Stalking in the Fourth Degree: New York Penal Law 120.45 & “Reasonable Fear”

Any crime or offense in New York where violence is perceived or carried out is a serious offense. Experienced New York criminal defense lawyers who handle violent felonies and misdemeanors often represent clients in Criminal Possession of a Weapon and Assault cases. Not seen as often, but potentially as serious, is the crime of Stalking. Briefly, Stalking in New York ranges from a “B” misdemeanor (New York Penal Law 120.45) punishable by up to 90 days jail to a “D” felony (New York Penal Law 120.60) punishable by up to seven years in prison. Between these two crimes are Stalking in the Third Degree (New York Penal Law 120.50) and Stalking in the Second Degree (New York Penal Law 120.55). The following entry will define and address Stalking in the Fourth Degree as it relates to “reasonable fear.” Although addressing “reasonable fear” in the context of Stalking in the Fourth Degree, this entry is relevant to the other degrees as well.

Generally, one is guilty of Stalking in the Fourth Degree when one intentionally and without a legitimate purpose, engages in a course of conduct directed towards an individual person and knows, or reasonably should know, that his or her actions:

(1) is likely to cause reasonable fear of real harm to that person’s safety or health (or to that of a third person); or

(2) actually causes material harm to the mental or emotional health of the person through the use of a telephone or initiating communications; or

(3) is likely to cause such person to reasonably fear that their employment or business is threatened when the “stalker” appears or calls the place of business and has been clearly informed to stop.

As noted above, assuming each and every other element is met under the first subsection, one’s conduct must still cause “reasonable fear” in the complainant. Addressing this issue, a Manhattan Criminal Court judge recently dismissed a charge of Stalking in the Fourth Degree where the other elements of the crime where met, but prosecutors failed to establish a “reasonable fear” in the complainant.
In People v. Lewis, 2010NY003076, the defendant was alleged to have stated: YOU THINK YOU’D BE NICER TO ME IF YOU WANTED ME TO TAKE CARE OF YOUR THINGS. Moreover, the defendant allegedly had moved the complainants property on numerous occasions, grabbed the complainant’s arm and blocked the complainant from leaving or entering a room. Despite this conduct, the Court found that the “reasonable fear” standard had not been met.

According to the Court:

“…[T]he accusatory instrument fails to establish the third element of the crime, that she engaged in her course of conduct knowing or having reason to know that such conduct: was ‘likely to cause reasonable fear of material harm to the physical health, safety or property’ of the complainant (emphasis added). See PL §15.05(1);CJI[NY2d] PL §120.45. Certainly, the accusatory instrument alleges that the complainant’s reaction to the defendant’s conduct caused the complainant to fear for her physical safety and that of her possessions and to lose sleep as a result. However, given the relatively mild though hostile conduct depicted in the accusatory instrument, it would be unreasonable to conclude that the defendant was, or should have been, aware that her actions would have such an impact. This is because such fears would not be reasonable under the circumstances alleged. Although the defendant is said to have closed the door in the complainant’s face repeatedly, the complainant is not alleged to have been injured and the door is not alleged to have been damaged from these actions.”

Although this particular court dismissed the charge of Stalking in the Fourth Degree as facially insufficient, no bright line rule was established. Obviously, if you are alleged to have committed this crime, the facts and the complaint against you must be vetted to see whether the prosecution has met their burden.

For further information on the criminal laws of New York, cases that address the Penal Code and recent newsworthy cases, please review this blog or the Saland Law PC website.

Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal defense lawyers at Saland Law PC represent clients from investigation through trial in the New York City region.

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