next step is to report the stalking to the police. While it is not mandatory to file a report, it will provide an official record of the events and help law enforcement to take further action if needed. Be prepared to file a police report, providing all the evidence you have gathered. This may include the log of incidents and any other relevant information you have compiled . Ensure you report the crime to both state and federal authorities, as federal law covers stalking in certain instances of crossing state lines or using a device to track someone’s movements.
In addition to reporting to law enforcement, you may also wish to contact an attorney who can assist you with obtaining an order of protection. This is important if the stalker is a co-worker or classmate, as additional legal action may need to be taken against the institution. This may include federal complaints, workplace grievances, or academic disciplinary action.
Regardless of your situation, the most important thing is to keep safe. Be aware of your surroundings, especially in your own neighborhood or around people you do not know well. Make your home secure, whether that means changing the locks, installing a security system, or using pepper spray should the need arise. Consider getting a restraining order if you feel that you are in danger, especially if you have notified the authorities. Finally, if you do not feel safe, reach out to someone you trust.
Stalking Law Updates
Recently, New York lawmakers have made significant changes to its stalking laws, particularly in the context of digital and electronic communications. Stalking in the Third Degree and Stalking in the Fourth Degree are now considered Aggravated Stalking in the Third Degree and Stalking in the Fourth Degree respectively, when the relevant offenses were committed with the "purpose to cause substantial emotional distress to a person and when the course of conduct would put a reasonable person in fear of substantial emotional distress." In 2021, the legislature further expanded on this legislation, implementing new penal law sections 120.44, 120.45 and 120.46, thereby allowing for the prosecution of aggravated stalking in the first and second degrees, and the stalking in the second degree.
The creation of these new offenses provides clearer definitions of what constitutes stalking behavior under New York penal law. For instance, Stalking in the First Degree is defined as when "With intent to repeatedly and continually harass and intimidate a person, he or she engages in a course of conduct which causes the victim to reasonably fear physical injury." Stalking in the Second Degree requires the stalker to have been previously convicted of stalking, or having violated an order of protection. Aggravated Stalking in the Fourth Degree prohibits a stalker who has previously "been convicted of a predicate offense" from causing physical injury in the commission of stalking behavior.
In addition, while many states have enacted legislation that makes it a crime for offenders to contact victims through the use of digital communication, New York took it a step further. Now, to be in violation of Stalking in the Fourth Degree, the stalker must communicate through any "computer, electronic or other form of communication."
With these new changes, offenders can be prosecuted to the fullest extent for their behavior. For victims, offenses are now better defined, allowing for a better understanding of their rights and recourse options available to them.
Resources for Stalking Victims
Victims of stalking, harassment, and intimidation have access to a wide range of resources and support groups designed to meet their specific needs. The New York State Coalition Against Domestic Violence offers an extensive list of statewide resources that can be filtered by the specific type of assistance needed.
In addition to these resources, there are also numerous hotlines you can call for immediate support and guidance. The National Domestic Violence Hotline is available by phone 24 hours a day at 1-800-799-7233. In New York , the New York State Domestic Violence and Sexual Assault Hotline provides another valuable resource for victims of stalking and harassment. Through this service, those in need can access immediate assistance and support at 1-800-942-6906.
The city of New York also has its own domestic violence and stalking hotline: 1-800-621-HOME (4663). If you prefer to speak to someone from the LGBTQ community, the national resource center for LGBTQ domestic violence and stalking is a resource for you. The number is 1-866-422-7233.