Stalking, the "Work Email Address" and "Place of Employment"

This post examines an opinion the Criminal Court – City of New York issued on July 14, 2015:  People v. Marian, 2015 WL 4231664.  The opinion begins by noting that

[t]his Court occasionally is presented with an accusatory instrument that alleges the use of electronic technology in a way that is not covered by the particular Penal Law section charged. See, e.g., People v. Stone, 43 Misc.3d 705, 982 N.Y.S.2d 733 (Criminal Court -- New York County 2014) (no `display’ of a weapon where defendant texted a picture of himself holding a knife); People v. Barber, 42 Misc.3d 1225(A), 992 N.Y.S.2d 159 (Criminal Court - New York County 2014) (dismissing `revenge porn’ prosecution). The information here, albeit in a small way, presents the same type of issue.

People v. Marian, supra.

The Criminal Court went on to explain that on

January 23, 2015, [Monique Marian] accused the complainant, her former girlfriend, of assaulting her. [Marian] later admitted that the accusation was untrue and the assault charge against the complainant was dismissed and sealed.

Between January and April of 2015, [Marian] bombarded the complainant with text messages, Instagram messages and emails, both to the complainant's personal and work email addresses, all asserting her desire to be with the complainant.

During this same period, the complainant saw [Marian] waiting outside of the complainant's apartment building and, on three different occasions, [Marian] found the complainant in a bar, even though the complainant had not told [Marian] she would be there. On one of those occasions, the complainant grabbed [Marian] by the neck and, after the complainant asked [her] to leave, [Marian] waited outside the bar for two hours then followed the complainant for two blocks. On another occasion, [Marian] again followed the complainant for two blocks after the complainant left the bar, telling her, `I won't leave you alone. I'll never stop.’

[Marian’s] conduct caused the complainant to fear for her safety.

People v. Marian, supra.

The court then outlines the “legal proceedings” in the case, which led to this appeal:

[Marian] was arraigned April 9, 2015, on a misdemeanor complaint charging her with two counts of stalking in the fourth degree, in violation of [New York] Penal Law § 120.45(2) and § 120.45(3). The Court released [Marian] on her own recognizance and adjourned the case for conversion.

On April 27, 2015, the People filed a superseding information charging [Marian] with falsely reporting an incident in the third degree, [New York] Penal Law § 240.50(3)(a), and two counts of stalking in the fourth degree, in violation of [New York] Penal Law § 120.45(2) and § 120.45(3).

[Marian] filed the instant motion on May 18, 2015. The People declined to respond, and the matter has been sub judice since then.

People v. Marian, supra. 

The “instant motion” was a motion to dismiss the New York Penal Law § 120.45(3) charge against Marian.  People v. Marian, supra. 

The Criminal Court then analyzed the “superseding information, sworn out by the complainant,” which was the focus of the motion to dismiss.  People v. Marian, supra.  It began by explaining that the superseding information provided that

[o]n January 23, 2015, at approximately 10:00 PM, I was arrested because [Marian] claimed I assaulted her. I was arraigned in New York County Criminal Court on January 24, 2015, before Judge Sokoloff. [Marian] later admitted that no assault had occurred and that she made the report so that I would not get an order of protection against her. On March 30, 2015, the District Attorney's Office dismissed the assault case against me, and it was immediately sealed.

From January 17, 2015 to April 17, 2015, I have received over 100 Instagram messages from [Marian].  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 [Marian] 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 [Marian].

On February 25, 2015, at approximately 11:00PM, I entered the Bowery Electric at 327 Bowery. [Marian] arrived approximately one hour later and grabbed me by the neck, startling me. I did not tell [her] I was at that location. After I asked [Marian] to leave, she waited for me outside the location for approximately two hours. When I attempted to leave, [Marian] followed me for approximately two blocks.

On March 24, 2015, at approximately 9:00PM, I entered Hotel Chantelle located at 92 Ludlow Street. [Marian] arrived at 10:00PM and approached me inside the bar. I did not tell [her] I was at that location and when I attempted to leave the bar, [Marian] followed me for approximately two blocks. [She] stated to me in substance, ‘I won't leave you alone. I'll never stop.’

On March 30, 2015, at approximately 1:15AM, [Marian] came to my apartment building and stood outside waiting on me.

On April 8, 2015, at approximately 8:50PM, at 106 Norfolk Street, I entered the bar at that location to meet a friend. [Marian] entered at approximately 10:00PM. I did not tell [her] I was at that location.

[Marian’s] above described conduct has caused me to fear for my physical health and safety.

People v. Marian, supra. 

The Criminal Court then began its analysis of Marian’s motion to dismiss.  People v. Marian, supra.  It began by explaining that the

Court agrees with [Marian] that the information does not make out a prima facie case of stalking in the third degree under N.Y. Penal Law § 120.45(3). The conduct alleged in the information fails to make out the statutory requirement that the conduct take place at the complainant's `place of employment or business.’ The remaining counts, however, are facially sufficient.

People v. Marian, supra. 

The Criminal Court began its analysis of why the stalking in the third degree count was not sufficient by explaining that

a misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (Court of Appeals of New York 2014); People v. Alejandro, 70 N.Y.2d 133, 511 N.E.2d 71 (Court of Appeals of New York 1987). Accordingly, a misdemeanor information must set forth `nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.’ People v. Kalin, 12 NY3d 225, 906 N.E.2d 381 (Court of Appeals of New York 2009). . . . This is known as `the prima facie case requirement.’ People v. Kalin, supra.

