Note on Stalking First Degree and Lesser Included Offenses
Chapter 635 of Laws of 1999 enacted the Clinic Access and Anti-Stalking Act of 1999.
Chapter 434 of Laws of 2000, effective 10/20/00, amended that legislation to make technical corrections.
The purpose and justification for the technical bill was to correct certain spelling errors and incorrect references to terms used in the penal law.
The bill also amended the definition of stalking first degree to provide that a person shall be guilty of the first degree offense if he or she commits stalking second degree and in the course thereof he or she intentionally causes physical injury or commits certain sex offenses.
(As originally enacted a person would be guilty of the first degree offense only if he or she had committed stalking in the third degree and had in the course thereof caused physical injury or committed certain sex offenses.)
The core conduct defining stalking first degree is now commission of either PL 120.50(3) or PL 120.55, plus one of two sets of additional elements.
Now, it has since the original enactment been possible to commit PL 120.55 without by the same conduct committing PL 120.50(3) (see PL 120.55(3) and (4)).
Consequently, PL 120.60 contains, as its first "element", a disjunctive combination of two other crimes.
Following the amendment, it is now theoretically possible to commit PL 120.60 (either (1) or (2)) without committing PL 120.50(3),
and it is also possible to commit PL 120.60 without committing PL 120.55.
Therefore, neither PL 120.55 nor PL 120.50(3) meets the "impossibility test" of CPL 1.20(37) and People v Glover,
and GungaWeb considers neither to be a lesser included offense of stalking in the first degree.
Since there is not yet any affirmative case law confirming this analysis, these offenses are not yet listed as "non-lesser-included offense", either.