Appendix — Foley v. New York
Supreme Court brief2000
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90 88 sue too
i QFFICE OF THE CLERK
In The
Supreme Court of the Anited States
THOMAS R. FOLEY, SR..,
Petitioner,
v.
PEOPLE OF THE STATE OF NEW YORK,
Respondent.
On Petition For Writ Of Certiorari To The
New York State Court Of Appeals
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
Paul John Cambria, Jr., Esq.
Counsel of Record
LIPSITZ, GREEN, FAHRINGER,
ROLL, SALISBURY & CAMBRIA LLP
42 Delaware Avenue, Suite 300
Buffalo, New York 14202-3901
(716) 849-1333
Counsel for Petitioner
11 Centre Park (B-3788) 107 Delaware Avenue — Suite 81
Rochester, New York 14614 Buffalo, New York 14202
- (716) 232-6920 THE DAILY RECORD (716) 847-2984
TABLE OF CONTENTS
Page
Decision and Opinion of New York State Court
of Appeals Affirming Appellant’s Conviction .................. A-l
Order of New York State Court of
Appeals Granting Leave to Appeal ...................cceceeceee A-21
Order and Decision of Appellate Division,
Fourth Judicial Department Affirming
SPE BIO ovis cncessdsssccarccccsvencecsavcanscancs A-22
CREEETICIND OE COOMVIIEIOR. 0 oo. onc ks ccccsccescsccccnccasccsccesce A-35
New York State Penal Law §235.23 ...........ccccccceccceeeee A-36
New York State Penal Law §235.24 o.......ccccccccsceeseeee. A-38
Appellant’s Brief on Appeal...................c.cececcececeseuces A-39
WIE I scr idds ci hota. ck gucendasacavacecs A-121
PP I MII sis bi ckeics a ccanccackedcedscassdskdeacacsas A-183
Brief of the State of New York as Intervenor................ A-215
Appellant’s Brief in Reply to the Brief
of the State of New York as Intervenor................0.00... A-297
A-]
STATE OF NEW YORK
COURT OF APPEALS
Stuart M. Cohen Clerk’s Office
Clerk of the Court Albany, New York 12207-1095
DECISION April 11, 2000
+ No. 17
The People &c., Order affirmed.
Respondent, Opinion by Judge Wesley.
Vv. Chief Judge Kay and Judges
Thomas R. Foley, Sr., Bellacosa, Smith, Levine,
Appellant. Ciparick and Rosenblatt concur.
STATE OF NEW YORK
COURT OF APPEALS
+ No. 17
The People & c., OPINION
Respondent,
Vv. This opinion is uncorrected
Thomas R. Foley, Sr., and subject to revision
Appellant. before publication in the
New York Reports.
Roger W. Wilcox, for appellant.
Michael A. Arcuri, for respondent.
Submitted by Robin A. Forshaw on behalf of Eliot
Spitzer, Attorney General.
Wont, 4:
The main issue in this appeal focuses on the constitutionality of
Penal Law § 235.22, enacted to address the convergence of
predatory pedophile activity with Internet technology. Defendant
contends that Penal Law § 235.22 is that it is a content-based
restriction that scrutiny under the First Amendment, and that it
violates the Commerce Clause. We disagree. The statute has a
significant and distinct feature: it criminalizes the use of sexually
explicit communications designed to lure children into harmful
conduct. We thus hold that the statute withstands defendant's
challenges.
In October 1996, a State Trooper assigned to the
Computer Crime Unit logged onto the Internet and entered a chat
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room entitled "KidsofFamilySex." The Trooper used the screen
name "Aimee_" and began a discussion with defendant, Thomas
R. Foley, Sr., who was using the screen name "JustMee." JustMee
inquired whether Aimee_ wanted to "chat sex?" Aimee_ answered
"OK," identifying herself as a 15-year-old girl who had sex with
her father. JustMee identified himself as a 51-year-old male. The
conversation lasted approxintately two hours and was almost
exclusively about sex. JustMee asked Aimee_ how she enjoyed
having sex with her father, described how he would have sex with
her and encouraged her to masturbate during their conversation.
