UNLAWFUL SURVEILLANCE IN THE SECOND DEGREE PENAL LAW 250.45(4) (Committed on or after Aug. 11, 2003) The (specify) count is Unlawful Surveillance in the Second Degree. Under our law, a person is guilty of Unlawful Surveillance in the Second Degree when, without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view,1 broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person. The following terms used in that definition have a special meaning: 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.2 [BROADCAST means electronically transmitting a visual People v. Lema,152 A.D.3d 440 (1st Dept. 2017), the defendant 1In used a phone camera to record underneath women's skirts on a subway train, of or other intimate but “no image their ‘sexual parts’ (Penal Law § 250.45 [4]) resulted because of the The Court, dark lighting conditions.” however, held that is satisfied so long as a defendant attempts “the statute to create such an image....it can fairly be said that defendant used the device . . that is, for the purpose of creating a recording, even ‘to . record,’ though that recording was never successfully made.” A trial court faced with a Lema issue may wish to adapt the language of that case for inclusion in the charge. Penal Law § 250.40(2). 2
UNLAWFUL SURVEILLANCE IN THE SECOND DEGREE PENAL LAW 250.45(4) (Committed on or after Aug. 11, 2003) The (specify) count is Unlawful Surveillance in the Second Degree. Under our law, a person is guilty of Unlawful Surveillance in the Second Degree when, without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view,1 broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person. The following terms used in that definition have a special meaning: 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.2 [BROADCAST means electronically transmitting a visual 1In People v. Lema,152 A.D.3d 440 (1st Dept. 2017), the defendant used a phone camera to record underneath women's skirts on a subway train, but “no image of their ‘sexual or other intimate parts’ (Penal Law § 250.45 [4]) resulted because of the dark lighting conditions.” The Court, however, held that “the statute is satisfied so long as a defendant attempts to create such an image....it can fairly be said that defendant used the device ‘to . . . record,’ that is, for the purpose of creating a recording, even though that recording was never successfully made.” A trial court faced with a Lema issue may wish to adapt the language of that case for inclusion in the charge. 2 Penal Law § 250.40(2).
250.45-4.docx