Contempt of Court in New York: Civil Contempt v. Criminal Contempt (and the privilege against self-incrimination)

Judge Rayford: Mr. Kirkland you are out of order!

Arthur Kirkland: You're out of order! You're out of order! The whole trial is out of order! They're out of order! 

...And Justice for All (1979)

While everyone has heard of being in “contempt of court,” this article discusses the legal principles of contempt proceedings, the differences between civil and criminal contempt, and the privilege against self-incrimination in a contempt proceeding.

Civil Contempt v. Criminal Contempt

There are two types of contempt of court -- civil contempt and criminal contempt. Although the same act may be punishable as both a civil and a criminal contempt, the two types of contempt serve different purposes and have different requirements.

1.  Civil Contempt

“A civil contempt is one where the rights of an individual have been harmed by the contemnor’s failure to obey a court order . . . Any penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both.” Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 239, 519 N.Y.S.2d 539, 513 N.E.2d 706 (1987). “Imposing a civil contempt sanction as a solely punitive measure is in a sense an aberration from the generally recognized distinction between criminal and civil contempt and the function of civil contempt.” N.A. Dev. Co. v. Jones, 99 A.D.2d 238, 240, 472 N.Y.S.2d 363, 365 (1st Dep’t 1984); see also State v. Unique Ideas, Inc., 44 N.Y.2d 345, 348, 4-5 N.Y.S.2d 656, 658 (1978) (unlike … criminal contempt where deterrence is the aim . . . civil contempt … must be remedial in nature and effect”); Moran v. Philmont, 147 A.D.2d 230, 235, 542 N.Y.S.2d 873, 876 (3d Dep’t 1989) (“fine for civil contempt must be remedial in nature and designed only to compensate the aggrieved party”).

A court's power to punish for civil contempt is found in New York Judiciary Law § 753, which lists the circumstances in which a person may be held in civil contempt, including:

1. misbehavior or disobedience by an officer of the court (attorney, clerk, sheriff, etc.),
2. a party posting fictitious bail or a fictitious surety or any other deceit,
3. nonpayment of certain sums of money,
4. rescuing property or impeding testimony, without authority,
5. refusing to obey a subpoena,
6. improper communications by a juror,
7. disobedience of a higher court by a lower court,
8. any other case where civil contempt has traditionally been used.

New York CPLR § 5251 also establishes that refusal or willful neglect of any person to obey a subpoena or restraining notice; false swearing upon an examination or in answering written questions; and willful defacing or removal of a posted notice of sale before the time fixed for the sale, shall each be punishable as a contempt of court. New York Domestic Relations Law § 245, authorizes the use of civil contempt proceedings to enforce a money judgment in a divorce case.

The three elements of of civil contempt are: (1) a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed, (2) the party to be held in contempt must have had knowledge of the order, and (3) prejudice to the rights of a party to the litigation must be demonstrated. McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 341, 639 N.E.2d 1132, 1138 (1994).

The third element -- prejudice -- is usually the most difficult element to prove, but failing to demonstrate prejudice is fatal to a contempt motion. See Matter of Peer, 50 A.D.3d 1511, 1512, 856 N.Y.S.2d 385, 387 (4th Dep’t 2008) (contempt motion denied where there was no showing of prejudice based on delay in producing documentation and information); El-Dehdan v. El-Dehdan, 114 A.D.3d 4, 12, 978 N.Y.S.2d 239, 246 (2d Dep’t 2013) (for civil contempt, there must be a finding that a “right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced….[t]he element of prejudice to a party’s rights is essential to civil contempt.”).

The standard of proof to find someone in civil contempt is "reasonable certainty." Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 283, 453 N.E.2d 508, 513 (1983); Matter of Hynes v. Hartman, 63 A.D.2d 1, 406 NYS 2d 818 (1st Dept 1978).

An application to punish for civil contempt may be made by order to show cause, pursuant to New York Judiciary Law § 756.

“New York law permits the party in contempt to purge the contempt by performing the act required, or by undoing or reversing the acts constituting the contempt. Silverstein v. Aldrich, 76 A.D.2d 911, 429 N.Y.S.2d 41 (2d Dep’t 1980).” Chue v. Clark, 46 Misc. 3d 973, 989, 999 N.Y.S.2d 676, 688 (S.Ct. Monroe County 2014); see also Dankner v. Steefel, 41 A.D.3d 526, 528, 838 N.Y.S.2d 601, 604 (2d Dep’t 2007) (court should have provided opportunity to purge contempt); Pronti v. Allen, 13 A.D.3d 1034, 1036, 787 N.Y.S.2d 470, 472 (3d Dep’t 2004) (“contemnor generally allowed an opportunity to purge the contempt by performing the act required …”).

The penalties for civil contempt, pursuant to Judiciary Law § 774, include:

• imprisonment until the act is performed (if within the offender's power),
• a fine (discussed below),
• if the act has been performed, no more than 3 months to pay a fine less than $500,
• if the act has been performed, no more than 6 months to pay a fine more than $500.