Aimee_ mentioned that she lived in Utica and JustMee informed
her that he lived near Buffalo. During the conversation, JustMee
sent several pictures to Aimee_ of "preteen girls and men"
engaging in sexual acts.
During November 1996, JustMee had three other private
on-line chats with Aimee_. In each conversation Aimee indicated
that she was 15 years old. The conversations centered around sex;
JustMee would encourage Aimee_ to masturbate and to describe
having sex with her father. He said that he wanted to have sex
with her, described how he would do so, and sent her pictures of
minors engaging in sexual acts with other minors and with adults.
In their third conversation, JustMee expressed his interest in
meeting Aimee_ but cautioned that they would have to be careful.
Aimee_ answered that she had cousins in Buffalo and that she
could possibly arrange a visit. During their fourth conversation,
JustMee again discussed their meeting, stating that they would
have to be discreet and make the arrangements ahead of time. The
discussion turned to the possibility of meeting, over Thanksgiving
weekend.
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The police obtained the identity of JustMee when they
served a subpoena on the Internet service provider. As JustMee
and Aimee_, in their fifth on-line conversation, discussed where
they could meet in Buffalo, the police executed a no-knock search,
warrant at defendant's residence and found him typing at his
computer. Defendant admitted that he had used the screen name
JustMee and had several chats with Aimee_, whom he believed to
be 15 years old.
Defendant was indicted on three counts of promoting an
obscene sexual performance by a child (Penal Law § 263.10),
three counts of promoting a sexual performance by a child (Penal
Law § 263.15), three counts of obscenity in the third degree
(Penal Law § 235.05[{1]) and two counts of attempted disseminating
indecent material to minors in the first degree (Penal Law 110.00,
2-35.22[l] & [21). Prior to trial, defendant moved to dismiss the
indictment on several grounds, among them that. the statute
defining each count of the indictment was unconstitutional. County
Court denied the motion.
During trial, defendant introduced the testimony of a
computer expert who explained that with current technology,
computer images could be easily manipulated. Of the many
graphics sent by defendant to Aimee_, however, the expert could
only point to one that appeared as if it had been altered. The jury
was permitted to examine the pictures and was instructed as
follows:
"Section 263.25 of the Penal Law of the State of
New York reads: Whenever it becomes necessary,
for the purposes of the article, to determine
whether a child who participated in a sexual
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performance was under the age of 16 years, the
Court or Jury may make such determination by
any of the following: Personal inspection of the
child, inspection of a photograph or motion
picture which constituted the sexual performance,
Oral testimony by a witness to the sexual
performance as to the age of the child based upon
the child's appearance, expert medical testimony
based upon the appearance of the child in the
sexual performance, and any other method
authorized by any applicable provision of law or
by the rules of evidence at common law.”
The jury found defendant guilty of two counts of
promoting a sexual performance by a child and two counts of
attempted disseminating indecent material to minors in the first
degree. The Appellate Division unanimously affirmed the
conviction, holding that Penal Law § 235.22 is constitutional. The
court noted that Penal Law § 235.22 is a precise means of
accomplishing the Legislature's objective to protect children from
sexual abuse by prohibiting the dissemination of graphic images to
a minor depicting nudity, sexual conduct or sadomasochistic abuse
that is "harmful to minors," and the use of that material to lure the
minor to engage in sexual activity. The court determined that
Penal Law § 235.22 is neither impermissibly vague nor overbroad.
The court further determined that the statute met First Amendment
standards as a carefully drawn means of serving a compelling state
interest. Finally, the court concluded that the statute did not violate
the Commerce Clause and rejected defendant's contention that
Penal Law § 263.15 is unconstitutionally overbroad. We affirm.
