May an appellate court take judicial notice of a fact for the first time on appeal where the trial court refused a party’s request to take judicial notice of the same fact, or even where the lower court was never asked to judicially notice that fact?  The answer, somewhat counter-intuitively, is yes. 

In Handling a Criminal Case in New York § 23:35 [2013], Gary Muldoon notes that “[i]t is a basic tenet of appellate practice that it is improper for an attorney to argue matters that are dehors (outside) the record on appeal” (see also, e.g., People v Chiles, 70 AD3d 1453 [4th Dept 2010]). There are exceptions to this rule, however.  One exception is evidence of a defendant’s post-sentencing rehabilitation on the issue of whether a sentence is harsh and excessive (Id. at § 23:36). Another relates to judicial notice of facts for the first time on appeal, which appellate courts may take, whether the parties have asked for it or not.  Usually (see below), this doesn’t help the defendant any. However being aware that an argument in favor of such judicial notice can properly be made may be a valuable tool in the appropriate case.  

For example, in People v Schreier, 22 NY3d 494 [2014], discussed in “Surreptitiousness is an element of Unlawful Surveillance” below, the Court of Appeals took judicial notice of the time of sunrise on the date charged in the indictment, citing to a report of the United States Naval Observatory, Astronomical Applications Department, Complete Sun and Moon Data for One Day, Form A-U.S. Cities or Towns, Dec. 24, 2008, Rochester, New York, http://aa.usno.navy.mil/data/docs/RS_One Day.php.  Significantly, according to the Court’s citation to that authority, the Court itself accessed the reference material on January 23, 2014, just three weeks before its decision was published, well after the appeal had been filed and argued.  

In United States v Davis, 726 F3d 357 [2nd Cir 2013], defendant was federally charged with assaulting another inmate at the Metropolitan Detention Center, which the government alleged was “within the special maritime and territorial jurisdiction of the United States,” an element of that offense. The government offered no evidence other than the testimony of federal corrections officers that the MDC is a federal facility on federal land. At the close of the government’s case, the district court denied defendant’s motion to dismiss the charge based on the government’s failure to prove geographic jurisdiction. The district court denied defendant’s motion but also, as defendant’s request, refused to take judicial notice that the MDC was a federal facility on federal land, holding that that was a question of fact for the jury. The jury thereafter convicted the defendant of assault as charged. 

On appeal, the Second Circuit held that the testimony of the government’s witnesses relative to geographical jurisdiction was legally insufficient to support defendant’s conviction. The Court affirmed defendant’s conviction nonetheless, based on its own taking of judicial notice that the MDC is “within the special maritime and territorial jurisdiction of the United States,” based on its review of documents reflecting the transfer of title from New York State to the United States of the land on which the MDC it located.  This was preceded by a detailed examination by the Court of its authority to take judicial notice on appeal of the same fact the district court refused to judicially notice. 

In United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995], the Court drew a distinction between taking judicial notice of  “adjudicative facts” and “legislative facts.”  Adjudicative facts are “those developed in a particular case” which the trial court may take judicial notice of, but must “instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed” so as not to run afoul of the defendant’s Sixth Amendment confrontation rights (Id. at 810).  By contrast,“legislative facts,” the Court held, are “established truths, facts or pronouncements that do not change from case to case but apply universally” (Id. at 812, quoting United States v Gould, 536 F2d 216, 220 [8th Cir 1976]). A court that takes judicially notice of a legislative fact may then “remove that issue from consideration by the jury” (Id.).  

In Hernandez-Fundora, the Court found that whether Raybrook Federal Correctional Institution was “within the special maritime and territorial jurisdiction of the United States” was a question “premised upon a determination of legislative, rather than adjudicative, facts.” Accordingly, the Second Circuit held that after the district court took judicial notice of that fact, it properly removed that issue from the jury’s consideration by instructed the jury that Raybrook fell within the special maritime and territorial jurisdiction of the United States.

