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Unlawful Surveillance

If you are being investigated or were arrested for unlawful surveillance (which can include allegations of “video voyeurism”) in the greater New York City area then contact attorney Rochelle Berliner. Law Office of Rochelle S. Berliner represents clients charged with unlawful surveillance throughout Queens, Brooklyn, Manhattan, The Bronx, and Staten Island. Her offices are conveniently located in Forrest Hills in Queens.

Queens Unlawful Surveillance Lawyer

Call for a free consultation to discuss your case and possible defenses to these serious criminal charges. Let Ms. Berliner bring her experience and passion to fighting the charges against you.


Info on Unlawful Surveillance Charges


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History of Unlawful Surveillance Laws in New York

In 2003, the New York legislature enacted statutes aimed at video voyeurism. The legislation was known as “Stephanie’s Law,” which referred to a woman who was secretly videotaped by her landlord through a hidden camera hidden in the smoke detector above her bed.

The following remarks were made at the signing ceremony according to a press release issued by Governor George Pataki's Office:

"'Stephanie's Law' will protect against voyeurs who destroy personal privacy and dignity by secretly videotaping or photographing unsuspecting individuals....Video voyeurs who prey on unknowing victims will no longer be able to escape with little more than a slap on the wrist -- they will now receive punishment they deserve because of this new law."


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Constitutional Challenges to Unlawful Surveillance

At least two constitutional challenges have been brought to the "unlawful surveillance" statute. First, a challenge was brought to the second degree version of the crime under Penal Law § 250:45(3). The court held that the statute was not unconstitutionally vague even though some of the terms were not defined by the legislature.

Second, a due process challenge to the presumption permitting the inference that the conduct was engaged in for "no legitimate purpose," was denied because the court found there was a “rational connection between the facts proved and the fact presumed." People v. Pacienza, 91 A.D.3d 672, 935 N.Y.S.2d 896 (2nd Dept. 2012).

Despite the fact that these two constitutional challenges were unsuccessful, other constitutional challenges might be applied to the charges against you based on the facts of your case. Filing and litigating motions to suppress and motions to dismiss are often the best way to fight the charges.


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What is Unlawful Surveillance in New York?

Two degrees of unlawful surveillance exist under New York law – second degree and first degree. The first degree version under Penal Law § 250.45 applies only to a person with a prior conviction for unlawful surveillance within the last ten (10) years. Unlawful surveillance in the first degree is a class D felony.

Therefore, the substantive crime is found in the statutory language of the second degree version of unlawful surveillance which is a class E felony under Penal Law § 250.45. Second degree unlawful surveillance can be committed in several different ways.

Under § 250.45 (Unlawful surveillance in the second degree), 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; or
  • For his or her own, or another person's sexual arousal or sexual gratification, 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; or
    • For no legitimate purpose, 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 in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person's knowledge or consent.
    • For the purposes of this subdivision, when a person uses or installs, or permits the utilization or installation of an imaging device in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a hotel, motel or inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or
  • 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, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person; or
  • For his or her own, or another individual's amusement, entertainment, profit, sexual arousal or gratification, or for the purpose of degrading or abusing a person, the actor intentionally uses or installs or permits the utilization or installation of an imaging device to surreptitiously view, broadcast, or record such person in an identifiable manner:
    • engaging in sexual conduct, as defined in subdivision ten of section 130.00 of this part;
    • in the same image with the sexual or intimate part of any other person; and
    • at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent.

See New York Penal Law § 250.45 (McKinney)(formatting and underlining added).


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Definitions in the Unlawful Surveillance Statute

Under New York Penal Law § 250.40 for unlawful surveillance, the legislature has created the following definitions:

  • Publish” means to:
    • disseminate, as defined in subdivision five of this section, with the intent that such image or images be disseminated to ten or more persons; or
    • disseminate with the intent that such images be sold by another person; or
    • post, present, display, exhibit, circulate, advertise or allows access, electronically or otherwise, so as to make an image or images available to the public; or
    • disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessible, electronically or otherwise and to make such image or images available to the public.
  • 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.
  • Disseminate” means to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person.
  • Broadcast” means electronically transmitting a visual image with the intent that it be viewed by a person.
  • Imaging device” means any mechanical, digital or electronic viewing device, camera, cellular phone or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person.
  • 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.
  • Sell” means to disseminate to another person, as defined in subdivision five of this section, or to publish, as defined in subdivision six of this section, in exchange for something of value.

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Finding an Attorney for Unlawful Surveillance in Queens, N.Y.

If you are charged with unlawful surveillance or any related sex crime, it is important not to talk with the police until after you have retained a criminal defense attorney. Anything you say can be used against you.

Queens criminal defense lawyer Rochelle Berliner is experienced in representing clients charged with offenses against public sensibilities and the right to privacy including unlawful surveillance and video voyeurism.

Call 718-261-5600 or submit an online form today for a free consultation to discuss your case and potential defenses to the charges.

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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