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The Stalking Statute And Email: Muddling Through 21st Century Issues

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.


Regular readers of my column know that every summer I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris. During the course of my research for the update, I read thousands of criminal law cases handed down over the past year with an eye toward locating those holdings that affect substantive issues relating to the Penal Code. And, given my passion for the intersection of law and technology, I also take an interest in those cases where technology impacts the Penal Code. People v. Marion, 49 Misc.3d 562 (Crim. Ct. City of New York, 2015) is just such a case.

One of the issues in People v. Marion is whether the complainant's work e-mail address constituted a “place of employment or business” for purposes of the stalking statute. The relevant portion of the accusatory instrument alleged the following:

From January 17, 2015 to April 17, 2015, I have received over 100 Instagram messages from the defendant. Specifically, one of the messages stated, “I wish you would let me find you tonight” and “I'll always be by your side.” From January 17, 2015 to April 8, 2015, I have received approximately 10–15 emails from the defendant at both my work and personal email addresses. From January 17, 2015 to January 19, 2015, I have received approximately 80 [calls] from a phone number which I know belongs to the defendant.

In reaching its decision, the court noted that the only allegation that amounted to a possible violation of\of Penal Law § 120.45(3), the stalking statute, was the assertion that the defendant sent repeated emails to the complainant at her work email address. Next, the court explained that the People were required to include allegations in the accusatory instrument establishing that the defendant “intentionally, and for no legitimate purpose, engage(d) in a course of conduct directed at a specific person, and (knew) or reasonably should know(n) that such conduct ... is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.”

The court concluded that the allegations against the defendant were insufficient since the “‘fair import’ of the phrase ‘place of employment or business’ is that it refers to an actual, physical location.” The court reasoned that subsection 2 of Penal Law s.120.45 sufficiently addressed the conduct alleged since included the actions of “repeatedly emailing a person with no legitimate purpose other than to cause her emotional harm.”

I believe that the court missed the mark with this conclusion, both in terms of: 1) its assertion that subsection 2 covered the alleged conduct and 2) its conclusion that subsection 3 required that the conduct occur at the physical workplace.

First, subsection 2 requires a higher standard of harm —that material harm be shown — whereas subsection 3 only requires that the conduct is “likely to result in harm.” Undoubtedly the reason that a lower standard of harm was required for subsection 3 is due to the fact that individuals have more at stake when they are stalked at work; not only are they emotionally affected, they may be financially affected as well. Thus, a lower level of harm is required to be shown.

So the court’s assertion that subsection 2 necessarily covers all situations where emails are sent to a person’s business email address is incorrect. A person may receive emails at a business address that are “likely to result in harm” due to the possibility that the employer may discover them but do not actually result in harm as required by subsection 2.

Next, the statute specifically forbids repeated contact that includes “initiating communication…at such person’s place of employment or business.” Sending an email to an individual’s work address undoubtedly constitutes the act of communicating with someone at their place of business. That’s the entire point of a “work” email address versus a personal one. A work email address is where people receive the vast majority of communications relating to their work, and oftentimes, employers have full access to all emails received in that account.

For those reason, I submit that the court interpreted this subsection far too literally, through a narrow, 20th century lens. I am confident that this myopic view of Penal Law 125.45(3) will not withstand the test of time.


Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at