With regard to imprisonment, Judiciary Law § 775 provides that “Where the commitment was made to punish a contempt of court committed with respect to an enforcement procedure under the civil practice law and rules, and the offender has purged himself of contempt as provided in section seven hundred seventy-two or seven hundred seventy-three of this article, the court out of which the execution was issued shall make an order directing him to be discharged from the imprisonment.”

With regard to the fine, Judiciary Law § 773 authorizes the imposition of two different types of fines. First, where actual loss or injury has resulted from a party’s misconduct, a fine may be imposed sufficient to indemnify the aggrieved party. Second, where it is not shown that an actual loss or injury has been cause, a fine may be imposed, not exceeding the amount of the complainant’s costs and expenses, plus $250. See Judiciary Law § 773; State v. Unique Ideas, Inc., 44 N.Y.2d 345, 349, 405 N.Y.S.2d 656, 658, 376 N.E.2d 1301, 1303 (1978). Unlike fines for criminal contempt where deterrence is the goal, civil contempt fines must be remedial in nature and effect. The award should be formulated not to punish an offender, but solely to compensate or indemnify private complainants. Id.

No fine may be imposed, unless there has been a finding of contempt. See Van Nostrand v. Town of Denning, 203 A.D.2d 687, 610 N.Y.S.2d 356, 357 (3d Dep’t 1994) (“no finding of contempt having been made, there was no basis for the imposition of a fine (see, Matter of Bender & Bodnar v. Buell, 143 A.D.2d 661, 662, 533 N.Y.S.2d 17 (2d Dep’t 1988)”); see also Bank of Am., N.A. v. Sigo Mfr. L.L.C., 2012 N.Y. Misc. LEXIS 99 (S.Ct. Albany County 2012) (fine consisting of Plaintiff’s costs in bringing contempt motion waived if contempt purged).

If, however, the Court makes a finding of civil contempt and imposes a fine for costs and expenses, the prevailing party is required to submit an affidavit that specifies “in detail the time spent, the hourly rate and the nature and extent of the services rendered.” See Young Woo & Assoc., LLC v. Kim, 2012 N.Y. Misc. LEXIS 6413 *9, 2012 NY Slip Op 33437(U) (S.Ct. New York County 2012) (citing Blau v. Blau, 309 A.D.2d 672, 673, 766 N.Y.S.2d 347 (1st Dep’t 2003) (citing Skidelsky v. Skidelsky, 279 A.D.2d 356, 719 N.Y.S.2d 88 (1st Dep’t 2001)). See also Vider v. Vider, 85 A.D.3d 906, 908, 925 N.Y.S.2d 189, 192 (2d Dep’t 2011) (where no showing of actual damages resulting from contempt, fine capped at $250).

A prevailing party bears the burden of showing by sufficient evidence that the attorney’s fees sought are reasonable, and the Court has the discretion to determine that the amount of any legal fees is reasonable. Young Woo & Assoc., LLC v. Kim, 2012 N.Y. Misc. LEXIS 6413 *9.

2.  Criminal Contempt

Criminal contempt can be punished under both the Judiciary Law and New York's Penal Law.

Criminal Contempt Under the Judiciary Law

A criminal contempt under the Judiciary Law involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates. Unlike civil contempt, the aim in a criminal contempt proceeding is solely to punish the contemnor for disobeying a court order, the penalty imposed being punitive rather than compensatory. State v. Unique Ideas, Inc., 44 N.Y.2d 345, 349, 405 N.Y.S.2d 656, 658, 376 N.E.2d 1301, 1303 (1978).

A court's power to punish for criminal contempt found in Judiciary Law § 750 lists the circumstances in which a person may be held in criminal contempt, including:

1. disorderly, contemptuous, or insolent behavior in the presence of the court,
2. disturbances which interrupt the court proceedings,
3. willful disobedience of a lawful mandate,
4. willful resistance of a lawful mandate,
5. refusal to be sworn as a witness or answer questions,
6. publication of false or grossly inaccurate reports of court proceedings,
7. failure to respond to a jury summons,
8. unlawful practice of law.

The elements for criminal contempt are similar to civil contempt, except that no showing of "prejudice" is needed since the right of the private parties to the litigation is not the controlling factor in criminal contempt.

Courts have also recognized the degree of "willfulness" as another distinguishing element between civil and criminal contempt. To be found guilty of criminal contempt, the contemnor must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding. See Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 542, 513 N.E.2d 706, 709 (1987) (citing Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583).

