Know the Law: Memo on
 'Course of Conduct'

What does "Course of Conduct" mean in the
Stalking Law?

Thanks to former Albany County Assistant DA 
D.J. Rosenbaum for the following Memorandum.



On December 1, 1999, the New York State Anti-Stalking statutes became effective. In general, the new "stalking" offenses cover cases where an individual intentionally, and with no legitimate purpose, engages in behavior directed toward another person that is likely to cause fear of harm to physical, emotional or mental health, safety, property, employment, business or career. Stalking behavior always requires a "course of conduct" and can be manifested in a variety of forms.

Course of Conduct crimes have a long history. "Such statues embody the notion of the ‘continuous offense doctrine’ and date back to the English case of Crepps v. Durden, 2 Cowp 640 [KB]." People v. Calloway, 672 N.Y.S.2d 638 (Monroe County Ct., 1998).

The phrase "course of conduct" currently appears in a number of sections of the Penal Law, including § 215.51(b)(ii), Criminal Contempt in the First Degree, § 120.14(2), Menacing in the Second Degree, § 240.25, Harassment in the First Degree and all of the Anti-stalking statutes contained within Article 120. "Course of conduct", however, has yet to be defined by the Penal Law and has, thus been subject solely to judicial interpretation.

The Court of Appeals has held that to establish that a defendant did engage in a course of conduct or repeatedly commit acts which alarm or seriously annoy another person, there must be evidence that the defendant’s conduct was not an "isolated incident". People v. Wood, 59 N.Y.2d 811, 812 (1983). The court in Calloway defined a "continuous crime" as one that "by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time." Id. at 640. Further, the court opined, language in the specific penal statute may give guidance as to whether multiple acts may be charged as a continuing crime or one specific, discrete act. Calloway, [citing People v. Shack, 86 N.Y.2d 529, 540-41(1995)].

One of the earliest cases to add meaning to the phrase "course of conduct" was People v. Hotchkiss, 59 Misc.2d 823, 300 N.Y.S.2d 405 (Schuyler County Ct., 1969). In that case, after a disturbance at a race track, the defendant was apprehended by a deputy sheriff who immediately seized the defendant’s loaded .38 caliber gun. The defendant then stated "[I]f I could have drawn my gun fast enough, I would have shot you." The court held that the defendant’s statement did not constitute the type of course of conduct contemplated by PL § 240.25(5), Harassment in the First Degree. "In this court’s opinion, ‘course of conduct’ is more than an isolated verbal or physical act[;] [i]t is a pattern of conduct composed of [the] same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose in the mind of the actor." Hotchkiss at 407. The court went on to liken its definition to a "boy who cried wolf" scenario and to instances where one would repeatedly make "hang-up phone calls". Id. Under this analysis, the term "course of conduct" refers to actions that are persistent and are similar to the original action, or an extension of it, and does not apply to a mere isolated incident.

In 1972, the District Court in Suffolk County adopted the Hotchkiss court’s definition of "course of conduct" and expanded it to encompass the phrase "or repeatedly commits acts", which is also contained within the Harassment statute. People v. Caine, 70 Misc.2d 178, 33 N.Y.S.2d 208. There the court noted that "[g]enerally, the use of the disjunctive ‘or’ indicates that the language is to be construed in an alternative sense." Id. at 170. Instead, though, the court chose to interpret the "or" as "and", reasoning that this was more in line with the legislative intent, and to interpret it otherwise would lead one to define "course of conduct" as a single act. Id. Using this interpretation, the Caine court found that the defendant in that case, who had argued with a police officer and used foul language when issued a traffic ticket, did not engage in a course of conduct. Id.

A different conclusion was reached in People v. Tralli, 88 Misc.2d 117, 387 N.Y.S.2d 37 (Sup.Ct.App.Term, 1976). In that case, the defendant, who had been called to the home of the victim to repair a piece of furniture, "maneuvered her into a position where she would readily observe that he had exposed himself." Id. The court noted that the defendant played an active role in creating the situation and that his actions were "calculated and deliberate", in contrast to the "spontaneous, emotional, verbal outbursts" noted in Hotchkiss and Caine, and thus his behavior constituted a "course of conduct". Id. at 117. Under this interpretation, a "course of conduct" involves a situation that is created by the defendant.

The Tralli court rejected the reasoning of the courts in Hotchkiss and Caine and stated that "[t]he use of the disjunctive ‘or’ indicates that the language is to be construed in the alternative sense[;] [t]herefore, in order for a pattern of behavior to constitute a course of conduct, it is unnecessary for a defendant to repeatedly commit acts." Id.

Since the Tralli holding, the term "course of conduct" has been deemed to "reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." People v. Payton, 161 Misc.2d 170, 174, 612 N.Y.S.2d 815 (N.Y.Crim.Ct., Kings County, 1994). "Continuity of purpose", the court held, requires that the acts be similar to the original act and in line with the defendant’s original intent. Id.

The "period of time" encompassed by a course of conduct can be extremely brief. In People v. Murray, 167 Misc.2d 857, 635 N.Y.S.2d 928 (1995), a case wherein the defendant was convicted of Menacing in the Second Degree and Harassment in the First Degree, the relevant course of conduct lasted for approximately five to eight minutes. In that case, the defendant was found to have walked alongside the victim to her office, barred her way when she sought to enter, continued to follow the victim as she then walked up the street, forcibly prevented her from seeking help from a passenger in a nearby van and, finally, grabbed her arm when she attempted to open the van’s door and dragged her toward a park. Id. A course of conduct can also encompass an extended period of time, as was the case in Payton, id., where the course of conduct extended to well over a year. In fact, for misdemeanor crimes, the course of conduct can encompass a two-year period, and in felony cases the time-frame increases to five years.

Judicial interpretation of the meaning of the phrase "course of conduct" in New York is similar to various states’ stalking laws and Federal proposed legislation. For example, in California, the standardized jury instruction for "course of conduct" defines it as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." Cal.JIC 16.480 Stalking [Pen.Code § 646.9(A)] Consider, also, § 95 of the Kansas Stalking Law, which defines a "course of conduct" as a "pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person." Also of interest is the Model Stalking Law contained within the 1996 report issued by the U.S. Attorney General pursuant to the Violence Against Women Act wherein a course of conduct is defined as "repeatedly maintaining a visual[, audio] or physical proximity to a person or repeatedly conveying verbal or written threats or threats implied by conduct or a combination thereof directed at or toward a person." Callie Anderson Marks, The Kansas Stalking Law: A "Credible Threat" to Victims. A Critique of the Kansas Stalking Law and Proposed Legislation, Wasburn L.J. (1997) (quoting the Model Anti-stalking Code for the State).


As far as New York is concerned, it seems clear that a "course of conduct" includes:

1. an intentional pattern of conduct

2. encompassing a period of time, no matter how short,

3. evidencing a continuity of purpose.


Current case law, however, is merely persuasive and is not controlling. Thus, it also seems clear that each case must be evaluated on its own merits and individual fact-patterns and the door is open for additional judicial interpretation.


Prepared by the Domestic Violence Team of Albany County, March 2000, with grateful appreciation of the assistance of Torrie Harris, Albany Law School.