Renato Stabile
Time 2021-10-24 21:09:45Web Name: Renato Stabile
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keywords: description:Judge Rayford: Mr. Kirkland you are out of order!
Arthur Kirkland: You're out of order! You're out of order! The whole trial is out of order! They're out of order!
...And Justice for All (1979)While everyone has heard of being in contempt of court, this article discusses the legal principles of contempt proceedings, the differences between civil and criminal contempt, and the privilege against self-incrimination in a contempt proceeding.
Civil Contempt v. Criminal Contempt
There are two types of contempt of court -- civil contempt and criminal contempt.Although the same act may be punishable as both a civil and a criminal contempt, the two types of contempt serve different purposes and have different requirements.
1. Civil Contempt
A civil contempt is one where the rights of an individual have been harmed by the contemnors failure to obey a court order . . . Any penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the courts mandate or both.Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 239, 519 N.Y.S.2d 539, 513 N.E.2d 706 (1987). Imposing a civil contempt sanction as a solely punitive measure is in a sense an aberration from the generally recognized distinction between criminal and civil contempt and the function of civil contempt.N.A. Dev. Co. v. Jones, 99 A.D.2d 238, 240, 472 N.Y.S.2d 363, 365 (1st Dept 1984);see alsoState v. Unique Ideas, Inc., 44 N.Y.2d 345, 348, 4-5 N.Y.S.2d 656, 658 (1978)(unlike criminal contempt where deterrence is the aim . . . civil contempt must be remedial in nature and effect);Moran v. Philmont, 147 A.D.2d 230, 235, 542 N.Y.S.2d 873, 876 (3d Dept 1989)(fine for civil contempt must be remedial in nature and designed only to compensate the aggrieved party).
A court's power to punish for civil contempt is found in New York Judiciary Law 753, which lists the circumstances in which a person may be held in civil contempt, including:
misbehavior or disobedience by an officer of the court (attorney, clerk, sheriff, etc.),a party posting fictitious bail or a fictitious surety or any other deceit,nonpayment of certain sums of money,rescuing property or impeding testimony, without authority,refusing to obey a subpoena,improper communications by a juror,disobedience of a higher court by a lower court,any other case where civil contempt has traditionally been used.New York CPLR 5251 also establishes that refusal or willful neglect of any person to obey a subpoena or restraining notice; false swearing upon an examination or in answering written questions; and willful defacing or removal of a posted notice of sale before the time fixed for the sale, shall each be punishable as a contempt of court. New York Domestic Relations Law245, authorizes the use of civil contempt proceedings to enforce a money judgment in a divorce case.
The three elements of of civil contempt are:(1) a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed, (2) the party to be held in contempt must have had knowledge of the order, and (3) prejudice to the rights of a party to the litigation must be demonstrated. McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 341, 639 N.E.2d 1132, 1138 (1994).
The third element -- prejudice -- is usually the most difficult element to prove, but failing to demonstrate prejudice is fatal to a contempt motion. See Matter of Peer, 50 A.D.3d 1511, 1512, 856 N.Y.S.2d 385, 387 (4th Dept 2008) (contempt motion denied where there was no showing of prejudice based on delay in producing documentation and information); El-Dehdan v. El-Dehdan, 114 A.D.3d 4, 12, 978 N.Y.S.2d 239, 246 (2d Dept 2013) (for civil contempt, there must be a finding that a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced.[t]he element of prejudice to a partys rights is essential to civil contempt.).
The standard of proof to find someone in civil contempt is "reasonable certainty." Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 283, 453 N.E.2d 508, 513 (1983);Matter of Hynes v. Hartman, 63 A.D.2d 1, 406 NYS 2d 818(1st Dept 1978).
An application to punish for civil contempt may be made by order to show cause, pursuant to New York Judiciary Law 756.
New York law permits the party in contempt to purge the contempt by performing the act required, or by undoing or reversing the acts constituting the contempt.Silverstein v. Aldrich, 76 A.D.2d 911, 429 N.Y.S.2d 41 (2d Dept 1980).Chue v. Clark, 46 Misc. 3d 973, 989, 999 N.Y.S.2d 676, 688 (S.Ct. Monroe County 2014);seealsoDankner v. Steefel, 41 A.D.3d 526, 528, 838 N.Y.S.2d 601, 604 (2d Dept 2007)(court should have provided opportunity to purge contempt);Pronti v. Allen, 13 A.D.3d 1034, 1036, 787 N.Y.S.2d 470, 472 (3d Dept 2004)(contemnor generally allowed an opportunity to purge the contempt by performing the act required ).
The penalties for civil contempt, pursuant to Judiciary Law 774, include:
imprisonment until the act is performed (if within the offender's power),a fine (discussed below),if the act has been performed, no more than 3 months to pay a fine less than $500,if the act has been performed, no more than 6 months to pay a fine more than $500.With regard to imprisonment,Judiciary Law 775provides that Where the commitment was made to punish a contempt of court committed with respect to an enforcement procedure under the civil practice law and rules, and the offender has purged himself of contempt as provided in section seven hundred seventy-two or seven hundred seventy-three of this article, the court out of which the execution was issued shall make an order directing him to be discharged from the imprisonment.
