One Party’s Video-Recording of Consensual Sexual Activity Without the Other Party’s Knowledge and Consent Violates the Unlawful Surveillance Statute

In a full-fledged opinion by Justice Stein, the Third Department affirmed defendant’s conviction for violating New York’s Unlawful Surveillance statute (Penal Law 250.45).  This “first impression” case involved the defendant’s recording of his sexual activities with two women without the women’s knowledge or consent. The statute was found to apply to the video recording of consensual sexual activity by one of the parties involved in that activity.  Defendant was sentenced to a term in prison.  The relevant portions of the statute at issue provide:

“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, 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

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.         (a) 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, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent” (Penal Law § 250.45 [1], [2], [3] [a]).  People v Puznarksi, 105460, 3rd Dept 12-5-13