People v. Lema

Appellate Division of the Supreme Court of New York

People v. Lema

2017 NY Slip Op 5683, 152 A.D.3d 440, 55 N.Y.S.3d 656

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 13, 2017

Docket4455 4117/13

StatusPublished

Cited by1 cases

This text of 2017 NY Slip Op 5683 (People v. Lema) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Lema, 2017 NY Slip Op 5683, 152 A.D.3d 440, 55 N.Y.S.3d 656 (N.Y. Ct. App. 2017).

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Opinion

Judgment, Supreme Court, New York County (Ann M. Don-nelly, J.), rendered September 8, 2015, as amended September 29, 2015, convicting defendant, after a jury trial, of two counts of unlawful surveillance in the second degree, and sentencing him to concurrent terms of one to three years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Although defendant used a phone camera to record underneath women’s skirts on a subway train, no image of their “sexual or other intimate parts” (Penal Law § 250.45 [4]) resulted because of the dark lighting conditions. We conclude that the statute is satisfied so long as a defendant attempts to create such an image.

Penal Law § 250.45 (4) provides that a person is guilty of unlawful surveillance in the second degree when, “[w]ithout the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.” Notably, the statute does not require that there be any actual viewing, broadcasting, or recording. The statute uses the word “to,” which connotes purpose, *441 but does not necessarily require consummation. Thus it can fairly be said that defendant used the device “to . . . record,” that is, for the purpose of creating a recording, even though that recording was never successfully made. This interpretation is most consonant with the intent and purpose of the statute (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 250.45 at 348-349).

For the same reasons, the court did not err in responding to a jury note by instructing the jury that “there is no requirement that you actually get a clear picture” of a person’s sexual or intimate parts to be guilty of unlawful surveillance in the second degree.

Concur — Sweeny, J.P., Mazzarelli, Webber and Kern, JJ.

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Judgment, Supreme Court, New York County (Ann M. Don-nelly, J.), rendered September 8, 2015, as amended September 29, 2015, convicting defendant, after a jury trial, of two counts of unlawful surveillance in the second degree, and sentencing him to concurrent terms of one to three years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Although defendant used a phone camera to record underneath women’s skirts on a subway train, no image of their “sexual or other intimate parts” (Penal Law § 250.45 [4]) resulted because of the dark lighting conditions. We conclude that the statute is satisfied so long as a defendant attempts to create such an image.

Penal Law § 250.45 (4) provides that a person is guilty of unlawful surveillance in the second degree when, “[w]ithout the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.” Notably, the statute does not require that there be any actual viewing, broadcasting, or recording. The statute uses the word “to,” which connotes purpose, *441 but does not necessarily require consummation. Thus it can fairly be said that defendant used the device “to . . . record,” that is, for the purpose of creating a recording, even though that recording was never successfully made. This interpretation is most consonant with the intent and purpose of the statute (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 250.45 at 348-349).

For the same reasons, the court did not err in responding to a jury note by instructing the jury that “there is no requirement that you actually get a clear picture” of a person’s sexual or intimate parts to be guilty of unlawful surveillance in the second degree.

Concur — Sweeny, J.P., Mazzarelli, Webber and Kern, JJ.

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Bluebook (online)

2017 NY Slip Op 5683, 152 A.D.3d 440, 55 N.Y.S.3d 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lema-nyappdiv-2017.

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