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Stalking / Cyberstalking

The term "stalking" under New York's laws is often defined as a course of conduct directed at a specific person that would cause a reasonable person fear that a future act of violence is imminent. New York's stalking laws and definitions focus on the alleged victim's state of mind and fear. This objective view is different than the specific intent required in New York's laws against harassment, criminal contempt and menacing statutes to annoy, harass, or place the alleged victim in fear of injury.

Enhanced penalties apply in New York under a variety of circumstances, including if a weapon is used, if the victim is under the age of 14, if the defendant has committed certain prior offenses. Types of stalking behavior often involve allegations of making unwanted calls, texts,  and messages to the alleged victim. Cyberstalking involves allegations of repeated unwanted on-line communications. Often the stalking stories involve following, harassing the alleged victim or engaging in unlawful surveillance.

Once an allegation of stalking is made, law enforcement officers often have a difficult time deciding how to handle the case. In many of these cases, the officers must rely on one side of the story. Stalking typically involves actions that taken individually would not be considered a crime, but when considered together suggest a pattern of behavior that places the alleged victim in reasonable fear.

Stalking Defense Attorney in Queens, NY

Rochelle S. Berliner is dedicated to protecting her clients charged with the very serious misdemeanor or felony charge of stalking. She investigates her client's side of the story, gathering evidence and records that support the defense. Many of these cases are resolved by filing and litigating pre-file motions to suppress or exclude. As a former prosecutor, Rochelle S. Berliner understands how the system works and uses that knowledge to provide her clients who are charged with stalking or aggravated stalking with the best defense.

Rochelle S. Berliner represents men and women charged with misdemeanor and felony charges of stalking in Queens, as well as in Brooklyn, the Bronx and Manhattan. By speaking with an experienced criminal defense attorney during a free, initial consultation you can learn more about what you need to do to protect yourself against the criminal charges. Call 718-261-5600 to learn more about your legal defense options during a free, confidential consultation.


New York Stalking Information Center


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Stalking in the First Degree in New York

The charge of stalking causing physical injury (a first degree class D felony under New York Penal Law §120.60), can be understood by looking at the standard jury instructions which generally provide, in part:

  • the defendant acts intentionally by engaging in a course of conduct directed at a specific person with intent to harass, annoy or alarm a specific person;
  • the conduct is likely to cause such person to reasonably fear:
    • physical injury or serious physical injury;
    • the commission of a sex offense against;
    • kidnapping;
    • unlawful imprisonment; or
    • death of such person or a member of such person's immediate family
  • in the course and furtherance thereof, he or she intentionally or recklessly causes physical injury to such person.

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Stalking in the Second Degree in New York

The charge of stalking causing physical injury is a second degree, Class E felony under New York Penal Law §120.55. It can be understood by looking at the standard jury instructions which generally provide, in part:

  • the defendant acts intentionally;
  • the defendant is twenty-one years of age or older;
  • the defendant repeatedly follows a person under the age of fourteen or
  • engages in a course of conduct or repeatedly commits acts over a period of time
  • the conduct intentionally places or attempts to place such person who is under the age of fourteen in reasonable fear of physical injury, serious physical injury or death.

Under New York law a person is guilty of Stalking in the Second Degree using a weapon when:

  • the defendant acts with intent to harass, annoy or alarm a specific person;
  • intentionally engages in a course of conduct directed at such person;
  • the conduct is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person's immediate family; and
  • in the course of and in furtherance of the commission of such offense displays, or possesses and threatens the use of (specify item(s) listed in Penal Law § 120.55(1)(i)); or
  • displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Stalking in the second degree can also be charged when all of the elements of stalking in the Third Degree [Penal Law § 120.45(3)], have been proven, plus the prosecutor proves a prior conviction referred to in the statute. In these cases, the defendant must be arraigned with a special information alleging the previous conviction, in accordance with the
procedure set forth in CPL § 200.60(3).

At arraignment the defendant has two options:

  • If the previous conviction is admitted than the court must not make any reference to it in the definition of the crime or in listing its elements; or
  • If the defendant denies the previous conviction than the court must add this element to the definition of the crime and the list of elements.

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Stalking in Third Degree in New York

The charge of stalking (a third degree Class A misdemeanor under New York Penal Law §120.50) provides:

  • the defendant acts with the with intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person;
  • the conduct is likely to cause such person to reasonably fear one or more of the following:
    • physical injury;
    • serious physical injury;
    • the commission of a sex offense against;
    • kidnapping;
    • unlawful imprisonment; and/or
    • death of such person or a member of such person's immediate family.