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Penal Law § 235.22 provides:
"A person is guilty of disseminating indecent
material to minors in the first degree when:
“1. knowing the character and content of the
communication which, in whole or in part, depicts
actual or simulated nudity, sexual conduct or
sado-masochistic abuse, and which is harmful to
minors, he intentionally uses any computer
communication system allowing the input, output,
examination or transfer, of computer data or
computer programs from one computer to another,
to initiate or engage in such communication with a
person who is a minor; and
"2. by means of such communication he
importunes, invites or induces a minor to engage
in sexual intercourse, deviate sexual intercourse,
or sexual contact with him, or to engage in a
sexual performance, obscene sexual performance,
or sexual conduct for his benefit (emphasis
added)."
Our analysis in this appeal focuses on two requirements
that must be established before an individual can be subjected to
criminal liability under the statute.-First, an individual must
intentionally use a computer system to initiate or engage in the
transmission of actual or simulated depictions of sexual activity for
the purpose of communicating with a minor, knowing the
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character and content of such communication (Penal Law
§ 235.22[l]). The communication must be "harmful to minors" as
defined by Penal Law § 235.20 (6).' Second, the statute requires
that an individual must "by means of such communication"
importune, invite or induce the minor to engage in sexual activity
for his or her benefit (Penal Law § 235.22[2]). The statute was
enacted to address the growing concern that pedophiles are using
the Internet as a forum to lure children (see, Governor's Mem
approving L 1996, ch 600, 1996 McKinney's Session Laws of
NY, at 1900-1901).
As a preamble to our analysis, we note that an enactment
of the Legislature, a co-equal branch of government, is presumed
to be valid, and that one seeking to invalidate a statute bears the
heavy burden of showing that it is unconstitutional (People v
Bright, 71 NY2d 376, 382; People v Davis, 43 NY2d 17, 30).
' Under Penal Law § 235.20(6), "harmful to minors" is described as
"that quality of any description or representation, in whatever form, of
nudity, sexual conduct, sexual excitement, or sado-masochistic abuse"
when it "[clonsidered as a whole, appeals to the prurient interest in sex of
minors," is "patently offensive" to the "prevailing standards in the adult
community" as to what is suitable material for minors and "[c]onsidered
as a whole, lacks serious literary, artistic, political and scientific value
for minors" (Penal Law § 235.20[6]).
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II.
The Overbreadth Doctrine
Defendant contends that, on its face, Penal Law § 235.22,
is overbroad because it exposes individuals to criminal liability
who unintentionally address a minor through sexually-oriented
communication. We reject defendant's challenge.
As a general rule, a court will not hear a challenge to a
Statute from a person to whom the statute may be constitutionally
appliec.on the ground that its application to others, not before the
court, may possibly impair their constitutional rights (New_York v
Ferber, 458 US 747, 767; Broadrick v Oklahoma, 413 US 601,
610; see also, People v_ Hollman, 68 NY2d 202, 208). An
exception has been carved out in the area of the First Amendment.
It has been recognized that "statutes attempting to restrict
or burden the exercise of First Amendment rights must be
narrowly drawn and represent a considered legislative judgment
that a particular mode of expression has to give way to other
compelling needs of society" (Broadrick v Oklahoma, supra, 413
US 601, 611). Thus, a statute that attempts to proscribe
constitutionally protected speech will not be enforced unless a
limiting construction effectively removes the apparent threat to
constitutionally protected expression (id., at 613).
A statute is subjected to less scrutiny where the behavior
sought to be prohibited by the State moves from "pure speech"
toward conduct "and that conduct -- even if expressive -- falls
within the scope of otherwise valid criminal laws that reflect
legitimate state interests" (id., at 615). Even though the statute, "if
US Pa CAH eae CS Os KAS ORS te ib Si Chae eS 1S CEN Ar OR OT! OF es
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too broadly worded, may deter protected speech to some unknown
extent, there comes a point where that effect -- at best a prediction
-- cannot, with confidence, justify invalidating a statute on its face
and so prohibiting a State from enforcing the statute against
conduct that is admittedly within its power to proscribe” (id.; see
also, People v Hollman, 68 NY2d 202, 209). Thus, where
conduct and not merely speech is involved, the overbreadth
doctrine can be invoked only where the overbreadth is
"substantial". (New_York v Ferber, supra, 458 US 747, 769;
Broadrick v Oklahoma, supra, 413 US 601, 615). The First
Amendment overbreadth doctrine is "strong medicine," it has been
invoked by the courts with hesitation and "only as a last resort”