For example, Judiciary Law § 753 (a)(1) (civil contempt) authorizes a finding of civil contempt "for disobedience to a lawful mandate of the court." In comparison, Judiciary Law § 750 (criminal contempt) authorizes a court to punish for "willful disobedience to its lawful mandate." (emphasis supplied). But see, New York CPLR § 5251 ("willful neglect of any person to obey a subpoena and willful defacing or removal of a posted notice of sale before the time fixed for the sale, shall each be punishable as a contempt of court"); see also, Judiciary Law § 753 (a)(1) (civil contempt for "willful neglect of [judicial] duty;" Judiciary Law § 753 (a)(4) (civil contempt for "willfully preventing, or disabling from attending or testifying, a witness, or party to an action").

The standard of proof for criminal contempt is proof beyond a reasonable doubt. County of Rockland v. Civil Serv. Emples. Ass'n, 62 N.Y.2d 11, 14, 475 N.Y.S.2d 817, 818, 464 N.E.2d 121, 122 (1984) ("The applicable standard of proof to establish criminal contempt is proof beyond a reasonable doubt."); Young v. United States ex rel. Vuitton Et Fils S. A., 481 U.S. 787, 798-99, 107 S. Ct. 2124, 2133, 95 L. Ed. 2d 740, 753 (1987) (listing the procedural rights of defendants in criminal contempt proceedings, including proof of guilt beyond a reasonable doubt).

But a 1987 Court of Appeals decision -- decided after the United States Supreme Court decided Young -- suggested that the standard of proof for criminal contempt is the same as for civil contempt - "reasonable certainty." See Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 542, 513 N.E.2d 706, 709 (1987) ("To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect (supra, at 583). It must also appear with reasonable certainty that the order has been disobeyed (citing Pereira v. Pereira, 35 N.Y.2d 301, 308, 361 N.Y.S.2d 148, 154, 319 N.E.2d 413, 418 (1974))."); see also Odimgbe v. Dockery, 153 Misc. 2d 584, 582 N.Y.S.2d 909 (NYC Civil Ct. Kings County 1992) (noting that the standard for both civil and criminal contempt was the same, that of "reasonable certainty") (citing Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y.).

The penalties for criminal contempt, pursuant to New York Judiciary Law § 751, include:

• a fine of up to $1,000,
• 30 days in jail,
• 3 months in jail for violating an order of protection.

Ironically, the penalties for criminal contempt are less severe than the penalties for civil contempt.

If a person is summarily imprisoned for either civil or criminal contempt committed in the presence of the court, the reasons must be stated in writing and are reviewable in an Article 78 proceeding. See New York Judiciary Law §§ 752 and 755. If there is a finding of contempt following a full hearing and an adequate record is established, the contempt finding may be challenged in a direct appeal. See People v. Clinton, 42 A.D.2d 815, 346 N.Y.S.2d 345, 345-346 (3d Dep't 1972) (direct appeal where an adequate record exists).

Criminal Contempt Under The Penal Law

Criminal contempt under the Penal Law is a crime, conviction for which can result in the severe consequences common to all criminal convictions.

Criminal contempt can be prosecuted by the State as a criminal offense (A misdemeanor) under New York Penal Law § 215.50, criminal contempt in the second degree, which mostly tracks the language of Judiciary Law § 750 for the same conduct and adds a prohibition against protesting in front of a courthouse concerning a trial taking place.

To make matters worse, Penal Law § 215.54 specifically authorizes a prosecution for criminal contempt under Penal Law § 215.50, following a finding of contempt under Judiciary Law § 750. Notwithstanding this possibility of dual findings of criminal contempt, Judiciary Law § 776 requires that any punishment under the Penal Law, must take into consideration a previous punishment under the Judiciary Law.

More serious forms of criminal contempt include refusal to be sworn as a grand jury witness, which is an E felony, pursuant to Penal Law § 215.51, criminal contempt in the first degree, as is disobeying an order of protection. There is also a crime of aggravated criminal contempt (D felony), pursuant to Penal Law § 215.52, which addresses repeated contempt violations.

All of the procedural rights that apply to any criminal prosecution -- jury trial, right to counsel, etc. -- apply to criminal prosecutions for criminal contempt.

A Person May Not Be Held In Contempt for Asserting His Privilege Against Self-Incrimination

A fair amount of contempt litigation involves a subpoenaed witness's refusal to answer questions based on the privilege against self-incrimination. New York CPLR § 5251 establishes that refusal or willful neglect of any person to obey a subpoena shall each be punishable as a contempt of court. See also Judiciary Law § 750 (A)(5); Judiciary Law § 753 (A)(5); New York Penal Law § 215.50 (A)(4).

A witness may properly assert his privilege against self-incrimination during either a civil or criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (explaining that the Fifth Amendment permits an individual “not to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answer might incriminate him”).

