Don’t Take That Picture!! Understanding NY PL 250.45 & Unlawful Surveillance

In its most common form, Unlawful Surveillance in New York City (or just about anywhere), usually rears its head as a building superintendent putting a camera in the bathroom or a store employee setting up a video recording system in an area where people change. Having said that, an arrest for Unlawful Surveillance need not be in such places. Even lesser conduct and video recording can result in a criminal charge. In fact, one has to look no further than the arrest of Adam Levinson, a urology professor at New York’s prestigious Mount Sinai Hospital’s school of medicine. It is alleged that Dr. Levinson used a pen camera to peak up strapphangers’ skirts that traveled the labyrinth of subway passages in New York’s subterranean underground. Although this was not a stationary video camera placed in a vent or disguised as a clock, Levinson’s alleged technique is no less criminal.

According to reports, Dr. Levinson was initially held on $15,000 bond (no, not the James variety even with an otherwise nifty spy camera). Because the accusation is that he was attempting to or actually taking pictures up women’s skirts, prosecutors are charging Dr. Levinson with the “E” felony offense of Unlawful Surveillance in the Second Degree. New York Penal Law 250.45(2) is committed when a person, for his (usually) or her own sexual arousal or for the sexual gratification of another, intentionally uses or installs (or allows the same) an imaging device. Further, that person must surreptitiously view or record his or her target dressing or undressing. Alternatively, this viewing or recording must be of the sexual or intimate parts of that person in a place and time when that person reasonably believes he or she is entitled to privacy. Lastly, the target or victim must either have no knowledge of the surveillance or not give consent.

Briefly, some of the terms above are defined by law. Intimate or sexual parts are such terms. In the event Dr. Levinson attempted to film his alleged victims’ vaginas, as opposed to their ankles or shins, this element would be satisfied. Beyond this element, prosecutors must also prove beyond a reasonable doubt that a subway car is a location where one has a reasonable expectation of privacy (a bathroom or changing room would likely be such a place) and that there was no consent from the complainants to allow this filming. As provided above, other elements must be proven as well.

Should Dr. Levinson or anyone charged with Second Degree Unlawful Surveillance, be convicted of this crime, they would face up to one and one third to four years in prison. In the event that person had a prior felony conviction in the preceding ten years, the minimum incarceration would be one and one half to three years with a maximum of two to four years in prison. Making matters worse, if the prior felony conviction was also an Unlawful Surveillance the crime is raised to New York Penal Law 250.50. First Degree Unlawful Surveillance is a “D” felony and is punishable as a prior felon by a minimum of two to four years and a maximum of three and one half to seven years “upstate.”

With the advent of more disguised and smaller devices capable of high definition recordings, it is likely that these Unlawful Surveillance crimes will occur more frequently than many of us would like to acknowledge. Because of this and due to the fact that the crime by its nature violates privacy, prosecutors and judges will continue to be firm in their judgement and punishment of these crimes.

To find out more about Unlawful Surveillance, follow the highlighted links found above.

Representing clients through the region, Saland Law PC is a criminal defense firm located in downtown New York City. The New York criminal lawyers at Saland Law PC previously served as Manhattan prosecutors prior to establishing the defense firm.

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