Lawyers Manual - Unified Court System

196 Hilary Sunghee Seo
Overview of Noteworthy Features
There are several features of New York’s anti-stalking statute worth
highlighting. First, the course of conduct requirement does not specify a time
frame. The series of proscribed conduct can take place over a few hours, the
course of a day or over a few months. Second, subsection one of Stalking in the
Fourth Degree — which not only is an independent crime, but may be a crucial
building block to making out the elements of the more serious stalking crimes
— does not limit stalking behavior to a pre-selected list of actions. This reflects
acknowledgement by the legislatures that stalking behavior may manifest itself
in novel and, indeed, ingenious ways. Third, the statute shifts the focus from the
stalker’s specific intent to annoy, harass, threaten or alarm, to the impact of the
stalker’s actions on a reasonable person. The stalker’s specific intent may be
difficult to prove in cases in which the stalker claims that he was acting out of
love, concern or some other motive. Fourth, only some of the least serious
charges of stalking require that the stalker be “clearly informed to stop.”
Typically in stalking cases, even if the victim does not verbally tell the stalker to
stop, her behavior and the context taken as a whole would make it eminently
clear to a reasonable person that the stalker’s attentions are unwelcome and his
behavior intimidating and threatening. Fifth, the statute covers not only the
victim but his or her immediate family and acquaintances. It defines immediate
family as spouse, former spouse, parent, child, sibling or any other person who
regularly resides or has regularly resided in the household of the victim, a much
broader definition than the definition of family used for family offenses. 15
Moreover, the resulting harm is inclusive. For example, the proscribed conduct
includes acts likely to cause a reasonable person to fear (i) material harm to his
or her “physical health, safety or property” or (ii) that his or her job, business or
career is threatened. 16 This is a much broader set of harms than the “fear of
physical injury” or “fear of serious physical injury” required by the menacing
and harassment statutes. In sum, the comprehensive approach of the stalking
statutes makes it possible to sanction stalking at its earlier stages, before it
escalates into more violent behavior.
The facts of People v Stuart, a recent New York Court of Appeals case,
demonstrate this point well. 17 In Stuart, the defendant stalked a young woman
named Tracy DiNunzio, a stranger to him, by repeatedly coming into her visual
and physical presence. 18 He did this by following her at a close distance, lying
in wait for her and suddenly appearing at a close distance when she emerged
from stores and buildings, standing close to her and making his presence felt at
cafes and stores, and standing outside the window of her gym and her bank and