A party may not be held in contempt for asserting the privilege against self-incrimination. See El-Dehdan v. El-Dehdan, 114 A.D.3d at 13, 978 N.Y.S.2d at 253 (“The defendant correctly contends that a party may not be held in criminal contempt solely for a justified assertion of the Fifth Amendment privilege.”); County of Orange v. Rodriguez, 283 A.D.2d 494, 724 N.Y.S.2d 477 (2d Dep’t 2001) (“it is well settled that a party may not be held in contempt based upon his or her good faith invocation of the Fifth Amendment privilege against self-incrimination in response to questions posed at a hearing”) (citing United States v. Rylander, 460 U.S. 752, 760 (1983); United States v. Edgerton, 734 F.2d 913 (2d Cir.1984); Federal Deposit Ins. Corp. v. Salesman Unlimited Agency Corp., 101 A.D.2d 876 (2d Dep’t 1984)); see also Ryder v. Harris, 93 A.D.2d 971, 972, 463 N.Y.S.2d 76 (3d Dep’t 1983) (annulling contempt finding and sentence of incarceration where witness asserted Fifth Amendment privilege against self-incrimination); Matter of Solerwitz v. Signorelli, 183 A.D.2d 718, 719, 583 N.Y.S.2d 296 (2d Dep’t 1992) (criminal contempt sanction improper where attorney was directed to turn over estate assets to the Surrogate’s Court, and the attorney asserted the privilege in response to the question of what had become of the assets).

The Supreme Court has held that the Fifth Amendment guarantee must be broadly construed to serve the right it was designed to protect, Arndstein v. McCarthy, 254 U.S. 71, 72-73, 41 S.Ct. 26, 26-27, 65 L.Ed. 138 (1920); Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892). “The privilege extends not only to those disclosures that in and of themselves would support a conviction, but also to those that might ‘furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.’” United States v. Lumpkin, 192 F.3d 280, 285 (2d Cir. 1999) (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)).

This also applies to the act of production privilege against self-incrimination. See CVL Real Estate Holding Co. LLC v. Weinstein, 35 Misc. 3d 1215(A), 951 N.Y.S.2d 85 (S.Ct. New York County 2012) (discussing act of production privilege in context of contempt motion) (relying on United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984)).

The Second Circuit has held that even where the risk of criminal prosecution is slight or remote, a witness may properly assert his privilege against self-incrimination, since it is not for the trial judge to “assess the practical possibility that prosecution would result from incriminatory answers. Such assessment is impossible to make because it depends on the discretion exercised by a United States Attorney or his successor.” United States v. Miranti, 253 F.2d 135, 138 (2d Cir. 1958) (holding that witness can invoke his privilege against self-incrimination where practically there is only a slight possibility of prosecution). See also, In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir. 1979) (privilege against self-incrimination is available even where the risk of criminal prosecution is remote).

Determining whether the privilege is available in given circumstances thus involves essentially a factual inquiry. OSRecovery, Inc. v. One Groupe Intl., Inc., 262 F.Supp.2d 302, 306 (S.D.N.Y. 2003). A judge must determine, ‘“from the implications of the question, in the setting in which it is asked,’ whether ‘a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’” Id. (citation omitted).

"In assessing the validity of an assertion of Fifth Amendment privilege, the court must look to all of the circumstances of the case and 'be governed as much by personal perceptions of the peculiarities of the case as by the facts actually in evidence.'" G.D. Searle & Co. v. Interstate Drug Exchange, Inc., 117 F.R.D. 495, 500 (E.D.N.Y. 1987) (citing Hoffman, 341 U.S. at 486). The court may "order a witness to answer if it clearly appears he is mistaken as to the justification for the privilege or is advancing his claim as a subterfuge." G.D. Searle & Co., 117 F.R.D. at 500 (internal cite omitted).

In making this determination and when the incriminatory potential of a discovery request is not clear on its face, an in camera conference is consonant with the notion that a witness need not surrender “the very protection that the privilege is designed to guarantee” in order to invoke it. Hoffman, 341 U.S. at 486, 71 S.Ct. at 818.  The Supreme Court has repeatedly looked with favor upon the practice of in camera review of various privileges against disclosure. See United States v. Zolin, 491 U.S. 554, 109 S.Ct. 2619, 2629, 105 L.Ed.2d 469 (1989) (in camera review of applicability of crime-fraud exception to attorney-client privilege); Kerr v. United States District Court, 426 U.S. 394, 406, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (suggesting that in camera review is a “highly appropriate and useful means of dealing with claims of governmental privilege”).

Of course, any assertion of the privilege against self-incrimination must be in good faith. See Federal Deposit Ins. Corp. v. Salesmen Unlimited Agency Corp., 101 A.D.2d 876 (2d Dep't 1984). The Second Department has noted that a court may sanction a party for refusing to answer questions where there is no showing of a good faith basis for invoking the privilege against self-incrimination. El-Dehdan, 114 A.D.3d at 22.

Top 10 Things NOT To Do In An Investigation -- Illegal Investigation Techniques in New York

Winning in court requires thorough investigation, but zealous advocacy must not cross the line into criminal conduct. Lawyers may be responsible for the conduct of their private investigators.

Avoid these illegal investigative techniques:

1.  Opening Someone's Mail

It might be tempting to open mail addressed to a spouse or business partner with whom there is litigation or just suspicion, but doing so is a crime.