The Second Circuit noted that it is particularly appropriate for appellate courts to take judicial notice of facts in the first instance that relate to “‘straightforward questions’ such as ‘geography and jurisdiction,’” i.e., legislative facts (Davis, 726 F3d at 367, quoting Landell v Sorrell, 382 F3d 91, 135 n 24 [2nd Cir 2002], citing United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995]; see also, Mills v Denver Tramway Corp., 155 F2d 808, 812 [10th Cir 1946] [trial court’s refusal to take judicial notice of a fact does not preclude party from raising the issue for the first time on appeal or prevent the appellate court from judicially noticing the fact on its own accord]; Ross v American Exp. Co., ___ FSupp2d ___, 2014 WL 1396492 at *21 n 27 [SDNY 2014]). 

Resort to such judicial notice on appeal might be appropriate where, for example, the trial proof establishes that a police officer acted beyond the bounds of his geographical jurisdiction, as demonstrated by reference to a map of the city or town in which the officer was employed (see, e.g., People v Graham, 192 Misc2d 528 [Sup Ct Erie Co 2002], aff’d 1 AD3d 1066 [4th Dept 2003] [where officer lacked authority to arrest defendant for traffic infractions outside the town of his employment, initial stop was tainted and all evidence obtained as a result was fruit of the poisonous tree]).

May an appellate court take judicial notice of a fact for the first time on appeal where the trial court refused a party’s request to take judicial notice of the same fact, or even where the lower court was never asked to judicially notice that fact?  The answer, somewhat counter-intuitively, is yes. 

In Handling a Criminal Case in New York § 23:35 [2013], Gary Muldoon notes that “[i]t is a basic tenet of appellate practice that it is improper for an attorney to argue matters that are dehors (outside) the record on appeal” (see also, e.g., People v Chiles, 70 AD3d 1453 [4th Dept 2010]). There are exceptions to this rule, however.  One exception is evidence of a defendant’s post-sentencing rehabilitation on the issue of whether a sentence is harsh and excessive (Id. at § 23:36). Another relates to judicial notice of facts for the first time on appeal, which appellate courts may take, whether the parties have asked for it or not.  Usually (see below), this doesn’t help the defendant any. However being aware that an argument in favor of such judicial notice can properly be made may be a valuable tool in the appropriate case.  

For example, in People v Schreier, 22 NY3d 494 [2014], discussed in “Surreptitiousness is an element of Unlawful Surveillance” below, the Court of Appeals took judicial notice of the time of sunrise on the date charged in the indictment, citing to a report of the United States Naval Observatory, Astronomical Applications Department, Complete Sun and Moon Data for One Day, Form A-U.S. Cities or Towns, Dec. 24, 2008, Rochester, New York, http://aa.usno.navy.mil/data/docs/RS_One Day.php.  Significantly, according to the Court’s citation to that authority, the Court itself accessed the reference material on January 23, 2014, just three weeks before its decision was published, well after the appeal had been filed and argued.  

In United States v Davis, 726 F3d 357 [2nd Cir 2013], defendant was federally charged with assaulting another inmate at the Metropolitan Detention Center, which the government alleged was “within the special maritime and territorial jurisdiction of the United States,” an element of that offense. The government offered no evidence other than the testimony of federal corrections officers that the MDC is a federal facility on federal land. At the close of the government’s case, the district court denied defendant’s motion to dismiss the charge based on the government’s failure to prove geographic jurisdiction. The district court denied defendant’s motion but also, as defendant’s request, refused to take judicial notice that the MDC was a federal facility on federal land, holding that that was a question of fact for the jury. The jury thereafter convicted the defendant of assault as charged. 

On appeal, the Second Circuit held that the testimony of the government’s witnesses relative to geographical jurisdiction was legally insufficient to support defendant’s conviction. The Court affirmed defendant’s conviction nonetheless, based on its own taking of judicial notice that the MDC is “within the special maritime and territorial jurisdiction of the United States,” based on its review of documents reflecting the transfer of title from New York State to the United States of the land on which the MDC it located.  This was preceded by a detailed examination by the Court of its authority to take judicial notice on appeal of the same fact the district court refused to judicially notice. 

In United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995], the Court drew a distinction between taking judicial notice of  “adjudicative facts” and “legislative facts.”  Adjudicative facts are “those developed in a particular case” which the trial court may take judicial notice of, but must “instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed” so as not to run afoul of the defendant’s Sixth Amendment confrontation rights (Id. at 810).  By contrast,“legislative facts,” the Court held, are “established truths, facts or pronouncements that do not change from case to case but apply universally” (Id. at 812, quoting United States v Gould, 536 F2d 216, 220 [8th Cir 1976]). A court that takes judicially notice of a legislative fact may then “remove that issue from consideration by the jury” (Id.).  

