Unlawful Surveillance: NY Penal Law 250.45 and 250.50

In today’s technologically advanced world mixing a volatile cocktail of social media with instant gratification, there are few crimes in New York that have stirred up as much controversy and concern to both accuser and accused as Unlawful Surveillance pursuant to New York Penal Law 250.45 and New York Penal Law 250.40. Class “E” and “D” felonies respectively, Second Degree Unlawful Surveillance and First Degree Unlawful Surveillance are not merely punishable by as much as four or seven years in prison respectively, but if you are convicted of these crimes you may end up being required to register as a sex offender under New York’s Sex Offender Registration Act (SORA). Simply, while you may be a college student, Wall Streeter, bartender, teacher, doctor, electrician, engineer or anything in between, the consequences of and for an Unlawful Surveillance arrest and conviction in New York is as serious as just about any other crime found in the New York Penal Law.

Unlawful Surveillance: What it is and What it is not

Let’s start off by first addressing what NY Penal Law 250.45 and 250.50 are not. These crimes are neither funny nor cute. “Up skirting” is a violation of a person’s personal space and privacy. Prosecutors will not chuckle when they ask for bail at your felony arraignment and judges will not laugh when they consider setting bail keeping you behind bars as your criminal case progresses. Certainly, there will be no smiles on your face when your family or friends are securing bail money to free you from the Tombs. Yes, Unlawful Surveillance is a serious offense.

Setting up a cam or recording device whether it’s on your mobile phone, buried in a clock or disguised as something else to record women having sex, using the bathroom or changing clothes is simply not acceptable. No, you do not need a criminal defense attorney to tell you as much, nor do you need your lawyer to pat you on the back and tell you it’s OK. What you need now is to understand the elements of the crime, whether you in fact violated the offense of Unlawful Surveillance, what your defenses may be, and how you and your counsel can either beat the case in its totality or limit your direct and collateral exposure.

Unlawful Surveillance: The Elements of the Crime

As a preliminary matter, you are guilty of Second Degree Unlawful Surveillance when for your own amusement, entertainment or profit, or for abusing or degrading the target of your alleged crime, you intentionally use or install some device to surreptitiously view, broadcast or record that person dressing, undressing, or the sexual or other intimate parts of their body. This must be done at a place and time when this person has a reasonable expectation of privacy and obviously without their knowledge or permission.

A second theory of PL 250.45 differs from the above elements but is the same crime with the same consequences. Here, the purpose is not merely for entertainment, for example, but for your own sexual arousal or gratification and, as always, without their knowledge or consent.

An additional subsection of Unlawful Surveillance in the Second Degree breaks the crime down further where for no legitimate purpose you intentionally install or use this recording device for use in your target’s bedroom, changing room, bathroom, shower, or similar area without their consent. If you are accused of this particular subsection, it is of critical import to recognize that the law establishes a presumption (that is rebuttable) allowing the finder of fact to assume that you installed or used this device for no legitimate purpose.

Often relied upon by prosecutors in New York City and throughout the State of New York, Unlawful Surveillance also includes the intentional use and installation of an imaging device to view or record the sexual or intimate parts of that person under his or her clothing. This is what often correlates to “up skirt” videos. Again, while it should be clear, an element of this and each section is that it was done so without the victims consent or awareness.

The last potential theory of Second Degree Unlawful Surveillance involves recording or installing a device for your own amusement, profit, or sexual arousal to intentionally record a person in an identifiable manner engaging in sexual conduct in the same image with the sexual or intimate part of another person and at a place and time that person has a reasonable expectation of privacy and without their consent or knowledge.

The gender of the accuser and accused are of no consequences.

Direct and Collateral Consequences to an Unlawful Surveillance Conviction

As noted, nobody wants a felony conviction and a loss of rights we all take for granted. There is not one person who would tell you that a felony conviction has not hampered, if not destroyed, their careers and families. Embarrassment and shame aside, up to four years in prison as a first time offender is simply frightening. Even a reduction to a misdemeanor from PL 250.45 to an attempted offense is still a criminal conviction. Add SORA registration to the mix, the life you though you would lead is by no means the one you will after the judge slams down the gavel.

Beyond the obvious consequences to your family name and liberty, if you are not an American citizen, regulated by FINRA, overseen by the Department of Education, or you merely have a license or certification as a doctor, nurse, lawyer, architect, CPA or any other professional, you may be answering to these charges upon arrest and will absolutely be mandated to do so if you are convicted.

• NY Arrests and Convictions: Immigration Consequences
• Doctors, Nurses and Other Medical Professionals: NY Arrests and Licensure
• NY College and University Arrests: Title IX Disciplinary Hearings
• NYC Employee Arrests: Direct and Collateral Consequences

Merely because you may be a college student will not free you from the collateral ramifications of your alleged actions. In fact, in the event this offense involves a fellow student at NYU, Columbia, Purchase, Pace, St. John’s Fordham, CUNY or any other college or university in New York City or State, the accuser can also commence a Title IX action whereby the college or university can ultimately expel you with even the most minimal evidence even if you are exonerated in the criminal court.

Your First Steps are Critical: Identifying and Implementing a Defense

Whether the NYPD or any other police agency arrests you shortly after the allegations occurred or days or weeks later, know that if law enforcement is doing their job they will secure your devices including your mobile phone and computers to execute search warrants. Whatever evidence is on your “computer” will be used against you. Additionally, any statement you make will also be used against you in a criminal proceeding. An apology may be no different than any other admission. Think before you speak if you utter any words at all.

At bottom, if at all possible, get yourself prepared for what may by inevitable. Retain counsel to protect your rights and advise you as to the next steps to help yourself. Is there any independent evidence? Proof of consent? Corroboration that you never made a recording nor installed a device to do so? What bail arguments can be made if an arrest cannot be avoided? Who are you and why should a prosecutor and judge give you any leeway and consideration? Share all of this with your attorney as soon as you are able.

An arrest and conviction for Second Degree Unlawful Surveillance or First Degree Unlawful Surveillance is indelible and life altering. Whether true or not, you need to fight for your future. The New York criminal lawyers and former prosecutors at Saland Law will use their experience, knowledge and advocacy to not merely guide you through the criminal justice system, but put you in the best place to have a life and future long after your case is closed.

Do not compound your unfortunate predicament. Get the help you need and secure it now.

Call the New York criminal lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.