With regard to the fine,Judiciary Law 773 authorizes the imposition of two different types of fines. First, where actual loss or injury has resulted from a partys misconduct, a fine may be imposed sufficient to indemnify the aggrieved party. Second, where it is not shown that an actual loss or injury has been cause, a fine may be imposed, not exceeding the amount of the complainants costs and expenses, plus $250. See Judiciary Law 773; State v. Unique Ideas, Inc., 44 N.Y.2d 345, 349, 405 N.Y.S.2d 656, 658, 376 N.E.2d 1301, 1303(1978). Unlike fines for criminal contempt where deterrence is the goal, civil contempt fines must be remedial in nature and effect. The award should be formulated not to punish an offender, but solely to compensate or indemnify private complainants. Id.
No fine may be imposed, unless there has been a finding of contempt. See Van Nostrand v. Town of Denning, 203 A.D.2d 687, 610 N.Y.S.2d 356, 357 (3d Dept 1994) (no finding of contempt having been made, there was no basis for the imposition of a fine (see, Matter of Bender Bodnar v. Buell, 143 A.D.2d 661, 662, 533 N.Y.S.2d 17 (2d Dept 1988)); see also Bank of Am., N.A. v. Sigo Mfr. L.L.C., 2012 N.Y. Misc. LEXIS 99 (S.Ct. Albany County 2012) (fine consisting of Plaintiffs costs in bringing contempt motion waived if contempt purged).
If, however, the Court makes a finding of civil contempt and imposes a fine for costs and expenses, the prevailing party is required to submit an affidavit that specifies in detail the time spent, the hourly rate and the nature and extent of the services rendered. See Young Woo Assoc., LLC v. Kim, 2012 N.Y. Misc. LEXIS 6413 *9, 2012 NY Slip Op 33437(U) (S.Ct. New York County 2012) (citing Blau v. Blau, 309 A.D.2d 672, 673, 766 N.Y.S.2d 347 (1st Dept 2003) (citing Skidelsky v. Skidelsky, 279 A.D.2d 356, 719 N.Y.S.2d 88 (1st Dept 2001)). See also Vider v. Vider, 85 A.D.3d 906, 908, 925 N.Y.S.2d 189, 192 (2d Dept 2011) (where no showing of actual damages resulting from contempt, fine capped at $250).
A prevailing party bears the burden of showing by sufficient evidence that the attorneys fees sought are reasonable, and the Court has the discretion to determine that the amount of any legal fees is reasonable. Young Woo Assoc., LLC v. Kim, 2012 N.Y. Misc. LEXIS 6413 *9.
2. Criminal Contempt
Criminal contempt can be punished under both the Judiciary Law and New York's Penal Law.
Criminal Contempt Under the Judiciary Law
A criminal contempt under the Judiciary Law involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates. Unlike civil contempt, the aim in a criminal contempt proceeding is solely to punish the contemnor for disobeying a court order, the penalty imposed being punitive rather than compensatory.State v. Unique Ideas, Inc., 44 N.Y.2d 345, 349, 405 N.Y.S.2d 656, 658, 376 N.E.2d 1301, 1303(1978).
A court's power to punish for criminal contempt found in Judiciary Law 750lists the circumstances in which a person may be held in criminal contempt, including:
disorderly, contemptuous, or insolent behavior in the presence of the court,disturbances which interrupt the court proceedings,willful disobedience of a lawful mandate,willful resistance of a lawful mandate,refusal to be sworn as a witness or answer questions,publication of false or grossly inaccurate reports of court proceedings,failure to respond to a jury summons,unlawful practice of law.The elements for criminal contempt are similar to civil contempt, except that no showing of "prejudice" is needed since the right of the private parties to the litigation is not the controlling factor in criminal contempt.
Courts have also recognized the degree of "willfulness" as another distinguishing element between civil and criminal contempt.To be found guilty of criminal contempt, the contemnor must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding.SeeMatter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 542, 513 N.E.2d 706, 709 (1987)(citingMatter of McCormick v. Axelrod, 59 N.Y.2d 574, 583).
For example, Judiciary Law753 (a)(1) (civil contempt) authorizes a finding of civil contempt "for disobedience to a lawful mandate of the court." In comparison, Judiciary Law750 (criminal contempt) authorizes a court to punish for "willful disobedience to its lawful mandate." (emphasis supplied). But see,New York CPLR 5251 ("willful neglect of any person to obey a subpoena and willful defacing or removal of a posted notice of sale before the time fixed for the sale, shall each be punishable as a contempt of court"); see also, Judiciary Law 753 (a)(1) (civil contempt for "willful neglect of [judicial] duty;" Judiciary Law 753 (a)(4) (civil contempt for "willfully preventing, or disabling from attending or testifying, a witness, or party to an action").