In Hernandez-Fundora, the Court found that whether Raybrook Federal Correctional Institution was “within the special maritime and territorial jurisdiction of the United States” was a question “premised upon a determination of legislative, rather than adjudicative, facts.” Accordingly, the Second Circuit held that after the district court took judicial notice of that fact, it properly removed that issue from the jury’s consideration by instructed the jury that Raybrook fell within the special maritime and territorial jurisdiction of the United States.

The Second Circuit noted that it is particularly appropriate for appellate courts to take judicial notice of facts in the first instance that relate to “‘straightforward questions’ such as ‘geography and jurisdiction,’” i.e., legislative facts (Davis, 726 F3d at 367, quoting Landell v Sorrell, 382 F3d 91, 135 n 24 [2nd Cir 2002], citing United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995]; see also, Mills v Denver Tramway Corp., 155 F2d 808, 812 [10th Cir 1946] [trial court’s refusal to take judicial notice of a fact does not preclude party from raising the issue for the first time on appeal or prevent the appellate court from judicially noticing the fact on its own accord]; Ross v American Exp. Co., ___ FSupp2d ___, 2014 WL 1396492 at *21 n 27 [SDNY 2014]). 

Resort to such judicial notice on appeal might be appropriate where, for example, the trial proof establishes that a police officer acted beyond the bounds of his geographical jurisdiction, as demonstrated by reference to a map of the city or town in which the officer was employed (see, e.g., People v Graham, 192 Misc2d 528 [Sup Ct Erie Co 2002], aff’d 1 AD3d 1066 [4th Dept 2003] [where officer lacked authority to arrest defendant for traffic infractions outside the town of his employment, initial stop was tainted and all evidence obtained as a result was fruit of the poisonous tree]).

As we know, under the due process clauses of the New York State Constitution, Article I, § 6, and the United States Constitution, Fourteenth Amendment, evidence of a pretrial identification of the defendant is inadmissible if the procedure used is “unnecessarily suggestive” (Neil v Biggers, 409 US 188 [1972]; People v Adams, 53 NY2d 241 [1981]; People v Owens, 74 NY2d 677 [1989]; People v Farraro, 144 AD2d 976 [4th Dept 1988]). If tainted by suggestion, identification procedures can lead to irreparable misidentification (People v Rodriguez,79 NY2d at 449); “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor; perhaps it is responsible for more such errors than all other factors combined”(People v Rodriguez, 79 NY2d at 449). 

With respect to eyewitness testimony, the United States Supreme Court has acknowledged that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification” (United States v Wade, 388 US 218, 228 [1967]), while studies and psychological research support the court’s finding that identification testimony, among the most common form of evidence presented in criminal trials, is frequently wrong (see e.g., Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” 22 Law & Hum. Behav. 603, 605 [1998] [study of 40 cases involving innocent people who were convicted of serious crimes and served time in prison, five on death row, in which 36 involved eyewitness identification where one or more eyewitnesses falsely identified the person]; Innocence Project, http://www.innocenceproject.org/Content/2080.php [179 of first 230 DNA exonerations involved mistaken identification]).  The Court, explicitly recognizing the relationship between suggestiveness and mistakes in identification has repeatedly expressed concern that police arranged identification procedures may alter a witness’s memory rendering the subsequent identification testimony unreliable (United States v Wade, 388 US 218 [1967], Stovall v Denno, 388 US 293 [1967]; Simmons v United States, 390 US 377 [1968]; Manson v Braithwaite, 432 US 98 [1977]). 

In People v Collins, 60 NY2d 214, 218 [1983], the Court of Appeals held that voice identifications are subject to the same concerns relative to suggestiveness, and same constitutional safeguards, as visual identifications (see also, People v McRae, 195 AD2d 180, 185 [1st Dept 1994]; People v Shepard, 162 AD2d 226 [1st Dept 1990], lv den, 76 NY2d 944). Thus, upon a motion to suppress, it is the prosecution’s obligation to come forward with evidence establishing that the police procedures used were not unduly suggestive as to either visual or aural identifications (People v McRae, 195AD2d 180, 185 [1st Dept 1994]). 

