For reasons explained below, a jury convicted Michael Piznarski of four counts of unlawful surveillance in violation of New YorkPenal Law § 250.45 and two counts of coercion in the second degree in violation of New York Penal Law § 135.60, after which the judge who had the case sentenced him to “a prison term of 1 to 3 years on the unlawful surveillance conviction relating to victim A, concurrent nine-month sentences on the two coercion convictions, and three concurrent one-year sentences for the unlawful surveillance convictions relating to victim B.” People v. Piznarski, 2013 WL 6284001 (New York Supreme Court – Appellate Division 2013).
You can read more about the facts, about Piznarski and about the charges in this case in the articles you can find here and here.
The Appellate Division begins its opinion by noting that “[t]his case, apparently one of first impression, involves the application of New York's unlawful surveillance statute . . . to the prosecution of a defendant accused of video recording his sexual activities without the knowledge or consent of the other participants.” People v. Piznarski, supra.
According to the court, this is how the prosecution arose:
In the fall of 2009, [Piznarski] and victim A, both college students attending the same university, began dating. In March 2010, [Piznarski] used his digital camera to secretly record victim A performing oral sex on him while they were in the bedroom of his apartment. [He] and victim A broke up in August 2010 and, although their relationship became strained, they continued to have contact with one another following their return to school that fall.
In September 2010, [Piznarski] informed victim A -- through a series of Facebook messages -- that he possessed the March video; he described the video's content and insinuated that he was going to upload it to a website and identify victim A by name. According to victim A, she was distraught over the messages and asked [him] to delete the video.
Thereafter, on December 6, 2010, victim A went to [Piznarski’s] apartment to discuss their relationship. Victim A claimed [he] became irate, started berating her and ultimately threatened to disseminate the video and humiliate her unless she agreed to have one final sexual encounter with him while he recorded it. Victim A initially refused, but eventually acceded to [Piznarski’s] demands and accompanied him into his bedroom.
While there, [he] began recording victim A and disrobed her. Ultimately, victim A refused to have sexual intercourse with [Piznarski], but instead acquiesced to [his] video recording her while she performed oral sex on him.
After leaving [Piznarski’s] apartment, victim A disclosed the incident to her roommate and reported it to campus security and to the local police. The police obtained and executed a warrant to search [his] apartment and retrieved a small digital camera, an ipod, an external hard drive and a laptop computer.
A search of [Piznarski’s] laptop revealed multiple video files, including videos of the March 2010 and December 2010 sexual encounters between victim A and [Piznarski]. A third file was also found, which consisted of a video of [him] having sex with victim B. After learning the identity of victim B, a police investigator contacted her and she confirmed she had a sexual encounter with [Piznarski] in November 2010, but denied knowing that he had recorded it.
People v. Piznarski, supra.
Piznarski appealed, arguing, among other things that “the unlawful surveillance statute does not apply to his conduct at issue here.” People v. Piznarski, supra. The court begins its analysis of this issue by noting that in 2003, “the Legislature created the crime of unlawful surveillance in the second degree . . . as part of a group of laws criminalizing video voyeurism.” People v. Piznarski, supra. It also pointed out that New York Penal Law § 250.45 provides as follows:
`A person is guilty of unlawful surveillance in the second degree when:
1. For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs . . . an imaging device to surreptitiously view . . . or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or
2. For his or her own, or another person's sexual arousal or sexual gratification, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or
3. For no legitimate purpose, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person in a bedroom . . . without such person's knowledge or consent’.
People v. Piznarski, supra. Piznarski was “convicted of unlawful surveillance under § 250.45(3) with respect to victim A, and under all three subdivisions with respect to victim B”. People v. Piznarski, supra.
The Appellate Division was
unpersuaded by [Piznarski’s] argument that the statute does not apply to the video recording of consensual sexual activity by one of the parties involved in that activity -- even if the recording is done without the knowledge or consent of the other party -- and that the statute, instead, was intended to cover only the actions of a `PeepingTom.’
People v. Piznarski, supra. It pointed out that there
is nothing in the plain language of the statute that would preclude its application to the surreptitious recording of a consensual sexual encounter by one of the participants. . . . In fact, the statute's legislative history supports the conclusion that the Legislature intended its application to defendant's conduct. . . . A memorandum in support of the legislation described examples of various circumstances that necessitated the enactment of this law, one of them being that:
`Women throughout . . . New York State have unknowingly been videotaped while engaging in sexual relations. Several women in this category have attempted to file complaints alleging that their partner made these videotapes without their knowledge or permission and are now showing them to friends and others, and even posting the video footage on the Internet. These women were turned away without a remedy’ (Governor's Memorandum approving L 2003, ch 69, 2003 N.Y. Legis Ann, at 54).
