Lawyers Manual - Unified Court System

Taking Stalking Seriously 197
staring at her. 19 During one of their first encounters at a coffee shop, Stuart asked
DiNunzio to sit down and have a cup of coffee with him. When she declined, he
asked her out to dinner, and when she refused that offer, he presented her with a
heart-shaped box of chocolates and a hand-drawn picture of her with her name
handwritten at the bottom. DiNunzio testified that she “made it clear” to the
defendant that she did not want any further contact with him, but when he
insisted, she took his gifts and left the shop. 20 As would be expected of a
reasonable person, DiNunzio felt “uncomfortable” and “creeped out” in the
beginning, but increasingly felt “very scared,” “very unsafe in her neighborhood”
and generally, very threatened. 21 DiNunzio significantly altered her daily
routines to avoid Stuart by, for example, not going out by herself or by staying
over at a friend’s house more frequently. 22
It appears from the record that the defendant never overtly threatened
DiNunzio verbally or physically. Moreover, although she communicated through
her body language that the Defendant’s gestures were unwelcome, it is unclear
whether she told him explicitly to stop. Under New York’s harassment and
menacing statutes, with the exception of Harassment in the Second Degree, which
is only a violation, DiNunzio would have had to show that the stalker intentionally
placed or attempted to place her in reasonable fear of physical injury, serious
physical injury or death. Given the facts, she probably would not have been
successful. She would have had to wait until her stalker escalated his behavior.
Finally, it should be noted that family court and criminal court have
concurrent jurisdiction over all domestic violence stalking cases. Courts must
consider prior stalking convictions as a factor when deciding whether or not
firearms should be ordered surrendered and licenses revoked or suspended. 23
Moreover, certain “bump-ups” in charging may be applied to repeat offenders.
For example, a person is guilty of Stalking in the Third Degree if he or she has
committed the crime of Stalking in the Fourth Degree against three or more
persons for which the stalker previously has not been convicted, or commits the
crime of Stalking in the Fourth Degree within ten years of another Stalking in
the Fourth Degree conviction. 24
Assisting Stalking Victims
Because stalking behaviors are varied, unpredictable and may involve a
combination of criminal and (on their face) non-criminal acts, stalking victims
may find it difficult to recognize that they are victims of crimes and effectively