Public Awareness
OPDV Bulletin:
Prosecuting the Stalker: A Success Story
By Carmelo Laquidara- Assistant District Attorney, Rensselaer County District Attorney's Office
The simple act of putting pen to paper can result in a felony stalking conviction, even if those acts are committed from the confines of a jail cell. That was the lesson learned for a Rensselaer County man convicted of Stalking in the Second Degree, a class E felony, on July 11, 2002. (People v. Gregory Brown, 190 Misc. 2d 710, 742 N.Y.S. 2d 480)
Gregory Vincent Brown was charged with felony stalking for sending five separate letters to his ex-girlfriend over a period of seven months. The defendant wrote the letters from his jail cell in Albany County where he was serving a sentence for prior crimes committed against her. While these letters did not contain one express threat of violence, they did contain sexual references and intimate details about their past relationship.
The defendant was charged with Stalking in the Second Degree pursuant to Section 120.55, Subdivision 2, of the Penal Law of the State of New York which requires, among other things, that the defendant previously have been convicted of a specified predicate crime within the past five years involving the same victim of the alleged stalking. In this case, the defendant had a previous conviction for Aggravated Harassment in the Second Degree involving the same victim. In fact, the defendant had been previously convicted of five different misdemeanor crimes involving his ex-girlfriend since 1999, after which she obtained several orders of protection for her safety. These orders of protection were violated when the defendant wrote the letters from jail, resulting in his being convicted of several counts of Criminal Contempt in the Second Degree along with the felony stalking conviction.
The stalking laws were enacted in 1999, leaving little time for a body of case law to develop addressing the intricacies of the statute. This case was won, in large part, during the pre-trial motion phase, in which two important legal issues were decided.
First, the defense moved to dismiss the stalking charge, arguing that the defendant's actions were not likely to cause his ex-girlfriend reasonable fear since when he wrote the letters, he was locked in a jail cell and therefore unable to physically harm her. County Court Judge Patrick J. McGrath, relying heavily on the legislative intent of the newly created statute, disagreed. His opinion stated, "Fear by definition has a component of anticipated or expected harm. Therefore, the fact that the actor may not have been physically capable of immediately carrying out the physical act does not preclude a charge of stalking since the anticipation of the injury creates a current and measurable fear in the victim." This was critical. Our impressions of stalking behavior, shaped in large part by the media, usually include some aspect of following or lying in wait for the victim. One of the biggest obstacles to overcome during the trial was convincing the jury that someone could stalk a person from a jail cell by writing letters.
The second major legal issue was whether the statute requires that the defendant needs to intend to cause the victim fear of harm. Judge McGrath noted that the stalking statute requires only that the defendant intentionally engage in a course of conduct likely to cause such fear in the victim; actual fear that the victim will be physically harmed is not a requirement of the statute. Again the judge relied heavily on the legislative intent of the statute and also a previous stalking case decided in 2001. (People v. Starkes, 85 Misc. 2d, 186)
The fact that the defendant need not intend to cause the victim to fear physical harm was especially critical in this case. The defendant argued at trial that he was merely trying to rekindle a love gone bad; he never intended to cause her fear. His argument was supported by the uncontroverted fact that he never once threatened, intimidated or used physical force against her during their one and a half year relationship. However, the defendant's repeated criminal actions against the victim since their breakup, his blatant disregard for orders of protection, as well as the sexually explicit letters, led her to believe that she was in real danger of physical harm, a fear she expressed throughout her testimony.
What is reasonable fear? In a vacuum, the specific charges the defendant was on trial for - the letter writing - might not appear very threatening. However, a pre-trial Molineaux motion permitted the introduction of evidence of previous bad acts committed by the defendant towards his victim, including the prior convictions involving her. The jury was in a better position to decide whether her fears were reasonable when viewing the relationship in its entire context. They could see that the defendant did not stop his criminal actions towards this victim despite being convicted of several crimes involving her and having several orders of protection issued against him. These facts go directly to whether her fear of physical harm was reasonable.
By enacting the current stalking laws, Governor Pataki and the Legislature gave prosecutors a powerful tool to combat persistent harassing behavior that often leads to immeasurable emotional harm to the victim of a stalker. The statute shifts the focus from the intent of the defendant to where it should be: the effect the defendant's actions have on the victim of this serious crime.
Editor’s Note: October 25, 2006
Paragraph six of the original article has been revised to delete a quote attributed by the author to Judge McGrath in his written decision. Additionally, the editor’s previous note provided that on August 13, 2002, Mr. Brown was sentenced to 2-4 years in State prison and that Mr. Brown appealed his decision. On December 2, 2004, the Appellate Division, Third Department, affirmed the lower court judgment. (People v. Brown, 13 A.D.3d 667, 786 N.Y.S.2d 592)
