New York Appeals Court considers scope of unlawful surveillance law

February 16, 2014 |

In  NY court upholds conviction for video of neighbor the New York Times reports on a decision on that State’s Court of Appeals consideration of the operation of unlawful video surveillance law.

It provides:

 ALBANY, N.Y. — A western New York man who videotaped his neighbor after she got out of the shower on Christmas Eve 2008 had his so-called video voyeurism conviction upheld Thursday by the state’s highest court.
The Court of Appeals concluded David W. Schreier violated a 2003 state law against unlawful surveillance when he recorded the woman in her upstairs bathroom through a decorative window in the front door of her townhouse in Gates, outside Rochester.
The seven judges unanimously rejected Schreier’s argument that doing so wasn’t “surreptitious” as the law specifies. The court said his taping was done “by stealth,” the common meaning of that word, and someone’s own bathroom is a place they should expect privacy.

“To be sure, complainant did have the bathroom door open and, as it turned out, was videoed from the front step,” Chief Judge Jonathan Lippman wrote. “However, there is no indication that complainant had any inkling that she could be seen from outside or that she needed to take any measures to shield herself from view.”

It was 7:30 a.m. and still dark outside when the 6-foot-2 Schreier apparently held the camera over his head, used its zoom lens and adjusted its focus to record his neighbor after she opened the bathroom door, according to the court. When the woman realized she was being taped, noticing the camera’s red light when she happened to look in that direction, she shut the bathroom door and called police.

Officers followed footprints in the snow to Schreier’s home next door.

Schreier was convicted at trial and sentenced to five years on probation under “Stephanie’s Law,” a statue named for a woman recorded by her landlord with a hidden camera.

Defense attorney Timothy Murphy said the felony statute requires that the person videotaped not consent to it. It also requires the taping be done surreptitiously, which they argued means “an entirely secretive kind of act.”

“It would be something that no one could see. That’s how we wanted surreptitious to be interpreted,” Murphy said. Many other cases seem to involve that sort of recording with cameras left in locker rooms or bedrooms where nobody could possibly see them, while his client was in plain view, he said.

Monroe County Assistant District Attorney Nicole Fantigrossi said the court applied the plain meaning of surreptitious, which was their position all along. The judges also applied the statute’s definition of “reasonable expectation of privacy” for the times and places where it’s illegal to stealthily videotape somebody without their consent, she said.

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