By Joel Stashenko, from New York Law Journal

A woman’s work email address does not equate to a “place of employment or business,” and thus her ex-girlfriend could not have stalked her by sending unwanted messages to the account, a Manhattan judge decided.

Criminal Court Judge Steven Statsinger said state law refers to a distinct physical location when mentioning a place of employment or business, and he would apply the same standard to an email address when answering what he said was a question of first impression.

Defendant Monique Marian argued that a fourth-degree stalking charge brought against her under Penal Law §120.45(3)—one of three misdemeanor stalking charges she faced—must be dismissed because her alleged criminal conduct did not take place at her former girlfriend’s place of work, as the idea is commonly understood.

Statsinger agreed in People v. Marian, 2015NY021806, finding that it ” makes good sense, absent a contrary instruction from the Legislature, to interpret the same phrase [“place of employment or business”] in the same way across all areas of practice.

“Thus, given New York courts’ consistent view that the phrases ‘place of employment’ and ‘place of business’ refer only to a physical location, this court will apply that same definition here,” Statsinger said.

The judge said it would stretch fair meaning of the phrase “beyond all recognition” to consider people’s work email address as their “place of employment or business.” He cited Rosario v. NES Medical Services of New York, 105 AD3d 831 (2nd Dept. 2013), and Hille v. Gerald Records, 23 NY2d 135 (1968), as two leading examples of where courts have defined places of business or employment as “actual, physical locations.”

Penal Law §120.45(3), a statute that was created in 1999, requires that a person’s conduct consists of “appearing, telephone or initiating communication or contact at such person’s place of employment or business.”

Statinger explained in his decision that the provision was added because stalking behavior had “become more prevalent in New York.”

The overall goal of the Penal Law §120.45, the judge said, was to “recognize the damage to public order and individual safety” caused by stalking as well as the physical and emotional harm it brought victims. But expanding stalking victimization to email accounts at work would do nothing to further the Legislature’s aims when it amended the statute in 1999.

“Including an email address within the purview of the phrase a ‘place or employment or business’ does not specifically further either justice of the statute’s goal,” he wrote.

He dismissed that part of the information charging Marian under Penal Law §120.45(3). But he said a fourth-degree stalking charge brought against her in the same information under Penal Law §120.45(2) may stand because it hinges on Marian exhibiting a course of conduct of contacting a victim repeatedly after being asked to stop—behavior that is not dependent on contacts with the victim at work.

He said a companion charge of falsely reporting an incident in the third degree, also a misdemeanor, was not affected by the email-at-work question and that it stands.

In addition, prosecutors brought a new fourth-degree stalking count against Marian under §120.45(1), a more general statute that defines conduct “likely to cause reasonable fear of material harm to the physical health, safety or property” of a victim as stalking.

Each of the remaining charges are misdemeanors carrying penalties of up to a year in jail.

According to Statsinger’s ruling, Marian initially accused her ex-girlfriend of assaulting her in January 2015, but later admitted the complaint was false. The charge was dismissed and the record sealed.

In the meantime, the former girlfriend said Marian initiated a series of unwanted contacts with her between January and April, including Instagram messages, texts and emails sent to both her home and work addresses. The woman said she received more than 200 messages in all from Marian.

The information indicated that in one message, Marian told the woman, “I wish you would let me find you tonight” and “I’ll always be by your side.”

In addition, the ex-girlfriend said Marian turned up uninvited at several places where she happened to be, including the Hotel Chantelle bar and Bowery Electric club in Manhattan.

“The defendant’s above described conduct has caused me to fear for my physical health and safety,” the woman said in a statement to authorities.

Marian was charged in April 2015 with stalking and falsely reporting an incident.

Jason Richland argued for Marian.

Assistant Manhattan District Attorney Michelle Winters represented the prosecution. The District Attorney’s office declined comment.

For more on this story go to: http://www.newyorklawjournal.com/id=1202732448306/Stalking-Law-Does-Not-Cover-Email-Addresses-Judge-Says#ixzz3gRo7YFoX