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.