Defines the crime of surreptitious surveillance, a class B misdemeanor, when a person, for purposes of his or her own amusement, or for the purpose of degrading another person, or for his or her own sexual arousal, or for no legitimate purpose, surreptitiously observes by means of the unaided eye or an imaging device, intimate parts of an other person without that person's consent and at a place and time when such other person has a reasonable expectation of privacy; includes a rebuttable presumption that such surveillance under certain conditions is for no legitimate purpose; makes such offense a class B misdemeanor.
Ayes (51): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Golden, Griffo, Grisanti, Hannon, Johnson, Kennedy, Klein, Kruger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Nozzolio, O'Mara, Oppenheimer, Peralta, Ranzenhofer, Ritchie, Robach, Saland, Sampson, Serrano, Seward, Skelos, Smith, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
Nays (8): Gianaris, Hassell-Thomps, Huntley, Krueger, Montgomery, Perkins, Rivera, Squadron
Absent (1): Parker
Excused (2): Duane, Savino
TITLE OF BILL: An act to amend the penal law, in relation to the crime of surreptitious surveillance, a class B misdemeanor
PURPOSE: To provide an avenue of prosecution against individuals who, observe others by means of unaided eyes or by means of an imaging device a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a spa, hotel, motel or inn, there is a presumption that such person did so for no legitimate purpose.
SUMMARY OF PROVISIONS: Defines the crime of surreptitious surveillance; rebuttable presumption that such surveillance under certain conditions is for no legitimate purpose.
Adds section 250.70, surreptitious surveillance which states that a person is guilty when for no legitimate purpose such person intentionally observes an individual with unaided eyes or with an imaging device, a person dressing or undressing or the sexual or other intimate parts of such person without their consent or knowledge at a place and time when that person has a reasonable expectation of privacy. These areas include: in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a spa; hotel, motel or inn.
Defines surreptitious surveillance as a class B misdemeanor.
JUSTIFICATION: "Peeping Tom" type crimes are difficult to prosecute as there is no particular law that covers each potential situation. An example of this recently occurred in Niagara County where the district attorney's office prosecuted a case, in December 2004, where the defendant was accused of deliberately looking over the top of a tanning bed wall at a young girl who was completely nude. He was charged with disorderly conduct but a non jury trial found him innocent. While the Judge found the defendant's actions reprehensible, the prosecution did not prove that the defendant's conduct did not create a Public disturbance. The Court of Appeals has held that disorderly conduct must be of a public not a private matter. The 1003 video voyeurism law "Stephanie's Law" did not apply because no mechanical or electronic device of any kind was used. "Stephanie's Law" also is not penal law. This bill will provide an avenue for prosecution of these cases where an individual watches someone for entertainment, amusement, to degrade someone or for sexual satisfaction - for no legitimate purpose.
LEGISLATIVE HISTORY: S.257-A of 2007/2008; Passed Senate S.3336/A.5438 of 2005/2006; Passed Senate S.1405 of 2009/2010; Referred to Codes
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the first of November in the year it becomes law.
STATE OF NEW YORK ________________________________________________________________________ 256 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________Introduced by Sens. MAZIARZ, ALESI, FLANAGAN, LARKIN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to the crime of surreptitious surveillance, a class B misdemeanor THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 250.40 of the penal law, as added by chapter 69 of the laws of 2003 and subdivision 2 as amended by chapter 291 of the laws of 2007, is amended to read as follows: S 250.40 Unlawful surveillance; definitions. The following definitions shall apply to sections 250.45, 250.50, 250.55
[and], 250.60 AND 250.70 of this article: 1. "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. 2. "Imaging device" means any mechanical, digital or electronic view- ing device, camera, cellular phone or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person. 3. "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. 4. "Broadcast" means electronically transmitting a visual image with the intent that it be viewed by a person. 5. "Disseminate" means to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01645-01-1 S. 256 2
6. "Publish" means to (a) disseminate, as defined in subdivision five of this section, with the intent that such image or images be dissem- inated to ten or more persons; or (b) disseminate with the intent that such images be sold by another person; or (c) post, present, display, exhibit, circulate, advertise or
[allows]ALLOW access, electronically or otherwise, so as to make an image or images available to the public; or (d) disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessi- ble, electronically or otherwise and to make such image or images available to the public. 7. "Sell" means to disseminate to another person, as defined in subdi- vision five of this section, or to publish, as defined in subdivision six of this section, in exchange for something of value. S 2. The penal law is amended by adding a new section 250.70 to read as follows: S 250.70 SURREPTITIOUS SURVEILLANCE. 1. A PERSON IS GUILTY OF SURREPTITIOUS SURVEILLANCE WHEN SUCH PERSON, FOR PURPOSES OF HIS OR HER OWN AMUSEMENT OR ENTERTAINMENT OR FOR THE PURPOSE OF DEGRADING OR ABUSING ANOTHER PERSON, OR FOR HIS OR HER OWN SEXUAL AROUSAL OR SEXUAL GRATIFICATION, OR FOR NO LEGITIMATE PURPOSE INTENTIONALLY AND SURREPTITIOUSLY OBSERVES BY MEANS OF HIS OR HER UNAIDED EYES, OR BY MEANS OF AN IMAGING DEVICE, A PERSON DRESSING OR UNDRESSING OR THE SEXUAL OR OTHER INTIMATE PARTS OF SUCH PERSON WITHOUT SUCH PERSON'S KNOWLEDGE OR CONSENT AND AT A PLACE AND TIME WHEN SUCH PERSON HAS A REASONABLE EXPECTATION OF PRIVACY. 2. FOR THE PURPOSES OF THIS SECTION, WHEN A PERSON SURREPTITIOUSLY OBSERVES BY MEANS OF HIS OR HER UNAIDED EYES OR BY MEANS OF AN IMAGING DEVICE A PERSON IN A BEDROOM, CHANGING ROOM, FITTING ROOM, RESTROOM, TOILET, BATHROOM, WASHROOM, SHOWER OR ANY ROOM ASSIGNED TO GUESTS OR PATRONS IN A SPA, HOTEL, MOTEL OR INN, THERE IS A REBUTTABLE PRESUMPTION THAT SUCH PERSON DID SO FOR NO LEGITIMATE PURPOSE. SURREPTITIOUS SURVEILLANCE IS A CLASS B MISDEMEANOR. S 3. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.