Stealth Videotape Violated Woman's Privacy, Court Says

, New York Law Journal

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 an eye looking through a keyhole

ALBANY - A man who videotaped his neighbor as she emerged from the shower in her own bathroom violated the woman's expectation of privacy, according to the state Court of Appeals, which said that the Legislature did not intend for the term "surreptitious" in the state's Penal Law to be too narrowly defined.

In upholding David Schreier's conviction for second-degree unlawful surveillance, a unanimous court rejected Schreier's argument that although the woman did not know she was being taped, he was positioned in a public place when he filmed her through a window in her front door and did not do so "surreptitiously," as Penal Law §250.45[1] prohibits.

Chief Judge Jonathan Lippman (See Profile) wrote in People v. Schreier, 4, that the Penal Law holds that among the circumstances where a person "has a reasonable expectation of privacy" is at a "place and time when a reasonable person would believe that he or she could fully disrobe in private."

"One's own bathroom must certainly be the quintessential example of a location where an individual should expect privacy," Lippman wrote.

He said the fact that the woman's bathroom was on the second floor of her townhouse only bolstered the expectation that she or any other "reasonable person" could expect privacy under the circumstances.

"It cannot be said that the legislature intended New Yorkers to have to shutter their own residences completely in order to garner the protection of this Penal Law provision," Lippman said. "Defendant's conduct was an unmistakable violation of complainant's reasonable expectation of privacy and the evidence was legally sufficient to support this element of the offense."

Lippman added that the Court of Appeals would not review the reasonableness of the woman's expectation of privacy under a Fourth Amendment analysis. The Fourth Amendment is concerned with protecting citizens from unreasonable government intrusions and has "limited relevance" in the context of Schreier's challenge to his conviction, the court held.

Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Robert Smith (See Profile), Eugene Pigott Jr. (See Profile), Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile) joined in the ruling, which backed the affirmance of Schreier's conviction by an Appellate Division, Fourth Department, panel in People v. Schreier, 96 AD3d 1453 (2012).

According to police, Schreier videotaped the woman in 2008 on Christmas Eve morning at 7:30 a.m. The time was relevant because it was before dawn, which came that day at 7:41 a.m. in Rochester, and bolstered the authorities' contention that Schreier acted in a "furtive or stealthy manner" while avoiding detection while he taped.

"In other words," Lippman wrote, "he was acting surreptitiously."

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