The suggestiveness of pretrial procedures is determined by examination of the totality of the circumstances (People v Valdez, 204 AD2d 369 [2nd Dept 1994]).  The People have the initial burden of going forward to show the “lack of any undue suggestiveness” (People v Chipp, 75 NY2d 327, 335 [1990]; People v Ortiz, 90 NY2d 533 [1997]).  While suggestiveness is often the result of factors that highlight a particular suspect, a suggestiveness inquiry “must also review any actions taken by, or circumstances attributable to, the authorities which prompt, influence, or strengthen the witness’s identification” (Hibel, New York Identification Law, 142 [2006]).

The need to conduct a lineup, and to insure that fillers in the lineup have similar characteristics to the suspect and any description of the perpetrator applies to ear-witness as well as eye-witness identification procedures (People v McRae, 195 AD2d 180 [1st Dept 1994]).  The First Department has held, with respect to an aural identification procedure that 

suggestiveness could be caused by the selection of fillers whose voices were so dissimilar to a description given by the complainant of the criminal’s voice that the complainant would eliminate the fillers out of hand or by the selection of fillers whose voices were so similar to each other and yet so dissimilar to defendant’s as to unfairly highlight defendant’s voice.

(People v McRae, 195 AD2d 180, 185-186 [1st Dept 1994]).

The Court also held that “where the police conducted the voice identification and the defendant was compelled to participate, due process considerations require that the procedures have been conducted in a way not conducive to mistaken identification (internal citations omitted).”  For example, a physical lineup in which the fillers were all of a different race than the defendant would not be permissible merely because the prosecution was able to show that the fillers had been selected by a totally random process (People v McRae, 195 AD2d 180, 186 [1st Dept 1994]).

So too with voice identifications: offering a single recorded voice for identification, for example, is the practical equivalent of displaying the suspect's mug shot to the witness.  Likewise, in a voice lineup, disparity in the voice characteristics of the fillers may be just as suggestive as differing physical characteristics.  

That any failure to meet the constitutional standard may have been through oversight and not intentional is irrelevant to the test for suggestiveness (United States v Wade, 388 US 218 at 228, 229, 235 [1967]). 

Finally, characterization of voice a identification as“confirmatory” is not warranted absent some evidentiary basis for the witness’s familiarity with the defendant’s voice (People v Deleon, 273 AD2d 27, 28 [1st Dept 2000]; see also, Hibel, New York Identification Law, § 1.02[7][c] [2006]).

As we know, under the due process clauses of the New York State Constitution, Article I, § 6, and the United States Constitution, Fourteenth Amendment, evidence of a pretrial identification of the defendant is inadmissible if the procedure used is “unnecessarily suggestive” (Neil v Biggers, 409 US 188 [1972]; People v Adams, 53 NY2d 241 [1981]; People v Owens, 74 NY2d 677 [1989]; People v Farraro, 144 AD2d 976 [4th Dept 1988]). If tainted by suggestion, identification procedures can lead to irreparable misidentification (People v Rodriguez,79 NY2d at 449); “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor; perhaps it is responsible for more such errors than all other factors combined”(People v Rodriguez, 79 NY2d at 449). 

With respect to eyewitness testimony, the United States Supreme Court has acknowledged that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification” (United States v Wade, 388 US 218, 228 [1967]), while studies and psychological research support the court’s finding that identification testimony, among the most common form of evidence presented in criminal trials, is frequently wrong (see e.g., Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” 22 Law & Hum. Behav. 603, 605 [1998] [study of 40 cases involving innocent people who were convicted of serious crimes and served time in prison, five on death row, in which 36 involved eyewitness identification where one or more eyewitnesses falsely identified the person]; Innocence Project, http://www.innocenceproject.org/Content/2080.php [179 of first 230 DNA exonerations involved mistaken identification]).  The Court, explicitly recognizing the relationship between suggestiveness and mistakes in identification has repeatedly expressed concern that police arranged identification procedures may alter a witness’s memory rendering the subsequent identification testimony unreliable (United States v Wade, 388 US 218 [1967], Stovall v Denno, 388 US 293 [1967]; Simmons v United States, 390 US 377 [1968]; Manson v Braithwaite, 432 US 98 [1977]). 