People v. Piznarski, supra. The court therefore rejected Piznarski’s first argument. People v. Piznarski, supra.
Piznarski next argued that the statute was unconstitutionally void for vagueness. People v. Piznarski, supra. As Wikipedia notes, “[i]n American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand.” As the Appellate Division noted, a
two-part test is used to determine whether a statute is unconstitutionally vague; first, `the court must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute’ and, `[s]econd, the court must determine whether the enactment provides officials with clear standards for enforcement’.
People v. Piznarski, supra (quoting People v. Stuart, 797 N.E.2d 28 (Court of Appeals of New York(2003)).
Piznarski first challenged “the element of surreptitiousness, arguing that it cannot be established in this case because the camera was in plain view and both victims were aware of [his] presence in the room.” People v. Piznarski, supra. The court did not agree, noting that
the statute prohibits the use of a device to surreptitiously record, without limitation as to the location of the device. . . . The term `surreptitious’ connotes a secretive act and is defined as `obtained, done, made, etc., by stealth; secret or unauthorized; clandestine[;] . . . acting in a stealthy way’ (Random House Unabridged Dictionary [online version] ).
We discern nothing in the plain language of the statute that restricts its application to circumstances in which a defendant `spies’ on the victim from another location while the victim is being recorded. Thus, in this case, the fact that both [Piznarski] and the camera were visible in [his] room is immaterial, as [he] was using the camera in a surreptitious manner. In our view, inasmuch as the statute merely requires that the recording be surreptitious, it provided fair notice to defendant that his actions were prohibited. . . .
People v. Piznarski, supra (emphasis in the original).
The court also rejected Piznarski’s argument that the prosecution’s “interpretation of the element of surreptiousness impermissibly renders superfluous the requirement that the recording be without a victim's knowledge or consent.” People v. Piznarski, supra. The Appellate Division explained that
[i]n addition to establishing that neither victim A nor victim B was aware of or consented to defendant recording them while having sex, the People also tendered proof of actions by [Piznarski] demonstrating that he used the camera surreptitiously. The video of victim B shows that [he] began to record and position the camera on his desk while victim B was outside his bedroom. Similarly, the March 2010 video of victim A shows that [he] turned the camera on while victim A was performing oral sex and had her eyes closed.
[He] did not call the victims' attention to the camera or to the fact that he was recording them. This evidence, which establishes the element of surreptitiousness, can be distinguished from the evidence that proves the victims' lack of knowledge or consent and gives it independent meaning and effect. . . . Considering that the legislative history confirms that the statute was designed to proscribe this type of conduct . . ., we do not find any element to be superfluous.
People v. Piznarski, supra.
And the Appellate Division rejected Piznarski’s argument that “the phrase `reasonable expectation of privacy’ is impermissibly vague. People v. Piznarski, supra. It noted that
[f]or purposes of Penal Law § 250.45(1) and (2) -- which prohibit the surreptitious use of a device to record an individual at `a place and time when such person has a reasonable expectation of privacy’ -- such phrase is defined as encompassing circumstances in which `a reasonable person would believe that he or she could fully disrobe in privacy’ (NewYork Penal Law § 250.40 ).
When a person knowingly undresses and engages in sexual relations with another person, he or she should be able to do so with the reasonable expectation that his or her actions are limited to that particular time and place and that his or her naked body and/or sexual acts will not be memorialized and/or repeatedly viewed at any time by the other person present or by anyone else with whom that person decides to share the recordings. . . . Stated another way, `reasonable people expect to be safe from casual or hostile intrusion[ ] within a bedroom’ and, when `engaged in sexual relations in a bedroom of a private home[,] expect to be free from surveillance’ (Lewis v. LeGrow, 258 Mich.App 175, 670 N.W.2d 675 (Michigan Court of Appeals 2003)). It is of no moment that the unwanted intrusion came from the person with whom the victim engaged in sex.
People v. Piznarski, supra.
The court then explained that
[h]ere, victim B testified that she believed she was engaging in a private sexual act with a person she trusted and, had she been asked, she would not have agreed to be videotaped while engaging in such act. In our view, the privacy element, when `[c]onsidered in light of the clear and understandable elements of the criminal conduct,’ gave defendant `adequate notice and law enforcement authorities sufficient guidance’ (People v. Stuart, 100 N.Y.2d 412, 797 N.E.2d 28 (Court of Appeals of New York 2003)) and we therefore reject [Piznarski’s] vagueness challenge in this regard.
People v. Piznarski, supra.
For these and other reasons, the Appellate Division affirmed Piznarski’s conviction and sentences. People v. Piznarski, supra.