New York Penal Law § 250.25 (1), tampering with private communications (B misdemeanor), prohibits opening or reading a sealed letter or other sealed private communication without the consent of the sender or receiver. PL § 250.25 (2) prohibits divulging the contents or any portion of a sealed letter, without the consent of the sender or receiver.

Under federal law, 18 U.S.C. § 1702 makes it a crime, punishable by up to 5 years in prison, to take or open a letter after it has been placed in the mail, before it is delivered to the person to whom it is directed.

2.  Eavesdropping

New York and the majority of  U.S. jurisdictions are one-party consent states, meaning that a conversation (whether live or on the phone) may be recorded as long as one party consents. Two-party consent states -- where both parties must consent to a conversation being recorded -- include California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington.

Secretly recording a conversation where neither party consents is always illegal, even within one’s own home. See Penal Law § 250.05 (E felony); 18 U.S.C. § 2511; see Pica v. Pica, 70A.D.2d 931, 417 N.Y.S.2d 528 (2d Dep’t 1979) (husband could not secretly record conversations his wife had with a third party in the marital home).

Penal Law § 250.05 defines eavesdropping as “unlawfully engag[ing] in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.” Penal Law § 250.00(6) defines “intercepting or accessing of an electronic communication” as the intentional “acquiring, receiving, collecting, overhearing, or recording of an electronic communication.”

Despite terms like “acquiring, receiving, and collecting,” New York courts have held that an eavesdropping violation requires the contemporaneous interception of electronic communications when they are transmitted. See Moore v. Moore, 2008 N.Y. Misc. LEXIS 5221, 240 N.Y.L.J. 32 (S.Ct. NY County) (in divorce action, husband’s internet communications downloaded by wife were admissible because they had not been “intercepted” contemporaneous to their transmission); Boudakian v. Boudakian, 2008 N.Y. Misc. LEXIS 7532, 240 N.Y.L.J. 123 (S.Ct. Queens County 2008) (internet communications that were not accessed while in transit were admissible because they had not been “intercepted”); Gurevich v. Gurevich, 24 Misc.3d 808, 886 N.Y.S.2d 558 (S.Ct. Kings County 2009) (since emails were not intercepted while “in transit” there was no eavesdropping).

Spy software, such as FlexiSpy or StealthGenie, is illegal when it can be hidden on a victim's phone and allows a remote user to monitor phone calls, overhear live conversations in the room where the phone is located, track location, read text messages and emails, and obtain passwords for programs like Facebook or Gmail.

Notably, on November 25, 2014, the United States Department of Justice obtained the first ever conviction for the advertising and sale of StealthGenie. See November 25, 2014 U.S. Dep’t of Justice Press Release.

The defendant in that case was charged with and convicted of violating 18 U.S.C. §§ 2512 (1)(b) and (1)(c)(ii), which prohibit the sale, possession, or advertising of electronic communication intercepting devices. See August 7, 2014 Indictment in United States v. Hammad Akbar, 14-CR-276 (E.D. Va.), PACER Dkt. # 1; see also November 25, 2014 Plea Agreement in United States v. Hammad Akbar, 14-CR-276 (E.D. Va.), PACER Dkt. # 35.

Pursuant to New York's Civil Practice Law and Rules § 4506, eavesdropping evidence is inadmissible in a court proceeding.

Pursuant to New York CPLR § 4548, privileged communications made through electronic means, maintain their privilege ("No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.").

3.  Hacking Into Someone's Computer

Gaining unauthorized access to someone's computer is illegal, regardless of whether or not it is password protected.

New York Penal Law § 156.05, Unauthorized Use of a Computer (A misdemeanor), prohibits accessing a computer or smartphone without authorization, knowing that the use is without authorization. “Unauthorized use” includes use that is “in excess of the permission” of the owner or the computer or computer service. PL § 156.00 (6). “Reasonable grounds to believe” you had permission to use, copy, or destroy computer data is a defense. PL §156.50.

New York Penal Law § 156.10, Computer Trespass (E felony), prohibits unauthorized access of a computer, plus intent to commit a felony, or gaining access to “computer material” (private computer data).

New York Penal Law § 156.20, Computer Tampering in the Fourth Degree (A misdemeanor), prohibits accessing a computer without authorization, and intentionally destroying computer data.

New York Penal Law § 155.25, Petit Larceny (A misdemeanor) prohibits a person from stealing "property.” PL § 155.00 includes "computer data” within the definition of "property." In contrast to the narrow definition of “computer material” in PL §156.00 (5), the definition of “computer data” is quite broad.  “’Computer data’ is property and means a representation of information, knowledge, facts, concepts or instructions which are being processed, or have been processed in a computer and may be in any form, including magnetic storage media, punched cards, or stored internally in the memory of the computer.” PL § 156.00 (3).

There are several federal statutes that apply to computer crimes.

