People v. Nemcow

• Decision Date: 12 October 2021
• Docket Number: 570250/19
• Citation: 155 N.Y.S.3d 518,73 Misc.3d 28
• Parties: The PEOPLE of the State of New York, Respondent, v. Julius NEMCOW, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

73 Misc.3d 28

155 N.Y.S.3d 518

The PEOPLE of the State of New York, Respondent,

v.Julius NEMCOW, Defendant-Appellant.

570250/19

Supreme Court, Appellate Term, New York, First Department.

Decided on October 12, 2021

Cyrus R. Vance, Jr., District Attorney (Franklin R. Guenthner of counsel), for respondent.

Center for Appellate Litigation (Benjamin Rutkin-Becker of counsel) for appellant.

PRESENT: Edmead, P.J., Brigantti, Hagler, JJ.

Per Curiam.

Judgment of conviction (Anne J. Swern, J. on motion to dismiss; Herbert J. Moses, J., at trial and sentencing), rendered April 15, 2019, affirmed.

Penal law § 120.45(3) provides that a person is guilty of stalking in the fourth degree when he or she

"intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct ... is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing,

telehoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct."

In enacting this statute,

"[t]he New York Legislature set up a standard of intent that does not require that the stalker have a specific intent to stalk, but rather that the stalker [for no legitimate purpose] intentionally engages in a course of conduct, which s/he knew or reasonably should have known ... is likely to cause such person to reasonably fear that his or her employment is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct. This last, particularly bold, initiative was to provide within the statute recourse for victims who suffer employment, business or career consequences or reasonable fear in that regard, emanating from the conduct of the stalker"

(Demetra M. Pappas, Stopping New Yorkers' Stalkers: An Anti-Stalking Law for the Millennium , 27 Fordham Urb L.J. 945, 949-950 [2000] [internal quotation marks and citations omitted]).

Viewing the evidence in the light most favorable to the prosecution and giving them the benefit of every reasonable inference (see People v. Gordon , 23 N.Y.3d 643, 639, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ), defendant's guilt of fourth-degree stalking was proven beyond a reasonable doubt. The evidence presented by the People established every element of the offense. Complainant, an employee at the New York City Administration for Children's Services [ACS], Office of Advocacy, was a parent advocate on defendant's behalf with respect to a then-open ACS case concerning defendant's daughter. After complainant declined defendant's request to go on a date, defendant sent a barrage of messages by email and voicemail to complainant and her supervisors, falsely claiming that he was in an "intimate relationship" with complainant and that complainant was dating ACS constituents, and referring to complainant's immediate supervisor as a "bitch." Defendant also forwarded compromising and embarrassing online photos of complainant taken ten years earlier when she was a teenager. Defendant continued this conduct even after he was notified in an email dated December 15, 2017, that he should "desist" from any further contact, that the Office of Advocacy's work was "officially concluded," and that police had been notified. Following that notification, defendant sent emails to a supervisor claiming that complainant "smoked weed, w[ore] gang attire, strip[ped] naked in social media posts," had "sex with [a] client," and defendant threatened to "take these photos of her to the media." Given the nature, content and volume of the emails, the court could rationally infer that defendant, intentionally and for no legitimate purpose, engaged in a course of conduct directed at complainant that...