With the advent of smartphones – which arm practically every citizen with a readily available high-definition camera – Unlawful Surveillance has become an incredibly common charge in New York, especially in the populated City. In a nutshell, the charge applies when someone inappropriately records, views or broadcasts another without their consent. And it’s a serious one.
Those who are accused of using cameras of any kind to record into dressing rooms, for example, are generally charged under Penal Law Section 250.45(1) and/or 250.45(2), which applies where a defendant surreptitiously views, broadcasts or records a person dressing or undressing, or the sexual or other intimate parts of a person when such person expects to be in private.
Those who surreptitiously view, broadcast or record someone in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, or shower, among other places, are charged under PL 250.45(3)(a).
Finally, PL 250.45(4) applies to those who surreptitiously view, broadcast or record “under the clothing being worn by” another person.
Those who commit any of the above offenses and who have been previously convicted within the past ten years of Unlawful Surveillance in the First or Second Degree are charged with First Degree Unlawful Surveillance, an even more serious felony.
Charges brought under any theory of Unlawful Surveillance are extremely serious, punishable as felonies with the potential for incarceration in state prison. Furthermore, some subject a defendant to either a 20-year or even lifetime term of registration as a sex offender.
So, which unlawful surveillance convictions are registrable in New York under the Sex Offender Registration Act and which are not?
The answer: convictions under subsections (2), (3)(a) and (4) do subject a defendant to SORA, whereas a conviction under subsection (1) – which applies where a defendant engages in such conduct for “his or her own amusement, entertainment, or profit, or for the purpose of degrading or abusing a person.” – does not.
Which Subsections of Unlawful Surveillance in the Second Degree Are Registrable?:
PL250.45(1) – no SORA registration.
PL 250.45(2) – SORA imposed, unless unduly harsh and inappropriate.
PL 250.45(3)(a) – SORA imposed, unless unduly harsh and inappropriate.
PL 250.45(4) – SORA imposed, unless unduly harsh and inappropriate.
As you can see, a conviction under subsection (1) will not expose a defendant to SORA whereas the remaining three subsections will – UNLESS “the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that registration would be unduly harsh and inappropriate.” See Correction Law 168-a(2)(e).
So, how does a defendant go about convincing the trial court (meaning the Judge) to agree that SORA would be “unduly harsh and inappropriate?”
Well, Correction law 168-a(2)(e) requires a defense attorney file a motion setting forth the reasons why registration would indeed be unduly harsh and inappropriate in that particular case. Such a motion is generally filed after conviction (by jury or by plea) and prior to sentencing. It should be noted that Judges are generally inclined to deny these motions, but they can be won. The difference between winning and losing can be the difference between no registration and 20-year/ lifetime registration as a sex offender – so the stakes are indeed high.
Recently, firm partner Eric Arnone did prevail on such a motion in New York County Supreme Court on behalf of a young client with no previous criminal history. The client was charged under PL 250.45(4), and entered into a plea deal with prosecutors whereby he was able to avoid imprisonment. The only remaining issue was whether this young client would be required to register under SORA for, most likely, the next 20 years of his life. Luckily for the client, Mr. Arnone was able to convince both the prosecuting attorney and his supervisors – as well as the Supreme Court judge presiding over the case – that SORA would in fact be unduly harsh and inappropriate – a veritable rarity for most defendants faced with such a serious charge. (Mr. Arnone was also able to convince the Judge to grant a Certificate of Relief from Civil Disabilities, which was huge for the client).
What are the odds you will be required to register if you’ve been charged under subsections 2-4? At the end of the day every case is different, but the Court must be informed of your otherwise good character, the extent of your previous contacts with the criminal justice system, and a showing made that your risk of reoffending is minimal – in the form of a formal motion filed in Court. This requires an attorney to get to know you and prepare a convincing motion on your behalf. The other critical component of he motion must address the specific facts of the case.
In the case of Mr. Arnone’s recent client, the prosecution alleged that the defendant was in possession of over a hundred additional images on his recording device for which he could have been indicted for over a hundred additional counts. Because the defendant was shown to be an otherwise good person who accepted responsibility for his conduct and took steps to rehabilitate himself, the prosecution backed off pursuing additional charges and allowed the defendant to proceed to sentencing solely on one count. This, coupled with the defendant’s otherwise strong character, won the day.
While every case is different, an experienced attorney should do everything in his or her power to portray the client as a person first, and a defendant second. This especially is where a convincing motion needs to be worked on. While these motions are tough to win, we’ve shown they certainly can be won.
If you or a loved one faces charges for Unlawful Surveillance, contact an experienced defense attorney immediately. Our team of former prosecutors are always ready to help our next client.