18 U.S.C. § 1030 prohibits unauthorized access of a computer and related conduct.

18 U.S.C. § 2511 prohibits unauthorized interception of electronic communications.

18 U.S.C. § 2701 prohibits unauthorized access of stored electronic communications.

4.  Pretending To Be A Member of Law Enforcement

Many private investigators are former members of law enforcement. When attempting to interview a witness, one cannot pretend to be a member of law enforcement to induce the witness to cooperate with the investigation.

New York Penal Law § 190.25, Criminal Impersonation in the Second Degree (A misdemeanor) makes it a crime when one “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” or (1) pretends to be a member of an organization with intent to benefit or defraud, (2) pretends to be a public servant (or wears a badge or uniform) or pretends to be acting with the approval of a public agency to induce another to: (i) submit to pretended authority, (ii) solicit funds, (iii) act in reliance on that pretense."

“Another” means a “real person,” see Peoplev. Sadiq, 236 A.D.2d 638, 654 N.Y.S.2d 35, leave to appeal denied sub nom. People v. Sikandar, 89 N.Y.2d 1100,660 N.Y.S.2d 394, 682 N.E.2d 995 (1997)

Penal Law § 190.26, Criminal Impersonation in the First Degree (E Felony) makes it a crime when one pretends to be a police officer or acting under the authority of the police and cause another to rely on that pretense and in the course of which the impersonator commits or attempts to commit a felony or pretends to be a physician or other person licensed to issue prescriptions and orally communicates a prescription to a pharmacist.

5.  Secretly Filming Intimate Sexual Conduct

Although secret video surveillance (without sound) is legal, video surveillance that is directed at intimate or sexual conduct is prohibited, such as using a hidden camera to catch a cheating spouse "in the act."

New York Penal Law § 250.45, Unlawful surveillance in the second degree (E felony), applies to surveillance that involves undressing, sexual, or other intimate parts of another where the target has a reasonable expectation of privacy. Penal Law § 250.65 provides exceptions for: (a) law enforcement, (b) a security system with notice posted on the premises, and (c) a video system installed in a manner that is clear and immediately obvious.

Notable cases in the news include People v. John C. Kelly, Ind. No. 5336-2013 (S.Ct. NY County), in which a prominent banker was charged with violating Penal Law § 250.45 (1) for video recordings of sexual encounters with several women, without their consent. Also, People v. Carlo Dellaverson, 5593-2014 (S. Ct. NY County), in which an NBC producer was convicted of unlawful surveillance for posting a secret sex tape of his girlfriend on a porn site.

A interesting civil case decided on April 9, 2015 is Foster v. Svenson, 2015 N.Y.App.Div. LEXIS 3028 (1st Dep’t 2015). The First Department held that an artist did not violate a family’s right to privacy, pursuant to New York Civil Rights Law §§ 50 and 51, when he secretly photographed the family through the windows of their Manhattan apartment, using a telephoto lens. Even though the photographs were publicly displayed and sold as artwork, the court held that (1) the photographs were protected by the First Amendment, under the “newsworthy and public concern exemption” (which applies to artistic works) and (2) the manner in which the photographs were obtained – using a telephoto lens to secretly photograph a family in their private home (including their minor children) – was not sufficiently “outrageous” to overcome the “newsworthy and public concerns exemption.”

The court specifically noted that the photographer “while clearly invasive, does not implicate the type of criminal conduct covered by Penal Law 250.40 et seq., prohibiting unlawful surveillance.” Foster, 2015 N.Y.App. Div. LEXIS 3028*22. The court relied on Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993), in which the Court of Appeals held that a photographer who trespassed onto the grounds of a private psychiatric facility to take photographs of Hedda Nussbaum, did not engage in intentional infliction of emotional distress.

In Foster, the court looked to the Legislature to address emerging privacy issues, noting that “as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.” Id.

In 2015, a defendant was acquitted in Ulster County of attempted unlawful surveillance in connection with using a drone-mounted camera to shoot photos and videos of a medical office building.

6.  GPS Tracking

While hiring a private investigator to follow somebody around might be legal, you can't hide a GPS tracking device in someone's car to record their movements, unless you are a legal co-owner of the vehicle. Accordingly, in United States v. Jones, 132 S. Ct. 945, 181 L. Ed.2d 91 (2011), the Supreme Court of the United States held that the warrantless attachment of a GPS device to suspect’s car by law enforcement was an illegal trespass that violated the Fourth Amendment. see also People v.Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009) (New York State Constitution violated by law enforcement’s warrantless GPS tracking of defendant’s car for 65 days).

But in Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353, 21 A.3d 650, 2011 N.J. Super. LEXIS 125 (App. Div. 2011), the New Jersey Appellate Division held that a wife did not violate her husband’s right to privacy by secretly installing GPS device on their jointly-owned vehicle to track his movements.

