People v. Piznarski

• Decision Date: 05 December 2013
• Citation: 113 A.D.3d 166,977 N.Y.S.2d 104,2013 N.Y. Slip Op. 08157
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. PIZNARSKI, Appellant.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 166

977 N.Y.S.2d 104

2013 N.Y. Slip Op. 08157

The PEOPLE of the State of New York, Respondent,

v.Michael J. PIZNARSKI, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 5, 2013.

J. Scott Porter, Seneca Falls, for appellant.

William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, STEIN and McCARTHY, JJ.

STEIN, J.

Appeal from a judgment of the County Court of Madison County (McDermott, J.), rendered January 14, 2013, upon a verdict convicting defendant of the crimes of unlawful surveillance in the second degree (four counts) and coercion in the second degree (two counts).

This case, apparently one of first impression, involves the application of New York's unlawful surveillance statute ( seePenal Law § 250.45) to the prosecution of a defendant accused of video recording his sexual activities without the knowledge or consent of the other participants.

In the fall of 2009, defendant and victim A, both college students attending the same university, began dating. In March 2010, defendant used his digital camera to secretly record victim A performing oral sex on him while they were in the bedroom of his apartment. Defendant and victim A broke up in August 2010 and, although their relationship became strained, they continued to have contact with one another following their return to school that fall. In September 2010, defendant informed victim A—through a series of Facebook messages—that he possessed the March video; he described the video's content and insinuated that he was going to upload it to a website and identify victim A by name. According to victim A, she was distraught over the messages and asked defendant to delete the video.

Thereafter, on December 6, 2010, victim A went to defendant's apartment to discuss their relationship. Victim A claimed that defendant became irate, started berating her and ultimately threatened to disseminate the video and humiliate her unless she agreed to have one final sexual encounter with him while he recorded it. Victim A initially refused, but eventually acceded to defendant's demands and accompanied him into his bedroom. While there, defendant began recording victim A and disrobed her. Ultimately, victim A refused to have sexual intercourse with defendant, but instead acquiesced to defendant video recording her while she performed oral sex on him.

After leaving defendant's apartment, victim A disclosed the incident to her roommate and reported it to campus security and to the local police. The police subsequently obtained and executed a warrant to search defendant's apartment and retrieved a small digital camera, an ipod, an external hard drive and a laptop computer. A search of defendant's laptop revealed multiple video files, including videos of the March 2010 and December 2010 sexual encounters between victim A and defendant. A third file was also found, which consisted of a video of defendant having sex with victim B. After learning the identity of victim B, a police investigator contacted her and she confirmed that she had a sexual encounter with defendant in November 2010, but denied knowing that he had recorded it.

As a result of these incidents, defendant was charged, in two separate indictments, with various crimes relating to the recordings. In the first indictment, arising out of the March and December 2010 incidents involving victim A, defendant was charged with unlawful surveillance in the second degree (two counts), criminal sexual act in the third degree, coercion in the second degree (two counts) and unlawful imprisonment in the second degree. In the second indictment, in relation to the November 2010 recording of victim B, defendant was charged with three counts of unlawful surveillance in the second degree. Before trial, County Court dismissed the charge of criminal sexual act in the third degree and the first count of unlawful surveillance with respect to victim A and, as relevant here, granted a motion by the People to consolidate the indictments for trial, over defendant's objection.

Following a jury trial, defendant was acquitted of the charge of unlawful imprisonment and was convicted of the remaining charges. He was subsequently sentenced to a prison term of 1 to 3 years on the unlawful surveillance conviction relating to victim A, concurrent nine-month sentences on the two coercion convictions, and three concurrent one-year sentences for the unlawful surveillance convictions relating to victim B.¹ County Court also issued an order of protection for both victims, directed defendant to pay restitution and certified defendant as a sex offender. Defendant now appeals, advancing a constitutional challenge to the unlawful surveillance statute ( seePenal Law § 250.45), as well as claims relating to (1) the legal sufficiency of his conviction of the four counts of unlawful surveillance, (2) County Court's consolidation of the two indictments for trial, (3) the integrity of the grand jury proceeding with respect to victim A, (4) various evidentiary rulings made at trial, (5) County Court's determination that defendant should be designated a sex offender, and (6) the severity of his sentence. For the reasons that follow, we now affirm.

Initially, defendant argues that the unlawful surveillance statute does not apply to his conduct at issue here. In 2003, the Legislature created the crime of unlawful surveillance in the second degree ( see L. 2003, ch. 69, § 3), as part of a group of laws criminalizing video voyeurism ( see William C. Donnino, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 39, Penal Law § 250.40). As relevant here:

“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] ).²

We are unpersuaded by defendant's argument that the statute does not apply to the video recording of consensual sexual activity by one of the parties involved in that activity—even if the recording is done without the knowledge or consent of the other party—and that the statute, instead, was intended to cover only the actions of a “Peeping Tom.”

There is nothing in the plain language of the statute that would preclude its application to the surreptitious recording of a consensual sexual encounter by one of the participants ( see generally People v. Varughese, 21 A.D.3d 1126, 1127, 801 N.Y.S.2d 415 [2005], lvs. denied6 N.Y.3d 782, 811 N.Y.S.2d 349, 844 N.E.2d 804 [2006] ). In fact, the statute's legislative history supports the conclusion that the Legislature intended its application to defendant's conduct ( see generally People v. Kozlow, 8 N.Y.3d 554, 559–560, 838 N.Y.S.2d 800, 870 N.E.2d 118 [2007] ). A memorandum in support of the legislation described examples of various circumstances that necessitated the enactment of this law, one of them being that:

“Women throughout ... New York State have unknowingly been videotaped while engaging in sexual relations. 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 showing them to friends and others, and even posting the video footage on the Internet. These women were turned away without a remedy” (L 2003, ch. 69, Governor's Program Bill Mem No. 12, 2003 N.Y. Legis. Ann., at 54).

Therefore, defendant's claim that the unlawful surveillance statute does not encompass his crime is unavailing.

Defendant next asserts a constitutional challenge to the statute, arguing that it is too vague as applied to him. Initially, we note that “legislative enactments carry a strong presumption of constitutionality” (People v. Stuart, 100 N.Y.2d 412, 422, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003]; see People v. Jenner, 39 A.D.3d 1083, 1085, 835 N.Y.S.2d 501 [2007], lv. denied9 N.Y.3d 845, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007] ). “[A]n as-applied challenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case” (People v. Stuart, 100 N.Y.2d at 421, 765 N.Y.S.2d 1, 797 N.E.2d 28). “[A] ‘statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law’ ” (id. at 419, 765 N.Y.S.2d 1, 797 N.E.2d 28, quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 [1926] ). A two-part test is used to determine whether a statute is unconstitutionally vague; first, “the court must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her]...