In People v Collins, 60 NY2d 214, 218 [1983], the Court of Appeals held that voice identifications are subject to the same concerns relative to suggestiveness, and same constitutional safeguards, as visual identifications (see also, People v McRae, 195 AD2d 180, 185 [1st Dept 1994]; People v Shepard, 162 AD2d 226 [1st Dept 1990], lv den, 76 NY2d 944). Thus, upon a motion to suppress, it is the prosecution’s obligation to come forward with evidence establishing that the police procedures used were not unduly suggestive as to either visual or aural identifications (People v McRae, 195AD2d 180, 185 [1st Dept 1994]). 

The suggestiveness of pretrial procedures is determined by examination of the totality of the circumstances (People v Valdez, 204 AD2d 369 [2nd Dept 1994]).  The People have the initial burden of going forward to show the “lack of any undue suggestiveness” (People v Chipp, 75 NY2d 327, 335 [1990]; People v Ortiz, 90 NY2d 533 [1997]).  While suggestiveness is often the result of factors that highlight a particular suspect, a suggestiveness inquiry “must also review any actions taken by, or circumstances attributable to, the authorities which prompt, influence, or strengthen the witness’s identification” (Hibel, New York Identification Law, 142 [2006]).

The need to conduct a lineup, and to insure that fillers in the lineup have similar characteristics to the suspect and any description of the perpetrator applies to ear-witness as well as eye-witness identification procedures (People v McRae, 195 AD2d 180 [1st Dept 1994]).  The First Department has held, with respect to an aural identification procedure that 

suggestiveness could be caused by the selection of fillers whose voices were so dissimilar to a description given by the complainant of the criminal’s voice that the complainant would eliminate the fillers out of hand or by the selection of fillers whose voices were so similar to each other and yet so dissimilar to defendant’s as to unfairly highlight defendant’s voice.

(People v McRae, 195 AD2d 180, 185-186 [1st Dept 1994]).

The Court also held that “where the police conducted the voice identification and the defendant was compelled to participate, due process considerations require that the procedures have been conducted in a way not conducive to mistaken identification (internal citations omitted).”  For example, a physical lineup in which the fillers were all of a different race than the defendant would not be permissible merely because the prosecution was able to show that the fillers had been selected by a totally random process (People v McRae, 195 AD2d 180, 186 [1st Dept 1994]).

So too with voice identifications: offering a single recorded voice for identification, for example, is the practical equivalent of displaying the suspect's mug shot to the witness.  Likewise, in a voice lineup, disparity in the voice characteristics of the fillers may be just as suggestive as differing physical characteristics.  

That any failure to meet the constitutional standard may have been through oversight and not intentional is irrelevant to the test for suggestiveness (United States v Wade, 388 US 218 at 228, 229, 235 [1967]). 

Finally, characterization of voice a identification as“confirmatory” is not warranted absent some evidentiary basis for the witness’s familiarity with the defendant’s voice (People v Deleon, 273 AD2d 27, 28 [1st Dept 2000]; see also, Hibel, New York Identification Law, § 1.02[7][c] [2006]).

Penal Law 250.45 contains four subdivisions describing four different ways a defendant may engage in Unlawful Surveillance in the Second Degree.  Although easily overlooked, each subdivision of the statute includes a requirement that the surveillance in question be done surreptitiously.  

In People v Schreier, 22 NY3d 494 [2014], the Court made clear that surreptitiousness is a separate and distinct element from whether the recording was done without the subject’s knowledge or consent, and is also separate and distinct from the requirement that the recording took place in a location where the subject had a reasonable expectation of privacy (both of which are also required by the statute).  This holding is unsurprising, given the legislative history of the statute, which was enacted to combat “video voyeurism” following an incident where a woman was secretly recorded in her bedroom by her landlord, who had concealed a hidden camera in a smoke detector (People v Schreier, supra, at 497-498, citing Donnino, Practice Commentary, McKinney’s Cons Laws, Book 39, Penal Law § 250.40, at 250).

Earlier, in People v Piznarski, 113 AD3d 166 [3rd Dept 2013], the Third Department, defining the requirement that the recording be surreptitious, held that: 

The term “surreptitious” connotes a secretive act and is defined as “obtained, done, made, etc., by stealth; secret or unauthorized; clandestine[;] ... acting in a stealthy way” (Dictionary.com [Dictionary.com Unabridged, Random House, Inc.]) . . . in this case, the fact that both defendant and the camera were visible in defendant’s room is immaterial, as defendant was using the camera in a surreptitious manner [emphasis added].