Courts have also held that there is no prohibition of obtaining cellphone locator data maintained by a third party, such as the phone company. See People v. Moorer, 39 Misc.3d 603, 959 N.Y.S.2d 868 (County Ct. Monroe County 2013) (determining the location of a person’s cell phone through GPS “pinging” does not violate Fourth Amendment privacy rights); United States v. Davis, 2015 U.S. App. LEXIS 7385 (11th Cir. 2015) (en banc) (no Fourth Amendment violation where government warrantlessly obtained 2 months' worth of robbery suspect's historical cell tower location information).

Since 2007, all New York City Taxis are equipped with a Taxi Technology System, including GPS. This information is available via subpoena.

Assuming that a GPS tracking device is being used legally, following someone around can cross the line from legitimate investigation to harassment or stalking.

For example, under Penal Law § 240.26 (2), harassment in the second degree (violation), a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person he or she follows a person in or about a public place or places.

Under Penal Law § 240.25, harassment in the first degree (B misdemeanor), a person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places.

Under Penal Law § 120.45, stalking in the fourth degree (B misdemeanor), a person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct (1) is likely to cause reasonable fear of material harm to the physical health, safety or property of such person...; (2) causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person...and the actor was previously clearly informed to cease that conduct; or (3) is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.

There is also a federal stalking statute. 18 U.S.C. § 2261A prohibits travelling between states for the purpose of intimidating or harassing another person and places that person in fear of death or injury to themselves or their family members or causes substantial emotional distress.

There is no prohibition against tracking your Pizza Hut delivery driver.

7.  Gaining Entry To a Premises Through Deceit

Lying your way into a place that is not open to the public may be considered criminal trespass.

New York Penal Law § 140.10, criminal trespass in the third degree (B misdemeanor) makes it a crime to knowingly entering or remaining unlawfully in a building or upon real property. Under Penal Law § 140.00 (5), a person “enters or remains unlawfully” in a premises “when he is not licensed or privileged to do so.”

A person “who gains admittance to premises through intimidation or by deception, trick or artifice, does not enter with ‘license or privilege’.” Denzer and McQuillan, Practice Commentary to § 140.00, McKinney’s Penal Law (1967). People v. Graves, 76 N.Y.2d 16 (1990); People v. Mitchell, 231 A.D.2d 937, 647 N.Y.S.2d 637 (4th Dep't 1996).

Under New York Penal Law §145.15, Criminal Trespass in the Second Degree (A misdemeanor), “a person is guilty of criminal trespass in the second degree when he/she knowingly enters or remains unlawfully in a dwelling.”

8.  Obtaining Private Banking Information

It is illegal to trick a bank into providing someone's financial records.

Under federal law, 15 U.S.C. § 6821(a) prohibits making false, fictitious or fraudulent statements or representations, or using documents that are forged, counterfeit, lost or stolen or contain false or fraudulent statements, to obtain non-public financial information from financial institutions or their customers.

9.  Obtaining Someone's Phone Records (Thanks Hewlett-Packard)

In the 2006 Hewlett-Packard pretexting case, HP investigated leaks to the media from Board members by hiring private investigators to obtain the phone records of Board members and journalists to discover which Board members and journalists were speaking with each other. The private investigators did this by impersonating the Board members and journalists to the phone companies.

Under federal law, 18 USC § 1039 (a) prohibits using false and fraudulent statements or representations, or providing false or fraudulent documents, to obtain confidential telephone records from an employee or customer of a telecommunications carrier or IP-enabled voice service provider.

New York General Business Law § 399-dd prohibits the unauthorized acquisition of consumer telephone record information.

Penal Law § 250.30, unlawfully obtaining communications information (B misdemeanor), makes it a crime to use deception, stealth, or any other manner to obtain from a telephone company any information concerning a record of any telephone communication.

10.  Destroying Evidence and Witness Tampering

Taking steps to prevent evidence from being presented in court -- whether by destroying evidence or convincing a witness not to testify -- is illegal.

New York Penal Law § 215.40, tampering with physical evidence (E felony), makes it illegal to suppress physical evidence by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person. The statutory definition of "physical evidence" found in Penal Law § 215.35 includes any "article, object, document, record, or other thing of physical substance." At least one court has held that physical evidence may include computer data. see People v. Sandy, 236 A.D.2d 104 (1^st Dep’t 1997) (conviction for erasing computer data).

Similarly, New York Penal Law § 215.10, tampering with a witness in the fourth degree (A misdemeanor), prohibits inducing or attempting to induce a witness to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, or (b) knowingly making any false statement or practicing any fraud or deceit with intent to affect the testimony of a witness.

Some Emerging Issues:

1.  The Use of Drones To Conduct Surveillance

An emerging issue is the use of drones to conduct surveillance. There is currently no prohibition in New York against the use of drones to conduct surveillance, but several states have passed laws that regulate the use of drones.

Idaho: Private right of action against the use of drones to conduct surveillance on an individual or their dwelling. Idaho Code Ann. § 21-213 (2) (a)-(b).