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Stalking in the Fourth Degree in New York

The charge of stalking (a fourth degree, Class B misdemeanor under New York Penal Law §120.45(1)) provides:

  • the defendant acts intentionally, and for no legitimate purpose engages in a course of conduct directed at a specific person; and
  • knows or reasonably should know that such conduct is likely to cause reasonable fear of material harm to the physical health, safety or property of:
    • such person; or
    • a member of such person's immediate family; or
    • a third party with whom such person is acquainted.

The charge of stalking (a fourth degree, class B misdemeanor under New York Penal Law §120.45(2)) provides:

  • he or she intentionally, and for no legitimate purpose engages in a course of conduct directed at a specific person; and
  • knows or reasonably should know that such conduct causes material harm to the mental or emotional health of such person;
  • where such conduct consists of following, telephoning or initiating communication or contact with:
    • such person; or
    • a member of such person's immediate family; or
    • a third party with whom such person is acquainted; and
  • the actor was previously clearly informed to cease that conduct.

The charge of stalking (a fourth degree, class B misdemeanor under New York Penal Law §120.45(3)) provides:

  • he or she intentionally, and for no legitimate purpose engages in a course of conduct directed at a specific person; and
  • knows or reasonably should know that such conduct is likely to cause such person to reasonably fear that his or her employment, business or career is threatened;
  • where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business; and
  • the actor was previously clearly informed to cease that conduct.

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New York's Stalking Definitions

For the purposes of New York's stalking statutes, the following definitions apply:

The term "immediate family" is defined to include a husband, wife, ex-husband, ex-wife, mother, father, son, daughter, brother, sister, or any other person who lives or has regularly lived in the household of the other person.

The Court has found that the fear must be reasonable and not idiosyncratic. The harm (or likely harm) must be material.

  • INTENT means conscious objective or purpose. Thus, a person acts with intent to harass, annoy or alarm a specific person when his or her conscious objective or purpose is to do so.
  • A person INTENTIONALLY engages in a course of conduct directed at a specific person, or intentionally causes physical injury to a person when his or her conscious objective or purpose is to do.
  • A person acts RECKLESSLY with respect to physical injury when that person: engages in conduct which creates or contributes to a substantial and unjustifiable risk that physical injury to another person will occur, and when he or she is aware of and consciously disregards that risk, and when that risk is of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

Under New York Law, the term "specified predicate crime" include the following types of offenses:

  • violent felony offense;
  • assault in the third degree as defined in section 120.00;
  • stalking in the second degree, as defined in section 120.55;
  • stalking in the third degree, as defined in section 120.50;
  • stalking in the fourth degree, as defined in section 120.45;
  • harassment in the first degree, as defined in section 240.25;
  • aggravated harassment in the second degree, as defined in section 240.30;
  • criminal mischief in the first degree, as defined in section 145.12;
  • coercion in the second degree, as defined in section 135.60;
  • coercion in the first degree, as defined in section 135.65;
  • criminal contempt in the first degree, as defined in section 215.51;
  • arson in the third degree, as defined in section 150.10;
  • arson in the fourth degree, as defined in section 150.05;
  • menacing in the first degree as defined in section 120.13;
  • menacing in the second degree as defined in section 120.14;
  • menacing in the third degree, as defined in section 120.15;
  • criminal tampering in the first degree, as defined in section 145.20;
  • criminal mischief in the second degree, as defined in section 145.10,
  • criminal mischief in the third degree, as defined in section 145.05;
  • endangering the welfare of a child, as defined in section 260.10; and
  • any crime in another jurisdiction that involves all of the same elements of any crime listed above if the maximized sentence under that statutory scheme was in excess of one year.

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Stalking Defense Resource Center

Stalking Laws in New York- The Nation Center for Victims of Crime publishes a stalking resource center with links to various crimes of violence such as stalking, harassment and the related offenses of unlawful surveillance, and dissemination of an unlawful surveillance image.

Assistant DA explains New York's New Stalking Law- Article by a former Assistant District Attorney in New York, which explains New York's new anti-stalking legislation.

NYPD Stalking Information- Read the information published by the New York Police Department (NYPD) on crime prevention and safety plans for victims of stalking incidents.


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Law Office of Rochelle S. Berliner | Queens Stalking Defense Lawyer

Queens criminal defense attorney Rochelle S. Berliner represents men and women in New York City who face charges of stalking or cyberstalking, whether real, false or exaggerated. After nearly two decades spent in the criminal justice field (including 14 years as a Prosecutor), Rochelle S. Berliner understands domestic violence charges from both sides of the system.

Law Office of Rochelle S. Berliner represents clients in Queens, Brooklyn, The Bronx, Manhattan, and Staten Island. Call 718-261-5600 or send an online message to receive a complete review of your case during a free, confidential consultation.

Free Consultation

Submit your information using this form to schedule a free consultation with attorney Rochelle Berliner.

Name* Phone* Email* Subject* Message*

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