People v. David W. Schreir
AD4 order dated June 8, 2012, affirming judgment of conviction. Decision below: 96 A.D.3d 1453; 946 N.Y.S.2d 373. Read, J., granted leave October 24, 2012.
ISSUE PRESENTED: The defendant was convicted of second-degree unlawful surveillance (PL §250.45) for videotaping the victim through a window as she stood naked in her bathroom. Whether the evidence was sufficient to establish that the recording was (a) surreptitious, and (b) made at a time when "a reasonable person would believe that he or she could fully disrobe in privacy."
Factual Background: The defendant held a small camera above his head at 7:30 am on Christmas Eve day to record his neighbor through the window in her front door as she was naked in her second floor bathroom at the top of the stairs.
Issue before the Court: Was there legally sufficient evidence to support the defendant’s conviction for unlawful surveillance in the second degree.
Held: Yes. The element requiring the recording to be made “surreptitiously” was satisfied by legally sufficient because, under the common meaning of "surreptitious" — something done by “stealth” or “clandestinely” — the defendant so acted here. Although he was potentially exposed to public view because he was standing outside his neighbor's townhouse, he engaged in his conduct at a pre-dawn hour, was holding a small black camera in a black-gloved hand, and had to hold it over his head in order to get the proper angle. Surreptitious conduct does not have to entirely imperceptible to all members of the general public.
CAL Observes: Voyeurs beware. The Court’s unanimous decision establishes a broad interpretation of surreptitious. Some of the facts used by the Court in support of its holding are something of a stretch. Holding a camera over one’s head in order to aim it through a window would appear to make the conduct open, even brazen, not stealthy.