Stalking is usually thought of as the act of following another person or continuously and persistently trying to get in touch with them through email, text messaging or phone calls and the individual becomes irritated. However, there is actually much more to the crime of stalking than just annoying another person. The act of stalking encompasses a number of means of communication, including tracking, following, emailing, calling, texting and any other type of communication that is so frequent that the person begins to fear for their safety or for the safety of their family. If the act of stalking also results in the victim being physically injured or sexually assaulted, the crime would be charged as stalking in the first degree, which is a felony.
How is a Person Charged with Stalking in the First Degree in New York?
As per New York’s Penal Code 120.60, a person can be charged with stalking in the first degree if they stalk someone and cause that person physical injury as well. In addition, stalking another person that results in a crime of a sexual nature, including rape, sexual abuse, sexual misconduct, female genital mutilation or a criminal sexual act can be charged as stalking in the first degree.
One example of stalking in the first degree can be seen in the case People v. Gomez from 2007. The defendant, Saul Gomez, was convicted of first degree stalking after he stalked his victim and then caused a serious physical injury to that person. He assaulted the person by repeatedly punching them and caused the victim bleeding, swelling, severe pain and even difficulty walking.
Possible Defenses to Stalking in the First Degree in New York
One particular defense that a skilled New York criminal defense attorney might use in a stalking in the first degree case is to show that the person did not suffer a physical injury as is required by the Penal Code in order for the first degree charge to stick. If the victim did not suffer a serious physical injury but merely experienced mild pain and a scratch or bruise, it would not be stalking in the first degree. It is required that the victim has suffered some form of physical condition or impairment or suffer from severe pain. If there is no such injury or impairment, then the charge can be reduced to stalking in the second degree as there would be no grounds for a first degree conviction.
What is the Sentence for Stalking in the First Degree in New York?
Stalking in the first degree in New York is charged as a class D felony, a serious charge. It can result in incarceration in state prison for a maximum of seven years and the individual being ordered to pay a fine that may be a maximum of $5,000. In addition, stalking in the first degree is considered a violent felony offense, resulting in an additional two years in prison. A person who is convicted of this crime will not simply be sentenced to probation. The judge will issue far more severe penalties every time. The court will also very likely give the victim an order of protection, meaning that if the defendant continues to have any type of contact with them, that will also be charged as a crime.
Summary of New York Penal Code 120.60, Stalking in the First Degree
When a person commits the crime of stalking in the third degree, defined in the Penal Code 120.50 or stalking in the second degree as per the Penal Code 120.55 of New York, they are guilty of stalking. Additional actions that make up stalking and increase the charge to the first degree include the following:
• The individual deliberately or recklessly causes a physical injury to the victim they have been stalking
• Commits a class A misdemeanor, class E felony or class D felony crime of stalking
