AD4: Police officer's creepy come-ons not misdemeanor stalking

People v Watson, 2006 NY Slip Op 06680 [available here

A police officer in Jamestown, New York was charged with multiple counts of Stalking in the Fourth Degree (a B misdemeanor) and Stalking in the Third Degree (an A misdemeanor) based on his aggressive perverted pursuit of at least three women. The B misdemeanor counts were based on the allegations of three women that the cop (among many other things) "exposed his genitals", made inappropriate phone calls, "would sit outside ... in his patrol vehicle and shine the vehicle's lights into her bedroom, and he would grab his genitals while asking her questions such as whether she had dreamed about him." (Watson, 2006 NY Slip Op 06680.) The trial court dismissed some of the B misdemeanor Stalking counts because the women testified that, while they were creeped out by defendant, they were never afraid for their physical safety. The Fourth Department affirmed, noting that a required element of Stalking in the Fourth Degree is that defendant "knew or should have known that his conduct was likely to cause reasonable fear of material harm to the physical health or safety of the women", and the women's testimony that they harbored no such fear precluded the charge. (Id.)

Similar reasoning underpinned the dismissal of the A misdemeanor stalking counts (also affirmed by the AD4). To sustain that charge, the People had to prove that defendant's conduct "was likely to cause such person to reasonably fear . . . the commission of a sex offense against . . .such person [...]." (Id..) Again, the defendants were weirded out by defendant's conduct, but all testified that they did not believe defendant would actually commit a sexual assault. Given that testimony, the Fourth Department held the trial court's dismissal of the A misdemeanor stalking charges was appropriate.