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Nassau County Domestic Violence and Stalking

N.Y. Pen. Law §§ 120.45, 120.45, 120.45 & 120.45

Domestic violence is general term used to describe an act of violence between people who are in some type of domestic relationship. For example they may be married, dating, or roommates, or they may share children. While there is specific crime in the New York criminal code that is called "domestic violence," there are several crimes that commonly involve people in domestic relationships. One such crime is stalking. In fact of all of the crimes related to domestic violence, stalking is one of the most common. Stalking can take several different forms. Oftentimes it involves you simply following the victim. It can also involve repeatedly calling, emailing or in some other way communicating with the victim after the victim has told you to stop. Stalking amounts to unwanted attention that causes the victim to feel threatened. Stalking offenses range from misdemeanors to felonies depending on the actions of the stalker. If you end up causing the victim physical injury, you will be charged with the most serious stalking offense and will face a harsh punishment. Thus, if you have been charged with stalking stemming from a domestic violence incident it is important that you immediately contact an experienced Nassau County Domestic Violence and Stalking Lawyer who will explain to you your legal rights and who will work closely with you to defend you against the charges.

Types of stalking charges

There are 4 stalking offenses in New York, 2 of which are misdemeanors and 2 of which are felonies. Stalking in the fourth degree and stalking in the third degree are misdemeanors. Stalking in the second degree and stalking in the first degree are felonies. Each stalking offense involves intentionally and repeatedly harassing another person to the extent that that person becomes alarmed and frightened.

Stalking in the fourth degree. You will face this charge if you intentionally and for no legitimate reason engage in a course of conduct directed toward a specific person such as your spouse, former spouse, girlfriend or former girlfriend. And you that that course of conduct

  • Is likely to cause the victim to be fear that you will cause him or her physical harm, or physical harm to his or her family or acquaintances
  • Is likely to cause the victim mental or emotion harm
  • Is likely to cause the victim to fear that he or she may lose his or her job.

Stalking in the fourth degree is a Class B misdemeanor. N.Y. Pen. Law § 120.45. Conduct that can amount to stalking in the fourth degree includes following, tracking using GPS, telephoning, initiating communication after being told to stop, or appearing at the victim's place of business.

Stalking in the third degree. Stalking in the third degree is similar to stalking in the fourth degree. However, stalking in the third degree requires you to:

  • Commit stalking in the fourth degree against at least 3 people on at least 3 separate occasions
  • Commit stalking in the fourth degree and previously have been convicted of a specified predicate crime against the same victim or the victim's family including sexual misconduct, rape, criminal sexual act, sexual abuse, aggravated sexual abuse, incest, assault, menacing, or harassment.
  • Harass or annoy someone in such a way that that person reasonably fear that you might cause that person physical injury, that you might commit a sex offense against that person, or that you might kidnap or kill that person.
  • Commit stalking in the fourth degree after having been convicted of stalking in the fourth degree within the prior 10 years.

Stalking in the third degree is a Class A misdemeanor. N.Y. Pen. Law § 120.50

Stalking in the second degree. Stalking in the second degree has the same elements as stalking in the third degree as well as one of the following additional elements.

  • Threatens to use a weapon such as a firearm, pistol, revolver, rifle, shotgun, machine gun, electronic dart gun, electronic stun gun, cane, sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, slingshot, slungshot, shirken, "Kung Fu Star", dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, dangerous instrument, deadly instrument or deadly weapon
  • Commits the crime of stalking in the third degree and previously have been convicted of a specified predicate crime against the same victim or member of the victim's family including sexual misconduct, rape, criminal sexual act, sexual abuse, aggravated sexual abuse, incest, assault, menacing, or harassment.
  • Commits the crime of stalking in the fourth degree and has previously been convicted of stalking in the third degree
  • If you are at least 21 and repeated follows someone under the age of 14, or repeated engages in conduct that puts someone under the age of 14 in fear of physical injury.
  • Commits the crime of stalking in the third degree against at least 10 people in at least 10 separate incidents.

Stalking in the second degree is a Class E felony. N.Y. Pen. Law § 120.55

Stalking in the first degree. You will have committed the crime of stalking in the first degree if in the course of committing the offense of stalking in the second or third degree you cause physical injury to the victim. Or, if in the course of committing the offense of stalking in the second or third degree you also commit the crime of rape in the third degree, rape in the second degree, criminal sexual act in the third degree, criminal sexual act in the second degree, or female genital mutilation. Stalking in the first degree is a Class D felony. N.Y. Pen. Law § 120.60

Consequences of a stalking conviction

If you are convicted of a stalking crime, your sentence may include incarceration, a fine, restitution, probation or a combination of these punishments. Whether or not you are sent to jail depends largely on the seriousness of the crime of which you are convicted and your prior criminal record.

