        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

707
KA 11-02547
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID W. SCHREIER, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered February 16, 2011. The judgment convicted
defendant, upon a nonjury verdict, of unlawful surveillance 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 of unlawful surveillance in the second degree (Penal
Law § 250.45 [1]), defendant contends that the conviction is not
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495). We reject that contention. The evidence
established that 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, he contends
that the People failed to establish the remaining three elements of
unlawful surveillance in the second degree (see § 250.45 [1]). We
disagree. County Court was entitled to infer from the evidence the
first two remaining elements, i.e., that defendant made the recording
for his own amusement or entertainment, and that he “intentionally
use[d] . . . an imaging device to surreptitiously . . . record” the
victim (id.). With respect to the surreptitious nature of the
recording, we note that defendant videotaped the victim in the early
morning hours, around dawn, obscured himself and his compact camera
from the victim’s view 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 third remaining element of the crime, i.e., that the
recording was made at “a place and time when a reasonable person would
believe that he or she could fully disrobe in privacy” (§ 250.40 [1];
                                 -2-                           707
                                                         KA 11-02547

see § 250.45 [1]). The victim was recorded at 7:30 A.M. in the
second-floor bathroom of her home as she was preparing for work. Her
location was largely obscured from outside view, except from a
particular vantage point through a certain window that could be
obtained only by a person of above-average height, standing
immediately outside her door. Even from that vantage point, the
victim was only partially visible. The victim testified that she did
not believe that an individual standing outside her home could see her
bathroom through the window because she was unable to see through the
window while standing at the front door, and “[she] didn’t realize
anyone [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 NY3d 342, 349),
we conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495).




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
