People v. Schreier, 21 N.Y.3d 494 (2013)

The term “surreptitiously” in New York’s unlawful surveillance statute means conduct done by stealth or clandestinely, requiring an effort to conceal the conduct or escape detection, but not necessarily complete imperceptibility to all members of the public.

Summary

Schreier was convicted of unlawful surveillance for filming his neighbor, naked, in her bathroom. He argued the recording wasn’t “surreptitious” because he was standing in public view, and that the victim had no reasonable expectation of privacy. The New York Court of Appeals affirmed the conviction, holding that “surreptitiously” means acting stealthily to avoid detection, which Schreier did by filming early on Christmas Eve morning with a small camera and adjusting the angle. The court also found the victim had a reasonable expectation of privacy in her own bathroom.

Facts

The defendant, Schreier, stood outside his neighbor’s townhouse at 7:30 a.m. on Christmas Eve and filmed the complainant, his neighbor, while she was naked in her second-floor bathroom. The complainant had just exited the shower and opened the bathroom door to allow steam to dissipate. The defendant used a compact video camera and its zoom feature to record her for several minutes. The complainant noticed a red light and a black-gloved hand holding a camera outside her front door. The bathroom was almost directly in line with the front door. The defendant was six feet, two inches tall. An investigator testified he had to hold the camera over his head to obtain images of the bathroom through the window.

Procedural History

Schreier was convicted in County Court of unlawful surveillance in the second degree after a nonjury trial. County Court denied his motion for a trial order of dismissal. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the evidence was legally sufficient to establish that the recording was made “surreptitiously” within the meaning of Penal Law § 250.45(1)?

2. Whether the complainant had a reasonable expectation of privacy in her bathroom under Penal Law § 250.45(1)?

Holding

1. Yes, because the defendant’s conduct was furtive and stealthy, attempting to obtain the video without being discovered.

2. Yes, because a reasonable person would believe they could fully disrobe in privacy in their own bathroom, and the complainant had no reason to believe she could be seen from outside.

Court’s Reasoning

The Court of Appeals addressed the meaning of “surreptitiously,” noting the statute doesn’t define it. The court applied the common meaning: something done “by stealth” or “clandestinely.” The court emphasized that the statute requires the perpetrator to make an effort to conceal their conduct or escape detection. Although the defendant was potentially exposed to public view, it was 7:30 a.m. on Christmas Eve, and he was holding a small black camera in a black-gloved hand, and had to hold the camera over his head to get the angle right. This, the court reasoned, was enough to show he was acting in a stealthy manner.

Regarding the reasonable expectation of privacy, the court cited Penal Law § 250.40(1), which defines it as “a place and time when a reasonable person would believe that he or she could fully disrobe in privacy.” The court stated, “One’s own bathroom must certainly be the quintessential example of a location where an individual should expect privacy.” The fact that the complainant had the bathroom door open was not dispositive, as she had no indication she could be seen from outside. The court rejected the argument that Fourth Amendment jurisprudence should be used, stating that the legislature expressly defined “reasonable expectation of privacy” for the purposes of the statute, and that the Fourth Amendment protects against government intrusion.

The court emphasized the intent of Stephanie’s Law to combat “video voyeurism” and the need to protect individuals in places where they expect privacy. As the court stated, “It cannot be that the legislature intended New Yorkers to have to shutter their own residences completely in order to garner the protection of this Penal Law provision.”