Prison and Fines
  • Class B misdemeanor. The maximum possible sentence is 90 days in jail and a fine of up to $500.
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000.
  • Class E felony. The maximum possible sentence is 4 years in prison and a fine of up to $5,000.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000.

The amount of prison time you receive for a felony stalking conviction will also depend on whether or not you have been convicted of any felonies within the last 10 years. It will also depend on whether your prior conviction was for a violent felony or a non-violent felony. If you have been convicted of 2 or more felonies, you will be classified as a persistent felony offender. You will be given a harsh sentence, involving a minimum of several years in prison.

Part or all of your sentence may also include probation. For stalking in the third or fourth degrees, the probation term will be 3 years, while for stalking in the second or first degrees the probation term will be for 5 years. While probation is preferable to incarceration, probation has many restrictions. There will be several rules that you will be required to follow such as:

  • You must not commit new crimes
  • You must not associate with people who you know to have criminal records
  • You must not go to unlawful or disreputable places
  • You must not use or possess controlled substances or drug paraphernalia
  • You must submit to drug testing
  • You must consent to warrantless searches
  • You must submit to home visits by your Probation Officer
  • You must regularly report to your Probation Officer
  • You must not leave the State of New York without permission
  • You must not purchase, own, or possess a gun
  • You must not consume alcohol excessively
  • You must follow a curfew
  • You must have a job or be enrolled in school

If you violate any of the terms of your probation you will have to appear before a judge at a revocation hearing. If after hearing evidence the judge concludes that you are in violation the judge could send you to prison. Whether or not the judge sends you to prison will largely depend on whether the violation was major or minor.

In addition to being sent to prison, as part of your sentence the judge may order you to pay fines, fees, and restitution. For felony stalking the fine would be up to $5,000, while for a misdemeanor stalking offense the fine would be up to $1,000. Fees include a "mandatory surcharge" of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes probation or post-release supervision you will be required to pay a monthly supervision fee of $30. The amount of restitution you may be ordered to pay will be based on the losses suffered by the victim such as medical bills. Generally, the maximum amount of restitution is $15,000 for a felony and $10,000 for a misdemeanor. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

Failure to pay a fine, fee or restitution may result in you being charged with yet another crime that could mean a year in prison. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Orders of Protection

Domestic violence stalking cases almost always involve the criminal court judge issuing an Order of Protection in favor of the victim. The court will likely issue a temporary Order of Protection that may be a "stay away" Order of Protection, "refrain from" Order of Protection or a combination of both. If an Order of Protection is a stay away order, then you must not have any type of contact with that person. This means that you must:

  • Not have any physical contact with the victim, even if the victim is your spouse, girlfriend, or parent of your child
  • Stay away from the person's home, school or place of business
  • Not call the person
  • Not email or fax that person
  • Not send that person letters
  • Not send the person messages through other people
  • Not send the person gifts or flowers

If there is a refrain from Order of Protection, then you are prohibited from harassing, intimidating, threatening or otherwise interfering with that person. While a criminal court Order of Protection that is issued at the beginning of a criminal case is generally temporary, depending on the outcome of the case, a temporary Order of Protection may become final or permanent-- meaning that it will remain in effect for several years. It the court concludes that there is no basis for the Order of Protection, it will be dismissed. If you believe that there is no basis for the order, you can fight it.

However, if an Order of Protection is in place and you violate it, you risk being charged with criminal contempt, a misdemeanor. As punishment you could be sentenced to jail or probation.

Additional criminal charges

Beware that if you are arrested for stalking you may face additional criminal charges. Charges which commonly accompany stalking charges include assault, sexual assault, and reckless endangerment. Any additional charges could result in convictions for additional crimes. This would greatly impact the severity of your sentence.

Long-Term Consequences

Being convicted of a felony stalking will result in you having a criminal record. While your prison sentence, probation term will all end, and you will be able to pay off your financial obligations, a criminal record will remain with you for the rest of your life. Here are a few ways that having a criminal record will impact your life:

  • Difficulty in finding a job, as many employers will resist hiring someone with a violent criminal past
  • Barred from certain professions such as teaching, practicing law, driving a taxi, or being a security guard
  • Ineligible for certain government benefits such as welfare and federally-funded housing
  • If you are not a citizen you may be subject to deportation under federal law
  • Barred from enrollment in some schools, or barred from living on campus at some schools
  • Barred from serving on a jury
  • Barred from owning a gun

Furthermore, being convicted of domestic violence stalking may permanently disrupt your family relationships if you are married to the victim or share children with the victim. For example, such a conviction may result in you losing custody of your children.

Being arrested for domestic violence based on stalking is very serious. Not only are you likely to send up in prison for a number of years, after you serve your prison term you will have a criminal record. As a result, many aspects of your life will be much more difficult. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with domestic violence, stalking, as well as other criminal offenses such as assault, reckless endangerment, strangulation, menacing, and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence in the following locations:

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