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.
- It was done for one of the following prohibited reasons:
- It was done for amusement, entertainment, profit, to degrade or abuse,
sexual arousal, sexual gratification, done without knowledge or consent
- It was done by you or someone acting on your behalf
-
It was done to secretly view something prohibited
- Dressing or undressing
- Sexual or intimate parts
- Under clothing (such as upskirt)
- Sexual conduct
-
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.