The standard of proof for criminal contempt is proof beyond a reasonable doubt. County of Rockland v. Civil Serv. Emples. Ass'n,62 N.Y.2d 11, 14, 475 N.Y.S.2d 817, 818,464 N.E.2d 121, 122(1984) ("The applicable standard of proof to establish criminal contempt is proof beyond a reasonable doubt.");Young v. United States ex rel. Vuitton Et Fils S. A.,481 U.S. 787, 798-99, 107 S. Ct. 2124, 2133, 95 L. Ed. 2d 740, 753 (1987) (listing the procedural rights of defendants in criminal contempt proceedings, including proof of guilt beyond a reasonable doubt).
But a 1987 Court of Appeals decision -- decided afterthe United States Supreme Court decided Young--suggested that the standard of proof for criminal contempt is the same as for civil contempt - "reasonable certainty." SeeMatter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 542, 513 N.E.2d 706, 709 (1987)("To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect (supra, at 583). It must also appear with reasonable certainty that the order has been disobeyed (citing Pereira v. Pereira, 35 N.Y.2d 301, 308, 361 N.Y.S.2d 148, 154, 319 N.E.2d 413, 418 (1974))."); see also Odimgbe v. Dockery,153 Misc. 2d 584, 582 N.Y.S.2d 909 (NYC Civil Ct. Kings County 1992) (noting that the standard for both civil and criminal contempt was the same, that of "reasonable certainty") (citingMatter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y.).
The penalties for criminal contempt, pursuant to New York Judiciary Law751, include:
a fine of up to $1,000,30 days in jail,3 months in jail for violating an order of protection.Ironically, the penalties for criminal contempt are less severe than the penalties for civil contempt.
If a person is summarily imprisoned for either civil or criminal contempt committed in the presence of the court, the reasons must be stated in writing and are reviewable in an Article 78 proceeding. SeeNew York Judiciary Law 752 and 755. If there is a finding of contempt following a full hearing and an adequate record is established, the contempt finding may be challenged in a direct appeal. SeePeople v. Clinton, 42 A.D.2d 815, 346 N.Y.S.2d 345, 345-346 (3d Dep't 1972) (direct appeal where an adequate record exists).
Criminal Contempt Under The Penal Law
Criminal contempt under the Penal Law is a crime, conviction for which can result in the severe consequences common to all criminal convictions.
Criminal contempt can be prosecuted by the State as a criminal offense (A misdemeanor) underNew York Penal Law 215.50, criminal contempt in the second degree, which mostly tracks the language of Judiciary Law 750for the same conduct and adds a prohibition against protesting in front of a courthouse concerning a trial taking place.
To make matters worse,Penal Law 215.54specifically authorizes a prosecution for criminal contempt underPenal Law 215.50, following a finding of contempt under Judiciary Law 750. Notwithstanding this possibility of dual findings of criminal contempt, Judiciary Law776 requires that any punishment under the Penal Law, must take into consideration a previous punishment under the Judiciary Law.
More serious forms of criminal contempt include refusal to be sworn as a grand jury witness, which is an E felony, pursuant to Penal Law 215.51, criminal contempt in the first degree, as is disobeying an order of protection. There is also a crime of aggravated criminal contempt (D felony), pursuant to Penal Law 215.52, which addresses repeated contempt violations.
All of the procedural rights that apply to any criminal prosecution -- jury trial, right to counsel, etc. -- apply to criminal prosecutions for criminal contempt.
A Person May Not Be Held In Contempt for Asserting His Privilege Against Self-Incrimination
A fair amount of contempt litigation involves a subpoenaed witness's refusal to answer questions based on the privilege against self-incrimination. New York CPLR 5251establishes that refusal or willful neglect of any person to obey a subpoena shall each be punishable as a contempt of court. SeealsoJudiciary Law 750 (A)(5);Judiciary Law 753 (A)(5);New York Penal Law 215.50 (A)(4).
A witness may properly assert his privilege against self-incrimination during either a civil or criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (explaining that the Fifth Amendment permits an individual not to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answer might incriminate him).
A party may not be held in contempt for asserting the privilege against self-incrimination.SeeEl-Dehdan v. El-Dehdan, 114 A.D.3d at 13, 978 N.Y.S.2d at 253(The defendant correctly contends that a party may not be held in criminal contempt solely for a justified assertion of the Fifth Amendment privilege.);County of Orange v. Rodriguez, 283 A.D.2d 494, 724 N.Y.S.2d 477 (2d Dept 2001)(it is well settled that a party may not be held in contempt based upon his or her good faith invocation of the Fifth Amendment privilege against self-incrimination in response to questions posed at a hearing) (citingUnited States v. Rylander, 460 U.S. 752, 760 (1983);United States v. Edgerton, 734 F.2d 913 (2d Cir.1984);Federal Deposit Ins. Corp. v. Salesman Unlimited Agency Corp., 101 A.D.2d 876 (2d Dept 1984));see alsoRyder v. Harris, 93 A.D.2d 971, 972, 463 N.Y.S.2d 76 (3d Dept 1983)(annulling contempt finding and sentence of incarceration where witness asserted Fifth Amendment privilege against self-incrimination);Matter of Solerwitz v. Signorelli, 183 A.D.2d 718, 719, 583 N.Y.S.2d 296 (2d Dept 1992)(criminal contempt sanction improper where attorney was directed to turn over estate assets to the Surrogates Court, and the attorney asserted the privilege in response to the question of what had become of the assets).
