Does A Work Email Account Constitute a Place of Employment in Violation of Stalking Pursuant to NY PL PL 120.45(3)

When those not familiar with New York’s criminal justice system and the New York Penal Law think of Stalking and Stalking related crimes, the picture that comes to mind is often of a man who follows a woman around a public place, sends unwanted solicitations by text, phone or email and even threatens violence with knives, guns or other weapons. While this may be true in many circumstances, there are different  “varieties” of Stalking. New York Criminal defense attorneys see or defend Stalking not merely as misdemeanors and felonies, but in wide variety of forms across varying types of conduct. In a recent case of first impression by a New York City Court Judge sitting in Manhattan (New York County), the Court had to render a decision as to whether or not a person’s work email address constituted their place of employment or business for the purpose of Stalking in the Fourth Degree. Although New York Penal Law 120.45(3) is the lowest level Stalking charge in New York’s criminal code, it is nonetheless a class “B” misdemeanor punishable by a term of incarceration. A conviction for this crime does note go away and is never sealed. In other words, all defenses must be explored.

In People v. Marian, 2015NY021806, NYLJ 1202732281855, at *1 (Crim., NY, Decided July 14, 2015), the defendant was accused of, among other things, following the complainant to a hotel and bar, grabbing the complainant around the neck, advising the victim that she would not stop following her and emailing the complainant’s work email account. More specifically, the the accusatory instrument alleged that “[f]rom January 17, 2015 to April 8, 2015, [the complainant] received approximately 10-15 emails from the defendant at both [her] work and personal email addresses.” Again, the conduct was far more extensive, but for the purposes of this particular issue, the relevant behavior were those contacts to the complainant’s business email address. The reason for this is because pursuant to NY PL 120.45(3), you are guilty of Fourth Degree Stalking when, in relevant part to his case,  you intentionally and for no legitimate purpose engage in a course of conduct directed at a specific person and know or reasonably should know your conduct is likely to cause that person to reasonably fear that her employment is threatened and your conduct consists of initiating communication at the complainant’s place of employment or business.

Examining both the PL 120.45 statute and the allegations as contained in this accusatory instrument, aka, criminal court complaint / information, the Court concluded that one’s work email is not the same as one’s place of business. “Law provisions are to be construed ‘according to the fair import of their terms to promote justice and effect the objects of the law.’ Penal Law §5.00. It would be contrary to the required method of statutory interpretation to find that a person’s work email address is her ‘place of employment or business.'” Citing cases in other context which address what constitutes a place of business, the Court concluded that an email address and work place are not one in the same.  This is true for other court decisions dealing with other statutes in the civil realm as well. Without further instruction by the legislature, “‘place of employment’ and ‘place of business’ refer only to a physical location.”

It is worth noting that this decision has limited value from a practical sense. While the Court dismissed the charge of New York Penal Law 120.45(3), the Court was also very clear that New York Penal Law 120.45(3)  would be a viable offense. According to the Court:

“[I]ncluding an email address within the purview of the phrase a “‘place of employment or business’ does not specifically further either justice or the statute’s goals. The conduct of repeatedly emailing a person with no legitimate purpose other than to cause her emotional harm is completely subsumed within the conduct specified in §120.45(2), which covers ‘telephoning or initiating communication or contact with’ the victim, including contact by email, irrespective of whether the email is sent to a personal or a work email address.” In other words, the prosecutor could have merely charged a different subsection of Fourth Degree Stalking. All that work for nothing…

To educate yourself about New York crimes such as Stalking, Crimes of Harassment and Fear, Orders of Protection (Family Court), and NY Domestic Violence crimes (including Criminal Court Order of Protection), review this blog and the links found contained in this entry and below.

Saland Law PC is a New York criminal defense law practice representing clients accused of criminal offenses throughout New York City, Westchester, Rockland, and Putnam Counties. The founding New York criminal defense attorneys at Saland Law PC trained and served as Manhattan prosecutors prior to establishing the criminal defense firm.

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