The Third Department went on to reject the defendant’s argument that the element of surreptitiousness and the requirement that the recording be without a victim’s knowledge or consent were one in the same, rendering the “knowledge or consent” language superfluous (Id., at 111 [“Indeed, a penal statute may not be interpreted in such a way that ‘words which define or delimit the reach of statutory provisions [are] disregarded as superfluous’ ”] [citations omitted]).  In that case, the court found that neither of the victims were

aware of or consented to defendant recording them while having sex [and] the People also tendered proof of actions by defendant demonstrating that he used the camera surreptitiously. The video of victim B shows that defendant began to record and position the camera on his desk while victim B was outside his bedroom. Similarly, the March 2010 video of victim A shows that defendant turned the camera on while victim A was performing oral sex and had her eyes closed.  Defendant did not call the victims’ attention to the camera or to the fact that he was recording them.  This evidence, which establishes the element of surreptitiousness, can be distinguished from the evidence that proves the victims’ lack of knowledge or consent and gives it independent meaning and effect.

People v Piznarski, supra, at 111-112.

Likewise, in Schreier, the defendant stood at the victim’s front door in the dark early morning hours and held a small black camera in his black-gloved hand to record the victim in her bathroom through a window over the front door, which was not eye level to a person standing on the victim’s porch. In Piznarski, after finding that the victims lacked knowledge or consent of the recording, the Third Department separately considered the defendant’s actions, described above, and found that those actions satisfied the element of surreptitiousness. 

As Schreier makes clear, while the elements of the victim’s reasonable expectation of privacy and the victim’s knowledge or consent focus on the victim, the element of surreptitiousness focuses on the defendant’s conduct.  That the recording occurred without the victim’s knowledge and consent or in an area where the victim would have a reasonable expectation of privacy is not enough to support a charge under this statute; there must also be facts supporting a finding that the defendant acted surreptitiously when making such recording. 

In order to properly charge Unlawful Surveillance, (1) the proof before the grand jury must be legally sufficient to support a finding that the defendant's conduct was surreptitious (separate and apart from the victim's knowledge or consent and the location where the recording occurred), (2) the District Attorney must instruct the grand jury that the defendant's conduct must be surreptitious (and ideally, define surreptitiousness for the grand jury), and (3) the indictment must allege that defendant's conduct was surreptitious.  An indictment that fails to meet these requirements may be challenged based on the legal sufficiency of the proof or as defective.  An indictment that the alleged Unlawful Surveillance was surreptitious fails to allege a crime and therefore, may not be amended to include that missing element (see, CPL 200.70[2]).  

The same requirements should apply before the petit jury, however the model CJI instruction does not define surreptitiousness or make clear to the jury that it is a necessary element of the offense.  In light of Schreier, perhaps the CJI instruction should be amended.  A suggested amended instruction using the first subsection of the statute is set forth below. 

UNLAWFUL SURVEILLANCE SECOND DEGREE 

(E Felony)

PENAL LAW 250.45(1)

The _____ count of the indictment charges the defendant with Unlawful Surveillance in the Second Degree in violation of Penal Law 250.45(1).

Under our law, a  person is guilty of Unlawful Surveillance in the Second Degree when, for his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent. 

Some of the terms used in this definition have their own special meaning in our law.  I will now give you the meaning of the following terms: “imaging device”; “surreptitiously”; [“broadcast;”] “sexual or other intimate parts”; “place and time when a person has a reasonable expectation of privacy”; and “intentionally.”

IMAGING DEVICE means any mechanical, digital or electronic viewing device, camera or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person (Penal Law § 250.40[2]).

SURREPTITIOUSLY means that the act was done stealthily or secretively (People v Piznarski,113 AD3d 166 [3rd Dept 2013], citing Dictionary.com [Dictionary.com Unabridged, Random House, Inc.]).

[BROADCAST means electronically transmitting a visual image with the intent that it be viewed by a person. (Penal Law § 250.40[4]). 

SEXUAL OR OTHER INTIMATE PARTS means the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment (Penal Law §  250.40[3]).