The Supreme Court has held that the Fifth Amendment guarantee must be broadly construed to serve the right it was designed to protect, Arndstein v. McCarthy, 254 U.S. 71, 72-73, 41 S.Ct. 26, 26-27, 65 L.Ed. 138 (1920); Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892). The privilege extends not only to those disclosures that in and of themselves would support a conviction, but also to those that might furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. United States v. Lumpkin, 192 F.3d 280, 285 (2d Cir. 1999) (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)).
This also applies to the act of production privilege against self-incrimination.SeeCVL Real Estate Holding Co. LLC v. Weinstein, 35 Misc. 3d 1215(A), 951 N.Y.S.2d 85 (S.Ct. New York County 2012) (discussing act of production privilege in context of contempt motion) (relying onUnited States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984)).
The Second Circuit has held that even where the risk of criminal prosecution is slight or remote, a witness may properly assert his privilege against self-incrimination, since it is not for the trial judge to assess the practical possibility that prosecution would result from incriminatory answers. Such assessment is impossible to make because it depends on the discretion exercised by a United States Attorney or his successor. United States v. Miranti, 253 F.2d 135, 138 (2d Cir. 1958) (holding that witness can invoke his privilege against self-incrimination where practically there is only a slight possibility of prosecution). See also, In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir. 1979) (privilege against self-incrimination is available even where the risk of criminal prosecution is remote).
Determining whether the privilege is available in given circumstances thus involves essentially a factual inquiry. OSRecovery, Inc. v. One Groupe Intl., Inc., 262 F.Supp.2d 302, 306 (S.D.N.Y. 2003). A judge must determine, from the implications of the question, in the setting in which it is asked, whether a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. Id. (citation omitted).
"In assessing the validity of an assertion of Fifth Amendment privilege, the court must look to all of the circumstances of the case and 'be governed as much by personal perceptions of the peculiarities of the case as by the facts actually in evidence.'" G.D. Searle Co. v. Interstate Drug Exchange, Inc., 117 F.R.D. 495, 500 (E.D.N.Y. 1987) (citing Hoffman, 341 U.S. at 486). The court may "order a witness to answer if it clearly appears he is mistaken as to the justification for the privilege or is advancing his claim as a subterfuge." G.D. Searle Co., 117 F.R.D. at 500 (internal cite omitted).
In making this determination and when the incriminatory potential of a discovery request is not clear on its face, an in camera conference is consonant with the notion that a witness need not surrender the very protection that the privilege is designed to guarantee in order to invoke it. Hoffman, 341 U.S. at 486, 71 S.Ct. at 818. The Supreme Court has repeatedly looked with favor upon the practice of in camera review of various privileges against disclosure. See United States v. Zolin, 491 U.S. 554, 109 S.Ct. 2619, 2629, 105 L.Ed.2d 469 (1989) (in camera review of applicability of crime-fraud exception to attorney-client privilege); Kerr v. United States District Court, 426 U.S. 394, 406, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (suggesting that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege).
Of course, any assertion of the privilege against self-incrimination must be in good faith. SeeFederal Deposit Ins. Corp. v. Salesmen Unlimited Agency Corp., 101 A.D.2d 876 (2d Dep't 1984).The Second Department has noted that a court may sanction a party for refusing to answer questions where there is no showing of a good faith basis for invoking the privilege against self-incrimination. El-Dehdan, 114 A.D.3d at 22.2 comments: Tuesday, June 2, 2015 Top 10 Things NOT To Do In An Investigation -- Illegal Investigation Techniques in New YorkWinning in court requires thorough investigation, but zealous advocacy must not cross the line into criminal conduct. Lawyers may be responsible for the conduct of their private investigators.
Avoid these illegal investigative techniques:
1. Opening Someone's Mail
It might be tempting to open mail addressed to a spouse or business partner with whom there is litigation or just suspicion, but doing so is a crime.
New York Penal Law 250.25 (1), tampering with private communications (B misdemeanor), prohibits opening or reading a sealed letter or other sealed private communicationwithout the consent of the sender or receiver. PL 250.25 (2) prohibits divulging the contents or any portion of a sealed letter, without the consent of the sender or receiver.
Under federal law, 18 U.S.C. 1702 makes it a crime, punishable by up to 5 years in prison, to take or open a letter after it has been placed in the mail, before it is delivered to the person to whom it is directed.
