NY Unlawful Surveillance Charges

What is New York Unlawful Surveillance?

NY Unlawful Surveillance charges involve secretly viewing, recording, or broadcasting a person’s intimate or sexual body parts, in an area where the person has a reasonable expectation of privacy and without the person’s consent. Prosecutors are able to criminally charge a wide range of conduct under these charges including:

  • Installing a secret camera in a clothing store dressing room and recording women changing;
  • Buying a nanny cam and leaving it in the bathroom of an Air B&B while the residence is rented out to a guest;
  • Putting a video recording device in your bag and recording women as they walk up the subways stairs (commonly called “up-skirting”);

New York has two different Unlawful Surveillance charges, which are codified in Article 250 of the New York Penal Law. Article 250 of the New York Penal Law contains privacy offenses. It was passed in 1965 and substantially amended in 1988.

The two New York Unlawful Surveillance charges are:

The difference between these two charges is explained below.

What is the Difference Between NY Unlawful Surveillance in the First Degree and NY Unlawful Surveillance in the Second Degree?

NY Unlawful Surveillance in the First Degree (PL 250.50)

NY Unlawful Surveillance in the First Degree requires that an individual commits Unlawful Surveillance in the Second Degree, while having a prior conviction for Unlawful Surveillance in the First or in the Second Degree in the past ten (10) years. Specifically, New York Penal Law Section 250.50 states:

"A person is guilty of unlawful surveillance in the first degree when he or she commits the crime of unlawful surveillance in the second degree and has been previously convicted within the past ten years of unlawful surveillance in the first or second degree."

NY Unlawful Surveillance in the Second Degree (PL 250.45) 

Under New York Penal Law 250.45, a person is guilty of Unlawful Surveillance in the Second Degree when for his/her own amusement, entertainment or profit, for own sexual arousal or sexual gratification, or for the purpose of degrading or abusing another person, he or she:

  1. Intentionally uses or installs, or permits installation of an imaging device to secretly view, record, or broadcast a person dressing or undressing, or view the person’s intimate or sexual parts in a place when such person has a reasonable expectation of privacy, and without the person’s knowledge or consent; OR
  2. For no legitimate purpose, intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent; OR
  3. Intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of another person, without the person’s knowledge or consent; OR
  4. Intentionally uses, installs or permits the use or installation of an imaging device to surreptitiously view, broadcast, or record a person in an identifiable manner when the person is:
    1. Engaging in sexual conduct, which includes sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact; OR
    2. In the same image with the sexual or intimate part of any other person; OR
    3. Videotaped at a place and time when such person has a reasonable expectation of privacy, and without such person’s knowledge or consent.

When Does a Person Have a Reasonable Expectation of Privacy?

Reasonable expectation of privacy exists in a time and place where a person can fully disrobe with the expectation of privacy.

What Are Imaging Devices As That Term Is Used in New York Unlawful Surveillance Charges?

Imaging devices include mechanical and digital cameras, as well as other devices that can record, store, or transmit images. In 2007, New York expressly added “cellular phones” to the definition of “imaging devices.” It is anticipated that with technological developments, more devices will be expressly added to the “imaging devices” definition.

What Exactly Are Sexual or Intimate Parts?

The definition of “sexual or other intimate parts” comes from New York Penal Law Section 250.40(3). This term means “human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple.” It also includes such part or parts which are covered only by an undergarment.

What Legal Presumptions Are Applicable to NY Unlawful Surveillance Charges?

There is a legal rebuttable presumption that when a person uses, installs or permits the utilization or installation of a video device in:

  • A bedroom,
  • Changing room,
  • Fitting room,
  • Restroom,
  • Toilet,
  • Bathroom,
  • Washroom,
  • Shower,
  • Any room assigned to guests or patrons in a hotel, motel or inn.

there is a rebuttable presumption that such person did so for no legitimate purpose. That means that solely based on installing, using, or permitting to be used or installed a video camera in these areas, it is presumed that the person had no legitimate purpose to install the video device. The presumption, however, is rebuttable and that means that the defense is able to present evidence showing that the installation was for a legitimate purpose.

What are the Penalties for NY Unlawful Surveillance Charges?

Both New York Unlawful Surveillance charges are felonies. As such, both charges are punishable by over a year in prison.

Unlawful Surveillance in the First Degree

New York Unlawful Surveillance in the First Degree is a Class “D” Non-Violent Felony. As such, this charge is punishable by:

  • Indeterminate Jail Term of 2 to 7 years;
  • Determinate jail term of 1 year or less if there are mitigating circumstances;
  • Probation (3,4 or 5 years in duration);
  • Split Sentence (up to 6 months jail, rest of time on probation).

Unlawful Surveillance in the Second Degree

New York Unlawful Surveillance in the Second Degree is a Class “E” Non-Violent felony. As such, this Unlawful Surveillance charge is punishable by:

  • Indeterminate Jail Term of 1 1/3 to 4 years;
  • Probation (3,4 or 5 years in duration);
  • Split Sentence (up to 6 months jail, rest of time on probation);
  • Conditional Discharge (conditions being imposed by the court – such as leading a law abiding life, no new arrests, completion of community service or counseling).

Is NY Unlawful Surveillance Charge Subject to SORA Registration?