The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 504 N.E.2d 1079 (1986). Rather, the information need only contain allegations of fact that `give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.’ People v. Casey, 95 N.Y.2d 354, 740 N.E.2d 233, 236 (Court of Appeals of New York 2000). A court reviewing for facial insufficiency must subject the allegations in the information to a `fair and not overly restrictive or technical reading,’ People v. Casey, supra, assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. [N.Y.Criminal Procedure Law] §§ 100.40, 100.15 People v. Jackson, 18 NY3d 738, 967 N.E.2d 1160, 1166–67 (2012). . . .

People v. Marian, supra. 

The court then applied the above analysis to the facts in this case, noting that the

only conduct alleged in the information that has anything at all to do with the complainant's employment, the gravamen of the offense made out by Penal Law § 120.45(3), is the allegation that [Maria] sent ten to fifteen emails to the complainant's work email address. This does not make out a violation of Penal Law § 120.45(3), which requires the People to establish that the

`defendant intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know 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.’

Emphasis added. Penal Law provisions are to be construed `according to the fair import of their terms to promote justice and effect the objects of the law.’ N.Y. Penal Law § 5.00. It would be contrary to the required method of statutory interpretation to find that a person's work email address is her `place of employment or business.’

People v. Marian, supra. 

The Criminal Court then explained why it was finding that “an email address is not a place of employment or a business.” People v. Marian, supra.  It began by noting that

[t]he `fair import’ of the phrase `place of employment or business’ is that it refers to an actual, physical location. New York courts consistently use the phrases `place of employment’ and `place of business’ in this way. Thus, for example, in Rosario v. NES Medical Services of New York, P.C., 105 AD3d 831, 963 N.Y.S .2d 295 (N.Y.Supreme Court – Appellate Division 2013), the court noted that a person's `actual place of business’ for service of a summons and complaint under [NewYork Civil Practice Law and Rules] 308(2) is `where the person is physically present with regularity, and that person must be shown to regularly transact business at that location.’

Similarly, in Hille v. Gerald Records, 23 N.Y.2d 135, 242 N.E.2d 816, 295 N.Y.S.2d 645 (Court of Appeals of New York 1968), a record executive's home was his `place of employment’ for purposes of a workers' compensation claim because he frequently took tapes home for editing. Such actual, physical locations are simply not the same as an email address. In fact, New York courts occasionally allow service to an email address as an alternative method of service, under [New York Civil Practice Law and Rules] 308(5), which indicates that an email address is treated as something distinct from an actual, physical location. E.g., Keith X. v. Kristin Y., 124 Appellate Division 3d 1056, 2 N.Y.S.3d 268 (New York Supreme Court – Appellate Division 2015).

People v. Marian, supra. 

It went on to explain that

[a]lthough this Court has concluded that the [New York Civil Practice Law and Rules]  does not apply in criminal cases, People v. DeFreitas, 2015 WL 1897624 (Criminal Court – New York County April 27, 2015), it nevertheless makes good sense, absent a contrary instruction from the Legislature, to interpret the same phrase in the same way across all areas of practice.

Thus, given New York courts' consistent view that the phrases `place of employment’ and `place of business’ refer only to a physical location, this Court will apply that same definition here. It would stretch the “fair import” of the phrase beyond all recognition to consider a complainant's work email address as her `place of employment or business’ for purposes of New York Penal Law § 120.45(3).

Nor would likening an email address to an actual, physical location either `promote justice’ or `effect the objects’ of § 120.45(3). Section 120.45 was added to the Penal Law in 1999 because `criminal stalking behavior, including threatening, violent or other criminal conduct’ had by then “become more prevalent in New York state in recent years.’ L.1999, c. 635, § 2 (discussing the Legislature's intent).

While the inclusion of a provision dealing with stalking in connection with the victim's employment is not specifically discussed in the legislative history to § 120.45, the overall goal of the legislation was to `recognize the damage to public order and individual safety caused by’ stalkers, in terms of both the `emotional and physical harm’ caused to the victims. L.1999, c. 635, § 2.

People v. Marian, supra. 

The Criminal Court then noted that it

recognizes that stalking behavior in connection with a persons' employer can poses risks of emotional and physical harm to the victim equivalent to the other forms of stalking covered by the other subsections of § 120.45.

Nevertheless, including an email address within the purview of the phrase a `place of employment or business’ does not specifically further either justice or the statute's goals. The conduct of repeatedly emailing a person with no legitimate purpose other than to cause her emotional harm is completely subsumed within the conduct specified in § 120.45(2), which covers `telephoning or initiating communication or contact with’ the victim, including contact by email, irrespective of whether the email is sent to a personal or a work email address.

Accordingly, for these reasons, the Court concludes that a person's work email address is not her `place of employment or business’ for purposes of the stalking statute.

People v. Marian, supra. 

The Criminal Court therefore granted Marian’s “motions to dismiss the count charging her with violating New York Penal Law § 120.45(3)” but denied the motion  “with respect to the remaining counts” in the information filed against her. People v. Marian, supra. 

You can, if you are interested, read more about the case in the news story you can find here.