2. Eavesdropping
New York and the majority of U.S. jurisdictions are one-partyconsent states, meaning that a conversation (whether live or on the phone) may be recorded as long as one party consents. Two-party consent states -- where both parties must consent to a conversation being recorded -- include
Secretly recording a conversation where neither party consents is always illegal,even within ones own home. SeePenal Law 250.05 (E felony); 18 U.S.C. 2511; see Pica v. Pica, 70A.D.2d 931, 417 N.Y.S.2d 528 (2d Dept 1979) (husband could not secretly recordconversations his wife had with a third party in the marital home).
Penal Law 250.05defines eavesdropping as unlawfully engag[ing] in wiretapping, mechanicaloverhearing of a conversation, or intercepting or accessing of an electroniccommunication.
Despite terms like acquiring, receiving, and collecting, New York courts have held that an eavesdropping violation requires the contemporaneous interception of electronic communications when they are transmitted. See Moore v. Moore, 2008 N.Y. Misc. LEXIS 5221, 240 N.Y.L.J. 32 (S.Ct. NY County) (in divorce action, husbands internet communications downloaded by wife were admissible because they had not been intercepted contemporaneous to their transmission); Boudakian v. Boudakian, 2008 N.Y. Misc. LEXIS 7532, 240 N.Y.L.J. 123 (S.Ct. Queens County 2008) (internet communications that were not accessed while in transit were admissible because they had not been intercepted); Gurevich v. Gurevich, 24 Misc.3d 808, 886 N.Y.S.2d 558 (S.Ct. Kings County 2009) (since emails were not intercepted while in transit there was no eavesdropping).
Spy software, such as FlexiSpy or StealthGenie, is illegal when it can be hidden on a victim's phone and allows a remote user to monitor phone calls, overhear live conversations in the room where the phone is located, track location, read text messages and emails, and obtain passwords for programs like Facebook or Gmail.
Notably, onNovember 25, 2014, the United States Department of Justice obtained the first ever conviction for the advertising and sale of StealthGenie.See November 25, 2014 U.S. Dept of Justice Press Release.
The defendant in that case was charged with and convicted of violating 18 U.S.C. 2512 (1)(b) and (1)(c)(ii), which prohibit the sale, possession, or advertising of electronic communication intercepting devices. See August 7, 2014 Indictment in United States v. Hammad Akbar, 14-CR-276 (E.D. Va.), PACER Dkt. # 1; see also November 25, 2014 Plea Agreement in United States v. Hammad Akbar, 14-CR-276 (E.D. Va.), PACER Dkt. # 35.
Pursuant toNew York's Civil Practice Law and Rules 4506,eavesdropping evidence is inadmissible in a court proceeding.
Pursuant to New York CPLR 4548, privileged communications made through electronic means, maintain their privilege ("No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.").
3. Hacking Into Someone's Computer
Gaining unauthorized access to someone's computer is illegal, regardless of whether or not it is password protected.
New York Penal Law 156.05, Unauthorized Use of a Computer (A misdemeanor), prohibits accessing a computer or smartphone withoutauthorization,knowingthat the use is without authorization.Unauthorized use includes usethat is in excess of the permission of the owner or the computer or computerservice. PL 156.00 (6).Reasonable grounds to believe youhad permission to use, copy, or destroy computer data is a defense. PL 156.50.
New York Penal Law 156.10, Computer Trespass (E felony), prohibits unauthorized access of a computer, plusintent to commit a felony, orgaining access to computer material (privatecomputer data).
New York Penal Law 156.20, Computer Tampering in the Fourth Degree (A misdemeanor), prohibitsaccessinga computer without authorization, and intentionallydestroying computer data.
New York Penal Law 155.25, Petit Larceny (A misdemeanor)prohibits a person from stealing "property. PL 155.00 includes "computer data within the definition of "property."In contrast to the narrow definition of computer material in PL 156.00 (5), the definition of computer data is quite broad. Computer data is property and means arepresentation of information, knowledge, facts, concepts or instructions whichare being processed, or have been processed in a computer and may be in anyform, including magnetic storage media, punched cards, or stored internally inthe memory of the computer. PL 156.00 (3).
There are several federal statutes that apply to computer crimes.
18 U.S.C. 1030prohibits unauthorized access of acomputer and related conduct.
18 U.S.C. 2511prohibits unauthorized interception of electronic communications.
18 U.S.C.2701 prohibits unauthorized access of stored electronic communications.
4. Pretending To Be A Member of Law Enforcement
Many private investigators are former members of law enforcement. When attempting to interview a witness, one cannot pretend to be a member of law enforcement to induce the witness to cooperate with the investigation.
New York Penal Law 190.25, Criminal Impersonation in the Second Degree (A misdemeanor) makes it a crime when one impersonates another and does anact in such assumed character with intent to obtain a benefit or to injure ordefraud another or (1) pretends to be a member of an organization with intentto benefit or defraud, (2) pretends to be a public servant (or wears a badge oruniform) or pretends to be acting with the approval of a public agency toinduce another to: (i) submit to pretended authority, (ii) solicit funds, (iii)act in reliance on that pretense."
