ALBANY – Videotaping a consensual act without a partner’s knowledge violates New York’s laws against unlawful surveillance, an upstate appeals panel ruled unanimously Thursday.
The Appellate Division, Third Department decided that, contrary to Michael Piznarski’s contentions that the 2003 unlawful surveillance law applies only to “peeping Toms” who hide video cameras in bathrooms, lockerrooms and dressing rooms, the law also applies to surreptitious recordings of personal sexual acts for “salacious and lewd” purposes.
The 4-0 ruling upheld the convictions of Piznarski, a former Colgate University student, for second-degree unlawful surveillance, a Class E felony, for videotaping in 2010 two fellow Colgate students without their knowledge while they had sex with him.
He was also convicted of two counts of second-degree coercion for threatening to post the video of one of the women on the Internet, identifying her by name, unless she consented to having oral sex, also on camera, according to the panel’s ruling.
She said that “reasonable people expect to be safe from casual or hostile intrusion” when in the bedroom of a private home, including the expectation to be “free from surveillance.”
“It is of no moment that the unwanted intrusion came from the person with whom the victim engaged in sex,” Stein wrote.
The panel cited a 2003 ruling from the Michigan Court of Appeals, Lewis v. LeGrow, 258 Mich App 175, and a 2012 ruling from the Indiana Court of Appeals, Wallace v. State, 961 NE2d 529, which interpreted similar statutes in those states.
Stein also said former governor George Pataki, when he signed the unlawful surveillance bill into law in 2003, had in mind the unauthorized taping of people willingly engaging in sexual acts as constituting criminal behavior under the amended state Penal Law §250.40.
“Women throughout…New York State have unknowingly been videotaped while engaging in sexual relations,” Pataki wrote in a message accompanying Chapter 69 of 2003. “Several women in this category have attempted to file complaints alleging that their partner made these videotapes without their knowledge or permission and are now even posting the video footage on the Internet. These women were turned away without a remedy.”
The court also rejected Piznarski’s claim that the unlawful surveillance statute’s language banning the secret recording of people in various stages of undress for “no legitimate purpose” was unclear.
“We conclude that defendant received adequate notice that his surreptitious recording of the victims while they were engaged in a sexual act was unlawful and that the statute provided clear standards for enforcement,” Stein wrote.
The panel likewise upheld the listing of Piznarski on the state’s Sex Offender Registry, which Piznarski said was “without merit.”
The court said it is within the discretion of judges to order offenders to be listed on the registry when their “history and character” would indicate the potential for future sex-related offenses. Piznarski had argued that his offenses constituted a crime “against the right of privacy” not sexual offenses.
According to the decision, Piznarski’s former girlfriend went to authorities after he allegedly coerced her into performing oral sex under threat of posting the earlier sex tape on the Internet.
Authorities checking his digital camera and computer found a taped encounter with a second Colgate student. Contacted by police, the second student said she did not know Piznarski taped the couple having sex and would not have consented to his taping them if she knew.
Following a jury trial in Madison County Court, Piznarski was found guilty in November 2012. He is serving between one and three years at Gowanda state prison. Piznarski, 24, is first eligible for parole in January 2015.
Deputy Madison County District Attorney Robert Mascari, who argued the case before the Third Department, said Piznarski had prepared a computer file with the first taped sexual encounter with his ex-girlfriend with her name and where she went to college, but apparently did not post it before he was arrested.
“It was clear that he wanted to,” Mascari said in an interview Thursday, “but he never really got a chance to follow through on his threat.”
Mascari said Madison County prosecutors were “thrilled” with the panel’s ruling. They felt the same in 2011, he said, when they sought to prosecute Piznarski and discovered that the unlawful surveillance statute appeared to give them a vehicle to do so.
J. Scott Porter of Syracuse, who represented Piznarski on appeal, said he will appeal to the Court of Appeals.
“With iPhones, and Smart Phones and all sorts of other mobile imaging devices, all the world’s a stage now and the privacy lines get more and more blurry because the technology is everywhere,” Porter said.
Piznarski is from southern California. His biography on the Internet Movie Database indicated that he once appeared as an actor on the television series “Once and Again” and that his father, Mark Piznarski, is a director whose credits include “NYPD Blue” and “90210.”
@|Joel Stashenko can be reached at email@example.com.