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."

The woman said she kept the door to her bathroom open so she could hear her child if he woke up. She was alerted to the man's presence at her front door, which faced a set of stairs leading up to the bathroom door, when she noticed the red "record" light of a camera through the window, according to the ruling.

The door had a decorative, crescent-shaped window that was above the average eye height, but the 6-foot-2 defendant, holding the camera above his head, could get a clear shot up to the bathroom door, according the court ruling.

She immediately shut the bathroom door and called police. Authorities said they found footprints in the snow in front of her door which they tracked to Schreier's nearby townhouse.

After questioning, police said Schreier acknowledged videotaping the woman and turned over his camera and memory card.

He was convicted after a bench trial in Monroe County Court of second-degree unlawful surveillance and sentenced to five years probation.

Timothy Murphy of Lipsitz Green Scime Cambria in Buffalo represented Schreier.

Murphy said in an interview Thursday that he had hoped the Court of Appeals would have found the unlawful surveillance statute was aimed at preventing illegal videotaping that occurs in bedrooms, locker rooms, bathrooms and other places where activities are otherwise "hidden from all public view." That was the limited reading of "surreptitious" that Murphy said he tried to get the court to adopt.

It had not been clear until the court's ruling Thursday that the statute also covered the taping of anyone "standing in front of a window," such as the images Schreier captured as he stood outside of the woman's front door, Murphy said.

Murphy said Thursday he did not believe the Scheier case involved any interpretation of federal law that would allow an appeal to the U.S. Supreme Court.

Monroe County Assistant District Attorney Nicole Fantigrossi said the court applied the plain meaning of surreptitious, which was prosecutor's position all along.

Lippman noted that the unlawful surveillance statute was established in 2003 to combat "video voyeurism." It was dubbed "Stephanie's Law" after a woman whose landlord hid a video camera in a smoke detector in her bedroom.

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