Another means a real person, see Peoplev. Sadiq, 236 A.D.2d 638, 654 N.Y.S.2d 35, leave to appeal denied sub nom. People v. Sikandar, 89 N.Y.2d 1100,660 N.Y.S.2d 394, 682 N.E.2d 995 (1997)
Penal Law 190.26, Criminal Impersonation in the First Degree(E Felony) makes it a crime when onepretends to be a police officer or actingunder the authority of the police and cause another to rely on that pretenseand in the course of which the impersonator commits or attempts to commit afelony orpretends to be a physician or other personlicensed to issue prescriptions and orally communicates a prescription to apharmacist.
5. Secretly Filming Intimate Sexual Conduct
Although secret video surveillance (without sound) is legal, video surveillance that is directed at intimate or sexual conduct is prohibited, such as using a hidden camera to catch a cheating spouse "in the act."
New York Penal Law 250.45, Unlawful surveillance in the second degree (E felony), applies to surveillance that involvesundressing, sexual, or other intimate parts of another where the target has areasonable expectation of privacy.Penal Law 250.65 provides exceptionsfor: (a) law enforcement, (b) a security system with notice posted on thepremises, and (c) a video system installed in a manner that is clear andimmediately obvious.
Notable cases in the news includePeople v. John C.Kelly, Ind. No. 5336-2013 (S.Ct. NY County), in which a prominent banker was charged with violatingPenal Law250.45 (1) for video recordings of sexual encounters with several women,without their consent. Also, People v. Carlo Dellaverson, 5593-2014 (S. Ct. NY County), in which an NBC producer was convicted of unlawful surveillance for posting a secret sex tape of his girlfriend on a porn site.
A interesting civilcase decided on April 9, 2015 is Foster v. Svenson, 2015 N.Y.App.Div. LEXIS 3028 (1st Dept 2015). TheFirst Department held that an artist did not violate a familys right toprivacy, pursuant to New York Civil Rights Law 50 and 51, when he secretlyphotographed the family through the windows of their Manhattan apartment, using a telephotolens. Even though the photographs were publicly displayed and sold as artwork,the court held that (1) the photographs were protected by the First Amendment,under the newsworthy and public concern exemption (which applies to artisticworks) and (2) the manner in which the photographs were obtained using atelephoto lens to secretly photograph a family in their private home (includingtheir minor children) was not sufficiently outrageous to overcome thenewsworthy and public concerns exemption.
The court specifically noted that the photographer whileclearly invasive, does not implicate the type of criminal conduct covered byPenal Law 250.40 et seq., prohibiting unlawful surveillance. Foster, 2015 N.Y.App. Div. LEXIS 3028*22. The court relied on Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993), inwhich the Court of Appeals held that a photographer who trespassed onto thegrounds of a private psychiatric facility to take photographs of Hedda Nussbaum,did not engage in intentional infliction of emotional distress.
In Foster, the court looked to theLegislature to address emerging privacy issues, noting that as illustrated bythe troubling facts here, in these times of heightened threats to privacy posedby new and ever more invasive technologies, we call upon the Legislature to revisitthis important issue, as we are constrained to apply the law as it exists. Id.
In 2015, a defendant was acquitted in Ulster County of attempted unlawful surveillance in connection with using a drone-mounted camera to shoot photos and videos of a medical office building.
6. GPS Tracking
While hiring a private investigator to follow somebody around might be legal, you can't hide a GPS tracking device in someone's car to record their movements, unless you are a legal co-owner of the vehicle. Accordingly, inUnited States v.Jones, 132 S. Ct. 945, 181 L. Ed.2d 91 (2011), the Supreme Court of the United States held that the warrantless attachment of a GPSdevice to suspects car by law enforcement was an illegal trespass thatviolated the Fourth Amendment. see alsoPeople v.Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009) (New YorkState Constitution violated by law enforcements warrantless GPS tracking ofdefendants car for 65 days).
But inVillanova v. Innovative Investigations, Inc., 420 N.J. Super. 353, 21 A.3d 650, 2011 N.J. Super. LEXIS 125 (App. Div. 2011), the New Jersey Appellate Division held that a wife did not violate her husbands right to privacy by secretly installing GPS device on their jointly-owned vehicle to track his movements.
Courts have also held that there is no prohibition of obtaining cellphone locator data maintained by a third party, such as the phone company. SeePeople v. Moorer, 39 Misc.3d 603, 959 N.Y.S.2d 868 (County Ct. Monroe County 2013) (determining the location of apersons cell phone through GPS pinging does not violate Fourth Amendmentprivacy rights); United States v. Davis, 2015 U.S. App. LEXIS 7385 (11th Cir. 2015) (en banc) (no Fourth Amendment violation where government warrantlessly obtained 2 months' worth of robbery suspect'shistorical cell tower location information).
Since 2007, all New York City Taxis are equipped with a Taxi Technology System, including GPS. This information is available via subpoena.
Assuming that a GPS tracking device is being used legally, following someone around can cross the line from legitimate investigation to harassment or stalking.