North Carolina: Private right of action against the use of drones to conduct surveillance of a person or dwelling or real property. N.C. Gen. Stat. Ann § 15A-300.1 (b)(1)-(2).

Oregon: Private right of action against flying a drone at a height of less than 400 feet above another person’s property, if previously asked to stop. Oregon Revised Statutes, ORS 837.380.

Tennessee: Crime of trespass by drone for flying a drone above a private property at a height not regulated as navigable airspace by the FAA. Tenn. Code Ann. § 39-14-405.

Texas: Crime and private right of action to use a drone for surveillance of an individual or property, unless the images are immediately destroyed. Tex. Gov’t Code Ann. § 423.003, et seq.

Wisconsin: Crime to use a drone to photograph anyone in a place where the individual has a reasonable expectation of privacy. Wisconsin Statutes, Wis. Stat. § 942.10.

See also this article for a discussion of international rules regarding drones. Also, this whitepaper from Reed Smith regarding interesting legal issues regarding drones.

2.  Secretly Collecting DNA Evidence

Can you secretly collect someone's DNA for testing?

An ethics complaint was filed against a North Carolina attorney who secretly collected DNA from the water bottle of an individual she suspected of being the real murdered in an innocence project case. DNA testing helped exonerate her client. Additional coverage of that case can be found here.

In another case, Lowe v. Atlas Logistics Group Retail Services, LLC (N.D. GA 2015), the United States District Court for the Northern District of Georgia held that the Genetic Information Nondiscrimination Act (GINA) prohibited an employer from collecting DNA samples from employees for purposes of investigating misconduct (in that case, defecating on the floor of the workplace).

Admissibility of Illegally Obtained Evidence

The Fourth Amendment only applies to the government, not private individuals, so there is no exclusionary rule of a Constitutional nature that applies to evidence obtained illegally by a private individual. Courts have discretion, however, to preclude illegally obtained evidence.

Illegally or unethically obtained evidence is admissible in New York, absent a specific statutory exclusion. Sackler v. Sackler, 15 N.Y.2d 40, 255 N.Y.S.2d 83, 203 N.E.2d 481 (1964) (in a divorce action, evidence of wife’s adultery, obtained by means of illegal forcible entry into her home, admissible).

The one exception is that evidence obtained as the result of eavesdropping is not admissible in any proceeding, pursuant to CPLR § 4506.

Under New York CPLR § 3103 (c), courts have discretion to suppress improperly obtained evidence. CPLR § 3103 (c) provides: "Suppression of information improperly obtained. If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed."

Several cases have upheld the court's ability to impose suppression as a sanction. See In re Beiny, 129 A.D.2d 126, 517 N.Y.S.2d 474 (1st Dep’t), reh’g denied, 132 A.D.2d 190, 522 N.Y.S.2d 511 (1st Dep’t 1987) (improperly subpoenaed documents suppressed); Cippitelli v. Town of Niskayuna, 203 A.D.2d 632, 610 N.Y.S.2d 622 (3d Dep’t 1994) (soil testing results obtained by trespass suppressed); Wilk v. Muth, 136 Misc. 2d 476, 518 N.Y.S.2d 762 (S.Ct. Suffolk County 1987) (Physician was entitled to suppression of report obtained by plaintiff prior to her commencement of lawsuit against him where plaintiff had falsely stated that she wanted report because she was involved in personal injury action resulting from car accident; physician was clearly misled, and to permit plaintiff to use report prepared under false pretenses would result in substantial prejudice to him); Lipin v. Bender, 84 N.Y.2d 562, 620 N.Y.S.2d 744, 644 N.E.2d 1300 (1994) (sexual harassment case dismissed under CPLR 3103 (c) after plaintiff stole attorney-client privileged defense memos).

On the other hand, if the evidence would have been disclosed anyway during the normal course of litigation (sort of like the inevitable discovery rule, but in the civil context), courts are less likely to order suppression. See, DiMarco v. Sparks, 212 A.D.2d 965, 624 N.Y.S.2d 692 (4th Dep’t 1995) (CPLR § 3103(c) did not require suppression of documents obtained by defendants from non-party regarding application by plaintiffs to refinance their mortgage, even though documents were improperly obtained without notice to plaintiffs, where no documents were privileged, and there was no showing that defendants would not have been entitled to them in normal course of discovery); Gutierrez v. Dudock, 276 A.D.2d 746, 715 N.Y.S.2d 333 (2d Dep’t 2000) (In personal injury action wherein defendants obtained documents from nonparty insurance company concerning injuries plaintiff sustained in prior accident, without giving notice to plaintiff pursuant to CPLR § 3120 (b), plaintiff was not entitled to suppression of documents or imposition of sanctions, costs and counsel fees, as he was not prejudiced by lack of notice, documents in question were not privileged, and defendants would have been entitled to their production in normal course of business).