Following and Nothing More: Does Stalking without “Fear” Violate New York PL 120.45 or 120.50

Some times the best legal advice a criminal lawyer can give is not legal advice at all. In fact, it can be more parental than lawyer-like. Unfortunately, just as we don’t always listen to our parents we don’t always listen to our criminal defense attorneys either. With that little life lesson behind us, try listening to this. The best way to avoid an arrest or conviction for a New York Stalking crime, whether or not it is one of the two misdemeanor Stalking offenses of Stalking in the Fourth Degree (New York Penal Law 120.45) or Stalking in the Third Degree (New York Penal Law 120.50), is to steer clear of following, threatening or harassing other people. Sounds easy enough, right? Well, maybe it is and maybe it isn’t, but what if you are arrested for merely following a person without any allegations of physical or verbal threats? Is that sufficient grounds for the prosecution to sustain a viable complaint for Fourth Degree Stalking, NY PL 120.45? The following blog entry will address this very question.

In People v. Romero, 2015NY057707, NYLJ 1202746152466, at *1 (Crim., NY, Decided December 21, 2015), the defendant was charged with PL 120.45(1). More specifically, it was alleged that defendant at least three times (but apparently more) showed up at the complainant’s residence, courtyard and building. Although there was not claim that the defendant’s made any threats or violent gestures, the complainant stated that these actions placed her “in fear based on her knowledge of the defendant’s previous behavior.” It is important to note that the accusatory instrument charging the defendant did not have any language describing or setting forth this past conduct. Due to this, the defendant filed a motion to dismiss the crime of Fourth Degree Stalking for the facial insufficiency of the accusatory instrument.

A person is guilty of Fourth Degree Stalking pursuant to PL 120.45(1) when he or she intentionally, and for no legitimate purpose, engages in a course of conduct direct at a specific person, an knows or reasonably should know that such conduct is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, immediate family or acquaintance.

In dismissing the the accusatory instrument, the Court recognized that a defendant must have “actual or constructive knowledge that his behavior will cause the victim to fear ‘material harm'”. People v. Selinger, 48 Misc 3d 1218(A) (Crim Ct NY County 2015). Being obnoxious, but not behaving in a threatening manner, is generally not sufficient or enough to establish that the accused had the required knowledge. Id., citing People v. Lewis, 29 Misc 3d 978, 909 N.Y.S.2d 321 (Crim Ct NY County 2010). Instead, at a minimum the prosecution should plead in the information an “implied threat of danger.”  Although the Court gave some examples of this, repeatedly sliding a finger in a cutting fashion across a neck, emails stating that the accused is watching you or letters with pictures of violent historical figures would likely meet this burden at the preliminary pretrial stage.

Other actions could also meet the prosecution’s burden that relate to this particular case. In People v. Walcott, (Crim Ct NY County 2015), “this Court found the knowledge element satisfied in a case where the complainant observed the defendant sitting on her fire escape staring in at her through the window: ‘Any reasonable person would understand that repeatedly mounting someone else’s fire escape and staring at that person through the window would be likely to cause reasonable fear of material harm to the physical health, safety or property of such person.'”

Similarly, in People v. Kelly, 44 Misc 3d 1203(A), 997 N.Y.S.2d 100 (Crim Ct NY County 2014), the Court found the accusatory instrument sufficient where there was an implicit threat (and knowledge) where a complainant previously obtained an order of protection against the defendant in Family Court (where there was a finding of a violation of the Family Court Act and through the New York Penal Law). There the Court stated that “[s]ince the defendant knew that the complainant had been sufficiently concerned about her behavior to appear in Family Court and obtain an Order of Protection against her, there is a reasonable inference…that she knew that her actions would cause the complainant to fear that he would be harmed.”

Despite the above examples, however, this case is very different. There is no evidence of any threats or behavior, past or current, that would reflect on the defendant’s knowledge that merely showing up at the complainant’s place of residence would create this fear. In sum, without more “this Court simply cannot locate any reported decision sustaining the knowledge element of []120.45(1) on facial sufficiency review with conduct that is annoying, even seriously annoying, that does not contain either an actual or implied threat of danger, or that is not preceded by background facts that would make the obnoxious behavior itself constitute an implicit threat.” Selinger, 48 Misc 3d at 1218(A).

Without direct, circumstantial, implicit or historical evidence of violent, threatening, harmful or intimidating behavior, the Court dismissed the case.

To learn about Stalking and other crimes relating to harassment and fear, search this blog, go to or NYDeskAppearanceTicket.Com. There you can find information as it relates to both non domestic and domestic violence offenses of this nature.

Saland Law PC is a New York criminal defense practice serving clients throughout New York City and the Hudson Valley. The two founding New York criminal defense attorneys at Saland Law PC served as prosecutors in the Manhattan District Attorney’s Office prior to starting the defense firm




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