For example, underPenal Law 240.26 (2), harassment inthe second degree (violation), aperson is guilty of harassment in the seconddegree when, with intent to harass, annoy or alarm another person he or shefollows a person in or about a public place or places.
UnderPenal Law 240.25, harassment in the first degree (B misdemeanor), aperson is guilty of harassment in the first degree when he or she intentionallyand repeatedly harasses another person by following such person in or about apublic place or places.
UnderPenal Law120.45, stalking in the fourth degree (B misdemeanor), aperson isguilty of stalking in the fourth degree when he or she intentionally, and forno legitimate purpose, engages in a course of conduct directed at a specificperson, and knows or reasonably should know that such conduct (1)is likely to cause reasonable fear of material harm to the physicalhealth, safety or property of such person...; (2)causes material harm to the mental or emotional health of suchperson, where such conduct consists of following, telephoning orinitiating communication or contact with such person...and the actor was previously clearly informed to cease thatconduct; or (3)is likely to cause such person to reasonably fear that his or heremployment, business or career is threatened, where such conductconsists of appearing, telephoning or initiating communication orcontact at such person's place of employment or business, and the actorwas previously clearly informed to cease that conduct.
There is also a federal stalking statute.18 U.S.C.2261Aprohibits travelling between states for the purpose of intimidating or harassing another person and places that person in fear of death or injury to themselves or their family members or causes substantial emotional distress.
There is no prohibition against tracking your Pizza Hut delivery driver.
7. Gaining Entry To a Premises Through Deceit
Lying your way into a place that is not open to the public may be considered criminal trespass.
New York Penal Law 140.10, criminal trespass in the third degree (B misdemeanor) makes it a crime toknowingly entering or remaining unlawfully in a building or upon real property.Under Penal Law 140.00 (5), a person enters or remains unlawfully in a premises when he is not licensed or privileged to do so.
A person who gains admittance to premises through intimidation or by deception, trick or artifice, does not enter with license or privilege. Denzer and McQuillan, Practice Commentary to 140.00, McKinneys Penal Law (1967). People v. Graves,76 N.Y.2d 16 (1990);People v. Mitchell, 231 A.D.2d 937, 647 N.Y.S.2d 637 (4th Dep't 1996).
Under New York Penal Law 145.15, Criminal Trespass in the Second Degree (A misdemeanor),a person is guilty of criminal trespass in the second degree when he/she knowinglyenters or remains unlawfully in a dwelling.
8. Obtaining Private Banking Information
It is illegal to trick a bank into providing someone's financial records.
Under federal law,15 U.S.C. 6821(a) prohibits making false, fictitious or fraudulent statements or representations, or using documents that are forged, counterfeit, lost or stolen or contain false or fraudulent statements, to obtain non-public financial information from financial institutions or their customers.
9. Obtaining Someone's Phone Records (Thanks Hewlett-Packard)
In the 2006Hewlett-Packard pretexting case, HP investigated leaks to the media from Board members by hiring private investigators to obtain the phone records of Board members and journalists to discover which Board members and journalists were speaking with each other. The private investigators did this by impersonating the Board members and journalists to the phone companies.
Under federal law,18 USC 1039 (a) prohibits using false and fraudulent statements or representations, or providing false or fraudulent documents, to obtain confidential telephone records from an employee or customer of a telecommunications carrier or IP-enabled voice service provider.
New York General Business Law 399-dd prohibits the unauthorized acquisition of consumer telephone record information.
Penal Law 250.30, unlawfully obtaining communications information (B misdemeanor),makes it a crime to use deception, stealth, or any other manner to obtain from a telephone company any information concerning a record of any telephone communication.
10. Destroying Evidence and Witness Tampering
Taking steps to prevent evidence from being presented in court -- whether by destroying evidence or convincing a witness not to testify -- is illegal.
New York Penal Law 215.40, tamperingwith physical evidence (E felony), makes it illegal tosuppress physical evidence by any actof concealment, alteration or destruction, or by employing force,intimidation or deception against any person. The statutory definition of "physical evidence" found in Penal Law215.35 includes any "article, object, document, record, or other thing of physical substance." At least one court has held that physical evidence may include computer data.see People v. Sandy, 236 A.D.2d 104 (1st Dept 1997)(conviction for erasing computer data).
Similarly, New York Penal Law 215.10, tampering with a witness in the fourth degree (A misdemeanor), prohibits inducing or attempting to induce a witness to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, or (b) knowingly making any false statement or practicing any fraud or deceit with intent to affect the testimony of a witness.
Some Emerging Issues:
1. The Use of Drones To Conduct Surveillance
An emerging issue is the use of drones to conduct surveillance. There is currently no prohibition in New York against the use of drones to conduct surveillance, but several states have passed laws that regulate the use of drones.
Idaho: Private right of action against the use of drones to conduct surveillance on an individual or their dwelling. Idaho Code Ann. 21-213 (2) (a)-(b).
North Carolina: Private right of action against the use of drones to conduct surveillance of a person or dwelling or real property. N.C. Gen. Stat. Ann 15A-300.1 (b)(1)-(2).
