NY Penal Law § 120.60: Stalking in the first degree

NY Penal Law § 120.60: Stalking in the first degree

The crime of stalking is typically thought of as the unwanted behavior of following another person, or calling, texting or emailing that person to a degree that it becomes annoying. On the contrary, stalking goes much further than merely annoying another person. At a minimum, stalking is tailing, physically or electronically tracking, calling, emailing, texting, or in some other way contacting another person seemingly obsessively and in such a way that that person comes to the belief that his or her personal safety is in peril. If, while in the process of stalking an individual, you also cuase physical injury to that person, or you commit another offense such as sexual assault, the stalking crime you would have committed is stalking in the first degree.  This is a felony offense.

You will face a stalking in the first degree charge under New York Penal Code § 120.60 if,

1. in the process of stalking someone, you end up causing the person physical injury, or
2. while stalking someone, you also commit one or more of the following crimes:  
   1. sexual misconduct, 
   2. forcible touching, 
   3. rape in the third degree, 
   4. sexual abuse in the second degree, 
   5. criminal sexual act in the third degree, 
   6. rape in the second degree, 
   7. female genital mutilation or 
   8. criminal sexual act in the second degree.

For Example

In the case of People v. Gomez, 842 N.Y.S.2d 21 (2007), defendant, Saul Gomez, was convicted of stalking in the first degree after inflicting serious physical injury to his stalking victim. While stalking his victim on one occasion, Gomez repeatedly punched his victim, which resulted in bleeding, swelling, difficulty walking and substantial pain.

Offenses that are Related

Stalking in the fourth degree: New York Penal Code § 120.45

Stalking in the third degree: New York Penal Code § 120.50

Stalking in the second degree: New York Penal Code § 120.55

Kidnapping in the second degree: New York Penal Code § 135.20

Harassment in the first degree: New York Penal Code § 240.25

Aggravated harassment in the second degree: New York Penal Code § 240.30

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Possible Defenses

A possible defense against the charge of stalking in the first degree is to demonstrate that the victim did not suffer any physical injury as defined in New York Penal Code § 120.60. It is not sufficient that the victim suffered just a slight bruise or experienced some pain. For this charge to be valid, the victim must have suffered some type of impairment of physical condition or substantial pain as a result of activity connected to the stalking. In other words, if there is no physical injury as defined by the statute, the prosecutor will have a hard time securing a stalking in the first degree conviction.

Legal Scenario: What Would You Do?

Scenario

Your ex-partner has been repeatedly following you to work, showing up at your children's school, and last week intentionally crashed their car into your parked vehicle while you were inside a store. You obtained a protective order two months ago, but the behavior has only escalated since then.

What makes this stalking in the first degree under New York law, and what kind of penalties could my ex be facing?

Attorney's Answer

Under NY Penal Law § 120.60, stalking in the first degree is a Class D felony that applies when a person commits stalking in the third degree (§ 120.50) or second degree (§ 120.55) and intentionally or recklessly causes physical injury to the victim. The fact that your ex deliberately rammed your vehicle while escalating a pattern of following and surveillance could satisfy the element of intentionally causing or recklessly creating a risk of physical injury. A Class D felony conviction carries up to seven years in state prison, and the existing order of protection violation adds additional criminal exposure. You should document every incident thoroughly and contact law enforcement immediately, as the escalation pattern strengthens both the criminal case and your ability to secure stronger protective measures.

This is general information only. Contact us for advice specific to your situation.

The Sentence

Since stalking in the first degree is categorized as a class D felony, if you are convicted, the maximum sentence is seven years in state prison and a fine of up to $5,000. It is also classified as a violent felony, meaning that you will face a sentence of at least 2 years in prison. In other words, the judge will not have the choice to sentence you to just a probation term. Moreover,as part of the criminal process, the prosecutor may request and the judge may grant an Order of Protection in favor of the victim. Simply stated, an Order of Protection (formerly referred to as a Restraining Order) is a court order requiring you to stay away from another person.