PLACE AND TIME WHEN A PERSON HAS A REASONABLE EXPECTATION OF PRIVACY means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy (Penal Law § 250.40[1]).

Intent means conscious objective or purpose. Thus, a person INTENTIONALLY uses or installs, [or permits the utilization or installation of] an imaging device to surreptitiously view, [broadcast or record] a person dressing or undressing, or the sexual or other intimate parts of such person, when his or her conscious objective or purpose is to do so (Penal Law § 15.05[1]).

In order for you to find the defendant guilty of this crime, the People are required to prove,  from all the evidence in the case, beyond a reasonable doubt, each of the following elements:

1. That on or about ___________________, in the county of ______, State of New York, the defendant, _______________, used or permitted the utilization of an imaging device to record a person dressing or undressing, or the sexual or other intimate parts of a person at a place and time when such person had a reasonable expectation of privacy, 

2. That the defendant did so surreptitiously;

3. That the defendant did so without such person’s knowledge or consent;

4.   That the defendant did so intentionally; and

5. That the defendant did so for his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person.

Therefore, if you find that the People have proven beyond a reasonable doubt each of those elements, you must find the defendant guilty of the crime of Unlawful Surveillance in the Second Degree as charged.

On the other hand, if you find that the People have not proven beyond a reasonable doubt any one or more of those elements, you must find the defendant not guilty of the crime of  Unlawful Surveillance in the Second Degree as charged in the _______ count of the indictment.

* Thanks to Danielle Wild, 3L, Syracuse Law School, for the draft of the proposed amended instruction.

Penal Law 250.45 contains four subdivisions describing four different ways a defendant may engage in Unlawful Surveillance in the Second Degree.  Although easily overlooked, each subdivision of the statute includes a requirement that the surveillance in question be done surreptitiously.  

In People v Schreier, 22 NY3d 494 [2014], the Court made clear that surreptitiousness is a separate and distinct element from whether the recording was done without the subject’s knowledge or consent, and is also separate and distinct from the requirement that the recording took place in a location where the subject had a reasonable expectation of privacy (both of which are also required by the statute).  This holding is unsurprising, given the legislative history of the statute, which was enacted to combat “video voyeurism” following an incident where a woman was secretly recorded in her bedroom by her landlord, who had concealed a hidden camera in a smoke detector (People v Schreier, supra, at 497-498, citing Donnino, Practice Commentary, McKinney’s Cons Laws, Book 39, Penal Law § 250.40, at 250).

Earlier, in People v Piznarski, 113 AD3d 166 [3rd Dept 2013], the Third Department, defining the requirement that the recording be surreptitious, held that: 

The term “surreptitious” connotes a secretive act and is defined as “obtained, done, made, etc., by stealth; secret or unauthorized; clandestine[;] ... acting in a stealthy way” (Dictionary.com [Dictionary.com Unabridged, Random House, Inc.]) . . . in this case, the fact that both defendant and the camera were visible in defendant’s room is immaterial, as defendant was using the camera in a surreptitious manner [emphasis added].

The Third Department went on to reject the defendant’s argument that the element of surreptitiousness and the requirement that the recording be without a victim’s knowledge or consent were one in the same, rendering the “knowledge or consent” language superfluous (Id., at 111 [“Indeed, a penal statute may not be interpreted in such a way that ‘words which define or delimit the reach of statutory provisions [are] disregarded as superfluous’ ”] [citations omitted]).  In that case, the court found that neither of the victims were

aware of or consented to defendant recording them while having sex [and] the People also tendered proof of actions by defendant demonstrating that he used the camera surreptitiously. The video of victim B shows that defendant began to record and position the camera on his desk while victim B was outside his bedroom. Similarly, the March 2010 video of victim A shows that defendant turned the camera on while victim A was performing oral sex and had her eyes closed.  Defendant did not call the victims’ attention to the camera or to the fact that he was recording them.  This evidence, which establishes the element of surreptitiousness, can be distinguished from the evidence that proves the victims’ lack of knowledge or consent and gives it independent meaning and effect.

People v Piznarski, supra, at 111-112.

Likewise, in Schreier, the defendant stood at the victim’s front door in the dark early morning hours and held a small black camera in his black-gloved hand to record the victim in her bathroom through a window over the front door, which was not eye level to a person standing on the victim’s porch. In Piznarski, after finding that the victims lacked knowledge or consent of the recording, the Third Department separately considered the defendant’s actions, described above, and found that those actions satisfied the element of surreptitiousness. 

