Unlawful Surveillance – PL 250.45: From “Up Skirts” to Bathroom Recorders – Must All Defendants Register as Sex Offenders Upon Conviction

Every criminal arrest or conviction has a collateral consequence. Obviously, some are more severe than others. While an arrest can be humiliating, a conviction can strip us of many rights we take for granted, destroy our ability to continue in our career or set a chain of events into action that ultimately result in our deportation. One crime that often has these secondary consequences is the New York felony crime of Second Degree Unlawful Surveillance. Unlawful Surveillance in the Second Degree, New York Penal Law 250.45, is routinely viewed by prosecutors in an extremely different light than the accused (as noted by the intensity of these prosecutions). While a defendant may argue this was a crime of opportunity by an otherwise “good” person, a police officer, detective or Assistant District Attorney, is more likely to view this crime as a premeditated and malicious act. Yes, your criminal lawyer or Unlawful Surveillance defense attorney may seek to convince a prosecutor that the recording was one act, a prosecutor may counter that it was many acts. In fact, it is fairly common for prosecutors to execute search warrants on mobile phones and other recording devices. When or if they find evidence of the current arrest charge or past acts, its is equally common for prosecutors to stand firm with a felony charge.

Irrespective of the above arguments in an Unlawful Surveillance case by either your criminal lawyer or the prosecutor, avoiding a felony conviction is critical. Yes, a felony can land in prison, but long after your case is over, NY PL 250.45 has significant ramifications. New York State Correction Law § 168-a[2][e] establishes that a person convicted of subdivision two (2), three (3) or four (4) of New York Penal Law 250.45 is a “sex offender.” As such, if you are convicted, like a rapist or child molester, you must comply with the New York State Sex Offender Registration Act (“SORA”). While your level may not be as high as those individuals convicted of the crimes I just mentioned, to a certain extent, registration is registration. The level wont matter to your neighbors, employer, etc. You are deemed a sexual predator by society.

Fortunately for those individuals accused of this crime, there is the potential, with the right advocacy,to avoid SORA. New York State Correction Law § 168-a[2][e] permits a trial court to examine the history and character of the accused along with the nature and circumstances of the crime (was it an iphone or a “spy camera” used to look up a skirt of a commuter where no evidence of prior conduct exists or a video recorder set in the room of an underage boy or girl?). The goal that you and your counsel may seek in these circumstances is a finding that requiring registration would be “unduly harsh and inappropriate.” Again, fortunately for the accused (the general public may rightfully disagree and understandingly so), upon the motion of the defense attorney, there may be a means by which closure of the criminal case in the courtroom can also mean closure of subsequent registration.

Second Unlawful Surveillance may not be the highest degree crime or felony, but a felony conviction of any kind is as crippling as it is devastating. Can your attorney knock down the charge from PL 250.45 to a misdemeanor? Is there another grounds to challenge your stop, arrest and ultimate search of the recording device? What steps should you take to protect your future and when should you start your defense? All questions good questions. All of these questions need to be answered.

Educate yourself on the criminal process from arrest and arraignment through understanding the actual New York Penal Law charges and practical application of the criminal law. There is no substitute for preparation, education and advocacy.

To read more about Unlawful Surveillance in New York, please follow the links above or review the NewYorkCriminalLawyerBlog.Com (the links return to a past blog entry as well as the more in depth website content).

Crotty Saland PC is a New York criminal defense firm located in New York City and servicing clients throughout the region. The two founding New York criminal attorneys both served as prosecutors in the Manhattan District Attorney’s Office before establishing the law practice.

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