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 , 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).
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
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).
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).
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).
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).
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).
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.