| People v Schreier |
| 2012 NY Slip Op 04552 [96 AD3d 1453] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidW. Schreier, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), renderedFebruary 16, 2011. The judgment convicted defendant, upon a nonjury verdict, of unlawfulsurveillance in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict ofunlawful surveillance in the second degree (Penal Law § 250.45 [1]), defendant contendsthat the conviction is not supported by legally sufficient evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). We reject that contention. The evidence establishedthat defendant videotaped the victim through a window as she stood naked in her bathroom.Although defendant concedes that he videotaped the victim without her knowledge or consent, hecontends that the People failed to establish the remaining three elements of unlawful surveillancein the second degree (see § 250.45 [1]). We disagree. County Court was entitled toinfer from the evidence the first two remaining elements, i.e., that defendant made the recordingfor his own amusement or entertainment, and that he "intentionally use[d] . . . animaging device to surreptitiously . . . record" the victim (id.). With respectto the surreptitious nature of the recording, we note that defendant videotaped the victim in theearly morning hours, around dawn, obscured himself and his compact camera from the victim'sview and, when confronted by the police, initially denied that a recording existed.
We likewise conclude that the court was entitled to infer from the evidence the thirdremaining element of the crime, i.e., that the recording was made at "a place and time when areasonable person would believe that he or she could fully disrobe in privacy" (§ 250.40[1]; see § 250.45 [1]). The victim was recorded at 7:30 a.m. in the second-floorbathroom of her home as she was preparing for work. Her location was largely obscured fromoutside view, except from a particular vantage point through a certain window that could beobtained only by a person of above-average height, standing immediately outside her door. Evenfrom that vantage point, the victim was only partially visible. The victim testified that she did notbelieve that an individual standing outside her home could see her bathroom through the windowbecause she was unable to see through the window while standing at the front door, and "[she]didn't realize anyone[*2][c]ould have [the necessary] angle."
Finally, viewing the evidence in light of the elements of the crime in this bench trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Present—Scudder, P.J., Centra,Peradotto, Carni and Lindley, JJ.