Stalking in the Fourth Degree: New York Penal Law 120.45 and Creating a Reasonable Likelihood of Fear as Opposed to Fear Itself

Fourth Degree Stalking charges in New York are often very unique and fact-specific circumstances, which tend to give rise to a multitude of legal issues in the course of a prosecution. Prior relationships between defendants and alleged victims, unduly suggestive photo identifications, First Amendment protections, whether odd behavior truly rises to the level of criminal acts – these are just some of the issues that New York Stalking defense lawyers can find themselves confronting on behalf of a client in the context of Stalking charges. In the recent case of People v. Todd, 2017 NY Slip Op 51656(U) (2d Dept. 2017), the appellate court grappled with many of these issues.

In Todd, the complaint essentially alleged that the defendant would repeatedly come to the victim’s place of work, a McDonald’s, and make romantic and suggestive comments to her through the drive-through window, and that on at least one occasion the defendant approached her on the street and made similar comments. In order to sustain a Stalking in the Fourth Degree charge in New York, the complaint must allege that the defendant “intentionally, and for no legitimate purpose, engage[d] in a course of conduct directed at a specific person and [knew] or reasonably should [have] know[n] that such conduct . . . [was] likely to cause reasonable fear of material harm to the physical health, safety or property” of the victim (New York Penal Law 120.45 [1]). The Court of Appeals, New York’s highest court, has held that there is no need to allege or prove that the defendant intended to place the victim in fear of harm, or that the particular victim did actually have such a fear, only that an ordinary person subjected to the defendant’s conduct would reasonably be fearful. In this context, the “intent” of the defendant must be to create a reasonable likelihood of fear or harm, not necessary to cause a particular fear of harm. This is a fairly unique and tricky standard, and gives rise to many problematic issues that can arise in the course of a trial or legal arguments, especially with regard to a jury’s understanding of this standard.

New York Stalking crimes and laws vary in degree, including the class B misdemeanor of Stalking in the Fourth Degree discussed in Todd, which is punishable by up to 90 days is jail, the class A misdemeanor of Stalking in the Third Degree, which is punishable by up to one year in jail, the class E felony of Stalking in the Second Degree, punishable by up to 1-1/3 to 4 years in state’s prison, and the class D felony of Stalking in the First Degree, which is punishable by up to 7 years in state’s prison. The higher degrees of Stalking can be predicated on prior convictions for certain related offenses. Moreover, if a Stalking arrest involves a crime of Domestic Violence or is a family offense, there will likely be further scrutiny by prosecutors.

The Stalking statutes in New York are complex, difficult to fully comprehend, and cover an extremely wide range of conduct. If you are charged with Stalking in the Fourth Degree or a related offense, it is crucial that you are represented by a criminal attorney who understands the nuances of this law from a legal perspective, as well as a practical, common-sense perspective. If such a case proceeds to trial, a critical factor in that trial may be the jury’s understanding of what truly rises to the level of criminal conduct, and what does not.

Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Saland Law PC represent clients in Stalking cases throughout the New York City and Hudson Valley region.

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