Unlawful Surveillance - New York City Criminal Defense Attorney

Over the years, cameras have gotten smaller and more common allowing them to be hidden in places you’d never expect. Cameras can be hidden in things that look like alarm clocks, tissue boxes, books, or other everyday objects. They can also be hidden in plain sight in dark corners, closets, or as a cellphone which is secretly recording while resting on a table. Security cameras have become more common and so we’ve also become desensitized to it. Thirty years ago, it may have seemed strange to see a security camera recording in someone’s home but now you see it so much, it has become less remarkable. Because of this technological change, it has become easier and easier to secretly record people. Electronically recording someone is sometimes called surveillance. New York responded to this by making it against the law to electronically view, record, or broadcast someone under certain circumstances under Unlawful surveillance in the second degree, P.L. 250.45 and first degree (for prior conviction) P.L. 250.50

Unlawful surveillance is, generally, defined as when someone uses an imaging device to secretly view, broadcast, or record another person’s sexual or other intimate parts, or while they are in a bedroom, changing room, bathroom, or room in a motel, or under their clothing without that person’s knowledge or consent.

Arrested for this? You need help. If you or a loved one has been charged with unlawful surveillance in New York, you should keep a few things in mind. First, this is a felony. There is no misdemeanor unlawful surveillance. Second, it carries up to 4 years in prison and mandatory sex offender registration. Third, there is a lot of pressure on prosecutors to aggressively pursue these cases. Many of our clients are deeply ashamed to find themselves in this situation and, as a result, may hesitated to reach out. This is a mistake. We can help by exploring ways that our clients never imagined to get their case successfully resolved under their unique circumstances but only if they contact us.

Basic elements of unlawful surveillance.

  1. It was done for one of the following prohibited reasons:
  2. It was done for amusement, entertainment, profit, to degrade or abuse, sexual arousal, sexual gratification, done without knowledge or consent
  3. It was done by you or someone acting on your behalf
  4. It was done to secretly view something prohibited
    • Dressing or undressing
    • Sexual or intimate parts
    • Under clothing (such as upskirt)
    • Sexual conduct
  5. It was done to view the inside of a protected place
    • Bedroom
    • Changing/fitting room
    • Bathroom
    • Hotel guest-room

Intent. If you’ve been arrested for unlawful surveillance, the government must prove that the recording was intentional and of something that is prohibited or protected.

Examples of unlawful surveillance.

Example 1. Upskirt. John Doe is walking up a flight of stairs in a busy subway station in New York City. A young woman wearing a skirt is walking up the same flight of stairs and is directly in front of John. John takes out his smart-phone, opens the camera app, switches to the front facing camera, points the camera at under her skirt and presses the record button. This is seen by an undercover police officer who stops John and arrests him for unlawful surveillance. In court, the prosecutor may charge John with Unlawful surveillance in the second degree for intentionally using an imaging device (a smart-phone) to secretly record under the young woman’s skirt.

Example 2. Upskirt. John Doe is walking up a flight of stairs in a busy subway station in Manhattan. A young woman wearing a skirt is walking up the same flight of stairs, directly in front of John. John takes out his smart-phone, opens the camera app, and opens a photo he wants to look at while he walks up the stairs. This is seen by an undercover detective who stops John and arrests him or unlawful surveillance. In court, the prosecutor will probably charge John with unlawful surveillance for intentionally using an imaging device (his smart-phone) to secretly record under the young woman’s skirt. So, this is the same as example 1 so far but the difference is that this time, John was not trying to record up her skirt. He was just using his phone for innocent reasons as he walked up the stairs. Given how similar this would look to an undercover officer viewing it at a distance, John could still end up being arrested.

Example 3. Shower. Jane (fictitious person) leaves her cellphone inside a bathroom. It is pointed at a shower stall and moments later, a young man comes in and takes a shower completely unaware that the phone is live-streaming him until he notices it as he is getting dressed. He complains to the police and Jane is arrested for unlawful surveillance. In this situation, Jane could be charged for secretly broadcasting the young man inside a shower (a protected place) and for secretly broadcasting images of his sexual parts.

Example 4. Sexual encounter. John (fictitious person) is meeting Jane for a date at a restaurant near his apartment in Manhattan. After dinner, they go back to his apartment and one thing leads to another. They go to John’s bedroom and have sex. Unbeknown to Jane, John is secretly filming them having sex. Jane finally finds out when she sees video from the encounter online. She complains to the police and John can be arrested for unlawful surveillance because he intentionally used an imaging device to secretly record her intimate parts and because he secretly recorded sexual conduct.

The law.

Unlawful surveillance in the second degree generally prohibits secret video recording as outlined above. It is a class E felony. In New York, unlawful surveillance is serious because it's a felony and conviction requires, among other things, sex offender registration. There are several notable things about this law. First, you can be charged even if you didn't personally install a recording device so long as it's installation happened at your direction. Second, it applies to video/images. Not audio. Third, the title makes it sound like it targets people putting secret cameras in bathrooms but it can be violated by using your smart-phone to take a photo of someone's intimate areas (such as upskirting). Finally, it could be violated by a nanny-cams or other common indoor recording.

Unlawful surveillance in the first degree is violated when you commit unlawful surveillance in the second degree and you've previously committed unlawful surveillance in the second degree. It carries a longer prison sentence and mandatory state prison.

Penalties.

Unlawful Surveillance in the Second-Degree Penalties

  • Up to 4 years in prison
  • A combination of jail and probation
  • Probation
  • Mandatory sex offender registration (SORA)
  • Criminal record, employment/immigration consequences
  • A fine of up to $5,000 or double the gain from the crime

Unlawful surveillance in the first-degree penalties (as a predicate felon)

  • Up to 7 years in prison but a minimum of 2 years
  • Mandatory prison
  • Mandatory sex offender registration (SORA)
  • Criminal record, employment/immigration consequences

How we can help.

If you or a loved one has been charged with unlawful surveillance, we can take action to defend you and protect your rights. Most criminal cases do not go to trial. The ones that do go to trial only after a long and careful process designed to explore the nature and strength of the evidence against you. The fist part of our process is to explore every possible way to get the charges completely dismissed. This can be done if the police or prosecutor made a mistake when filing documents, turning over discovery, or using improper sources of evidence. If the case cannot be quickly dismissed on a technically, we look to see if we can develop an argument to get the case dismissed down the road. At the same time, we can explore options to get your charges reduced. In fighting for the best outcome possible, we obtain and carefully review the police report, complaint, police logs, video (such as NYPD body camera footage), 911 calls, any statements made by you or the witnesses, District Attorney reports, and other places were the facts of your case were documented.

If you or a loved-one has been (or will be) arrested for unlawful surveillance in New York,contact us today for a unlawful surveillance case evaluation today.

Unlawful surveillance, like all other felonies, must go through a special process in court that is often completed within days or weeks of the arrest. Once this happens, the risk of severe penalties and consequences increases. By taking immediate action, it might be possible to work your way to a better outcome.

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