As Schreier makes clear, while the elements of the victim’s reasonable expectation of privacy and the victim’s knowledge or consent focus on the victim, the element of surreptitiousness focuses on the defendant’s conduct.  That the recording occurred without the victim’s knowledge and consent or in an area where the victim would have a reasonable expectation of privacy is not enough to support a charge under this statute; there must also be facts supporting a finding that the defendant acted surreptitiously when making such recording. 

In order to properly charge Unlawful Surveillance, (1) the proof before the grand jury must be legally sufficient to support a finding that the defendant's conduct was surreptitious (separate and apart from the victim's knowledge or consent and the location where the recording occurred), (2) the District Attorney must instruct the grand jury that the defendant's conduct must be surreptitious (and ideally, define surreptitiousness for the grand jury), and (3) the indictment must allege that defendant's conduct was surreptitious.  An indictment that fails to meet these requirements may be challenged based on the legal sufficiency of the proof or as defective.  An indictment that the alleged Unlawful Surveillance was surreptitious fails to allege a crime and therefore, may not be amended to include that missing element (see, CPL 200.70[2]).  

The same requirements should apply before the petit jury, however the model CJI instruction does not define surreptitiousness or make clear to the jury that it is a necessary element of the offense.  In light of Schreier, perhaps the CJI instruction should be amended.  A suggested amended instruction using the first subsection of the statute is set forth below. 

UNLAWFUL SURVEILLANCE SECOND DEGREE 

(E Felony)

PENAL LAW 250.45(1)

The _____ count of the indictment charges the defendant with Unlawful Surveillance in the Second Degree in violation of Penal Law 250.45(1).

Under our law, a  person is guilty of Unlawful Surveillance in the Second Degree when, for his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent. 

Some of the terms used in this definition have their own special meaning in our law.  I will now give you the meaning of the following terms: “imaging device”; “surreptitiously”; [“broadcast;”] “sexual or other intimate parts”; “place and time when a person has a reasonable expectation of privacy”; and “intentionally.”

IMAGING DEVICE means any mechanical, digital or electronic viewing device, camera or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person (Penal Law § 250.40[2]).

SURREPTITIOUSLY means that the act was done stealthily or secretively (People v Piznarski,113 AD3d 166 [3rd Dept 2013], citing Dictionary.com [Dictionary.com Unabridged, Random House, Inc.]).

[BROADCAST means electronically transmitting a visual image with the intent that it be viewed by a person. (Penal Law § 250.40[4]). 

SEXUAL OR OTHER INTIMATE PARTS means the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment (Penal Law §  250.40[3]).

PLACE AND TIME WHEN A PERSON HAS A REASONABLE EXPECTATION OF PRIVACY means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy (Penal Law § 250.40[1]).

Intent means conscious objective or purpose. Thus, a person INTENTIONALLY uses or installs, [or permits the utilization or installation of] an imaging device to surreptitiously view, [broadcast or record] a person dressing or undressing, or the sexual or other intimate parts of such person, when his or her conscious objective or purpose is to do so (Penal Law § 15.05[1]).

In order for you to find the defendant guilty of this crime, the People are required to prove,  from all the evidence in the case, beyond a reasonable doubt, each of the following elements:

1. That on or about ___________________, in the county of ______, State of New York, the defendant, _______________, used or permitted the utilization of an imaging device to record a person dressing or undressing, or the sexual or other intimate parts of a person at a place and time when such person had a reasonable expectation of privacy, 

2. That the defendant did so surreptitiously;

3. That the defendant did so without such person’s knowledge or consent;

4.   That the defendant did so intentionally; and

5. That the defendant did so for his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person.

Therefore, if you find that the People have proven beyond a reasonable doubt each of those elements, you must find the defendant guilty of the crime of Unlawful Surveillance in the Second Degree as charged.

On the other hand, if you find that the People have not proven beyond a reasonable doubt any one or more of those elements, you must find the defendant not guilty of the crime of  Unlawful Surveillance in the Second Degree as charged in the _______ count of the indictment.

* Thanks to Danielle Wild, 3L, Syracuse Law School, for the draft of the proposed amended instruction.