Yes, some Unlawful Surveillance charges are subject to Sex Offender Registration Act (“SORA”) registration. Specifically, the following New York Unlawful Surveillance charges are subject to SORA:

  • Unlawful Surveillance in the First Degree (PL 250.50)
  • Unlawful Surveillance in the Second Degree (PL 250.45(2))
  • Unlawful Surveillance in the Second Degree (PL 250.45(3))
  • Unlawful Surveillance in the Second Degree (PL 250.45(4))

All convictions for Unlawful Surveillance in the First Degree charges are subject to SORA. However, only certain subsections of Unlawful Surveillance in the Second Degree are subject to SORA Registration.

The NY Unlawful Surveillance in the Second Degree Charges, which are subject to SORA Registration relate to (1) secretly recording individual’s sexual or intimate body parts in a area where they have a reasonable expectation of privacy – such as bedroom, hotel room, restroom, changing room or (2) using a secret device to record under another person’s clothing. Importantly, the sentencing judge has some discretion whether to impose SORA Registration on the Unlawful Surveillance in the Second Degree charges. If the sentencing judge determines that SORA Registration will be unduly burdensome, the judge does not have to order it in Unlawful Surveillance in the Second Degree charges. However, the judge does not have this discretion for Unlawful Surveillance in the First Degree charges.

What Other Charges Can I Be Prosecuted For In Addition to NY Unlawful Surveillance?

New York recently passed two new criminal statutes called:

  • Dissemination of Unlawful Surveillance Image in the First Degree, AND
  • Dissemination of Unlawful Surveillance Image in the Second Degree.

These charges prohibits the sharing or distribution of an image or video obtained through unlawful surveillance. This charges apply even if the person who is sharing the image was not the one who obtained it through unlawful surveillance. So long as they knew how the image was obtained.

What Are The Elements of Unlawful Dissemination of Unlawful Surveillance Image?

Dissemination Of An Unlawful Surveillance Image in the Second Degree (PL 250.55)

Under New York Law, a person is guilty of dissemination of an Unlawful Surveillance Image in the Second Degree when s/he:

  1. With knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained, AND
  2. Such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, as defined, respectively, in sections 250.50 or 250.45 of New York Penal Law,
  3. Intentionally disseminates such image or images.
Dissemination of Unlawful Surveillance Image in the First Degree (PL 250.60)

This charge has three different sub-divisions. The prosecutor must prove beyond a reasonable doubt that the individual:

  1. First, with knowledge how these images were obtained, the person sells or publishes these unlawful surveillance images; OR
  2. Second, having created these unlawful surveillance images, or acting like an accomplice in obtaining these unlawful surveillance images, the individual intentionally disseminates such unlawfully obtained images; OR
  3. Third, a person must commit Dissemination of Unlawful Surveillance Image in the First Degree, AND the individual has previously been convicted of Unlawful Surveillance in the First Degree or in the Second Degree in the past 10 years.

What Are the Penalties for Dissemination of Unlawful Surveillance Image?

Dissemination of an Unlawful Surveillance Image in the Second Degree

Dissemination of an Unlawful Surveillance Image in the Second Degree is a Class “A” Misdemeanor. As such, this particular charge is punishable by:

  • Up to 1 year in prison;
  • Probation (up to 3 years);
  • Conditional discharge (with conditions imposed by the Courts – such as no new arrests, attendance of a program, completion of community service, abiding by the terms of the order of protection);
  • Unconditional discharge (no conditions imposed as part of the plea)
  • Time Served (even if it’s minimal)
Dissemination of an Unlawful Surveillance Image in the First Degree

Dissemination of Unlawful Surveillance Image in the First Degree is a Class “E” Non-violent felony. As such, this New York charge is punishable by:

  • Up to 1 1/3 to 4 years in prison (this is called an indeterminate sentence);
  • A determinate prison sentence of 1 year of less;
  • A split sentence (up to 6 months in prison, rest of the remaining time on probation);
  • Probation (3,4 or 5 years in duration); OR
  • A conditional discharge (with conditions that you have to complete set by the Court in consultation with the prosecutor).

Is Dissemination of Unlawful Surveillance Image Subject to SORA?

The charges of Dissemination of Unlawful Surveillance Image in the First Degree or in the Second Degree are not subject to SORA. Thus, when negotiating a plea, this charge is a better alternative than NY Unlawful Surveillance charges because it is not subject to SORA Registration.

Are There Any Exceptions to NY Unlawful Surveillance or Dissemination of Unlawful Surveillance Image?

Under New York law, there are several exceptions which apply to the prosecutions for Unlawful Surveillance in the First or Second Degree or Dissemination of Unlawful Surveillance Image in the First or Second Degree. Specifically, these exceptions are:

  • When a security system is in place, and has a conspicuously posted warning sign about video monitoring and recording;
  • When video surveillance are clearly visible and immediately obvious;
  • When law enforcement personnel is performing their authorized duties;
  • When a person merely provides access to a network and is not a co-conspirator to the crime.

Contact Top Rated Unlawful Surveillance Criminal Defense Attorneys

If you or a loved one have been arrested and charged with Unlawful Surveillance in New York, you need experienced criminal defense attorneys by your side. Contact us today to schedule your initial consultation.