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In a ruling of first impression, a Criminal Court judge in Manhattan has dismissed a criminal complaint accusing a man of violating a 2003 statute barring dissemination of clandestine video images taken of persons in compromising positions without their knowledge or consent. Criminal Court Judge Ellen N. Coin said the ruling appears to be the first construing the 2003 law, widely referred to as Stephanie’s Law after the woman who had sought its enactment after her landlord secretly videotaped her by installing a hidden camera in the smoke detector above her bed. The complaint in the case before Coin charged that the defendant, Angelo Morriale, had used a camera in his telephone to record images of him having sex with a woman twice in the same day. The complainant was not identified in the decision. Morriale was charged with two counts of disseminating “an unlawful surveillance image” in the second degree in violation of Penal Law §250.55. One count charged Morriale with sending the images to his own e-mail account, and the other of sending the images to a third party. Disseminating an unlawful surveillance image in the second degree is a class A misdemeanor punishable by a maximum of a year in jail. Under Penal Law §250.40(5), “disseminate” is defined as transmitting images, electronically, or otherwise, “to another person.” Morriale’s sending of the images to his own e-mail account did not meet that definition, Coin concluded in People v. Morriale, 2007NY96213. Likewise, Coin ruled, the complaint did not contain allegations sufficient to establish that Morriale had committed a crime when he sent the images to a third party. To make out a claim of an unlawful dissemination of surveillance images, she wrote, Penal Law §250.55 requires that the person disseminating the images be aware that the images were taken in violation of the underlying crimes of either unlawful surveillance in the first or second degree. The complaint did not allege “essential elements” that would satisfy any of the four situations that Penal Law §250.45 defines as unlawful surveillance in the second degree, she concluded. Those four situations are:
• Taking images of a person’s intimate parts, including images of a person dressing or undressing, for amusement, entertainment or profit (subdivision 1). • Doing the same for sexual arousal or gratification (subdivision 2). • The installation of an “imaging device” in a variety of different settings, including a bedroom, bathroom, changing room or room in a hotel (subdivision 3). • The installation of a recording device under a person’s clothing (subdivision 4).

With regard to subdivisions 1 and 2, Coin noted the statute requires that the recording take place in a setting where the alleged victim has “a reasonable expectation of privacy.” But she said that the complaint “fails to allege any fact from which it can be inferred that the complainant was viewed at a time and place when she had a reasonable expectation of privacy.” Additionally, Coin noted, the complaint failed to allege a critical element needed to make out the underlying crime of unlawful surveillance in the first degree. To commit unlawful surveillance in the first degree, as defined in Penal Law §250.50, the defendant must have a prior conviction of unlawful surveillance within the previous 10 years. The complaint did not allege that Morriale had been convicted of unlawful surveillance in either the first or second degree, she wrote. The failure to plead facts, necessary to establish the predicate crimes of unlawful surveillance in the first or second degree, required the dismissal of the count charging the dissemination of an unlawful surveillance image to a third party, Coin concluded. Mark Dwyer, the head of appeals at the Manhattan district attorney’s office, said the decision is being reviewed. Assistant District Attorney Julia London handled the case for the prosecution. Pamela J. Griffith of the Legal Aid Society represented Morriale.

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