Oregon: Private right of action against flying a drone at a height of less than 400 feet above another persons property, if previously asked to stop. Oregon Revised Statutes, ORS 837.380.
Tennessee: Crime of trespass by drone for flying a drone above a private property at a height not regulated as navigable airspace by the FAA. Tenn. Code Ann. 39-14-405.
Texas: Crime and private right of action to use a drone for surveillance of an individual or property, unless the images are immediately destroyed. Tex. Govt Code Ann. 423.003, et seq.
Wisconsin: Crime to use a drone to photograph anyone in a place where the individual has a reasonable expectation of privacy. Wisconsin Statutes, Wis. Stat. 942.10.
See also this article for a discussion of international rules regarding drones. Also, this whitepaper from Reed Smith regarding interesting legal issues regarding drones.
2. Secretly Collecting DNA Evidence
Can you secretly collect someone's DNA for testing?
An ethics complaint was filed against a North Carolina attorney who secretly collected DNA from the water bottle of an individual she suspected of being the real murdered in an innocence project case. DNA testing helped exonerate her client. Additional coverage of that case can be found here.
In another case, Lowe v. Atlas Logistics Group Retail Services, LLC(N.D. GA 2015),the United States District Court for the Northern District of Georgia held that the Genetic Information Nondiscrimination Act (GINA) prohibited an employer from collecting DNA samples from employees for purposes of investigating misconduct (in that case, defecating on the floor of the workplace).
Admissibility of Illegally Obtained Evidence
The Fourth Amendment only applies to the government, not private individuals, so there is no exclusionary rule of a Constitutional nature that applies to evidence obtained illegally by a private individual. Courts have discretion, however, to preclude illegally obtained evidence.
Illegally or unethically obtained evidence is admissible in New York, absent a specific statutory exclusion. Sackler v. Sackler, 15 N.Y.2d 40, 255 N.Y.S.2d 83, 203 N.E.2d 481 (1964) (in a divorce action, evidence of wifes adultery, obtained by means of illegal forcible entry into her home, admissible).
The one exception is that evidence obtained as the result of eavesdropping is not admissible in any proceeding, pursuant toCPLR 4506.
Under New York CPLR 3103 (c), courts have discretion to suppress improperly obtained evidence. CPLR 3103 (c) provides: "Suppression of information improperly obtained. If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed."
Several cases have upheld the court's ability to impose suppression as a sanction. SeeIn re Beiny, 129 A.D.2d 126, 517 N.Y.S.2d 474 (1st Dept), rehg denied, 132 A.D.2d 190, 522 N.Y.S.2d 511 (1st Dept 1987) (improperly subpoenaed documents suppressed); Cippitelli v. Town of Niskayuna, 203 A.D.2d 632, 610 N.Y.S.2d 622 (3d Dept 1994) (soil testing results obtained by trespass suppressed); Wilk v. Muth, 136 Misc. 2d 476, 518 N.Y.S.2d 762 (S.Ct. Suffolk County 1987) (Physician was entitled to suppression of report obtained by plaintiff prior to her commencement of lawsuit against him where plaintiff had falsely stated that she wanted report because she was involved in personal injury action resulting from car accident; physician was clearly misled, and to permit plaintiff to use report prepared under false pretenses would result in substantial prejudice to him); Lipin v. Bender, 84 N.Y.2d 562, 620 N.Y.S.2d 744, 644 N.E.2d 1300 (1994) (sexual harassment case dismissed under CPLR 3103 (c) after plaintiff stole attorney-client privileged defense memos).
On the other hand, if the evidence would have been disclosed anyway during the normal course of litigation (sort of like the inevitable discovery rule, but in the civil context), courts are less likely to order suppression. See, DiMarco v. Sparks, 212 A.D.2d 965, 624 N.Y.S.2d 692 (4th Dept 1995) (CPLR 3103(c) did not require suppression of documents obtained by defendants from non-party regarding application by plaintiffs to refinance their mortgage, even though documents were improperly obtained without notice to plaintiffs, where no documents were privileged, and there was no showing that defendants would not have been entitled to them in normal course of discovery); Gutierrez v. Dudock, 276 A.D.2d 746, 715 N.Y.S.2d 333 (2d Dept 2000) (In personal injury action wherein defendants obtained documents from nonparty insurance company concerning injuries plaintiff sustained in prior accident, without giving notice to plaintiff pursuant to CPLR 3120 (b), plaintiff was not entitled to suppression of documents or imposition of sanctions, costs and counsel fees, as he was not prejudiced by lack of notice, documents in question were not privileged, and defendants would have been entitled to their production in normal course of business).3 comments: Older PostsHomeSubscribe to:Posts (Atom)Subscribe ToPosts Atom PostsAll Comments Atom All CommentsAbout MeUnknownView my complete profileBlog Archive 2015(3) August(1)Contempt of Court in New York: Civil Contempt v. C... June(1) January(1) 2014(3) October(1) August(2)
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