(New York v Ferber, supra, at 769 [quoting Broadrick _v
Oklahoma, 413 US 601, 613]; see also, People v Hollman, supra,
68 NY2d 202, 208).
In Reno v American Civ. Liberties Union (521 US 844),
the Supreme Court of the United States struck down the
Communications Decency Act (47 USC § 223) as
unconstitutionally overbroad. The Act prohibited the knowing
transmission of “obscene or indecent" comments to any person
under the age of 18 (47 USC § 223{a][1][B]) and using the Internet
to send or display any comment or image that "in context, depicts
or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities
or organs" to any person under the age of 18 (47 USC
§ 223{d][1][B])). The Court noted that the breadth of the Act was
unprecedented in that its scope was not limited to commercial
speech or commercial entities; the statute's prohibitions embraced
all entities and individuals posting indecent messages or displaying
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them on their own computers in the presence of minors (Reno,
supra, 521 US, at 877).°
Penal Law § 235.22 is readily distinguishable from the
Communications Decency Act addressed in Reno. Unlike the
Federal statute, Penal Law § 235.22 is not directed at the mere
transmission of certain types of communication over the Internet.
The second part of the statute -- the “luring prong” -- is
significant. An invitation or enticement is distinguishable from
pure speech. The terms “importune,” "invite" or “induce” can. be
likened to terms such as “procure” or “solicit” used to define the
advancement of prostitution (Penal Law § 230.15) or the terms
“request” or “command” used to describe criminal liability for the
conduct of another (Penal Law § 20.00). They describe acts of
communication; they do not describe the content of one's views.
The terms identify forms of conduct which may provide a
predicate for criminal liability. Penal Law § 235.22 is a
preemptive strike against sexual abuse of children by creating
criminal liability for conduct directed toward the ultimate acts of
abuse.
* One New York court has held that Penal Law § 235.22 similarly
implicates the First Amendment. In People v Barrows (177 Misc 2d 712),
the court turned to the second section of Penal Law § 235.22 pertaining
to the violator's conduct in “importun[ing], invit{ing] or inducling] a
minor to engage” in sexual activity for his or her benefit and determined
that this devolved to nothing more than “speech in its purest form” (id.,
at 732). Then, analogizing Penal Law 235.22 to the Communications
Decency Act, the court that Penal Law§ 235.22 was unconstitutionally
overbroad and vague (id., at 733-734). We disagree with that analysis
(see, People v Barrows, 174 Misc 2d 367).
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Defendant contends that constitutionally protected speech
. among adults on the Internet may be affected by the statute
because the statute does not require an individual "know" that he
or she is communicating with a minor. For example, a “chat
room" participant who sends a sexually explicit graphic image file
with an accompanying message inviting other “chat room"
participants to get together for lawful sexual activities runs the risk
that a minor may have access to the "chat room" and receive the
transmission. Such a participant, according to defendant, could
thus be exposed to criminal liability.
Penal Law § 235.22(1) provides that a person is guilty of
disseminating indecent material to a minor if, knowing the content
of the communication, he "intentionally" uses any communication
system to initiate or engage in such communication with a person
who is a minor. The placement of the word "intentionally" in
. Penal Law § 235.22(1) should be read to modify everything that
follows. Where a statute contains only one , reference to a
particular mental state (such as "intentionally"), there is a
presumption that the mental state applies to "every element of the
offense unless an intent to limit its application clearly appears"
(Penal Law § 15.15). Thus, contrary to defendant's assertion, the
statute should be read as requiring that an individual intend to
initiate this kind of communication with a minor and thereby
further intend to “importune, invite or induce" the minor to engage
| in sexual conduct for the sender's benefit.
Defendant suggests that the legislative history of Penal
Law §235.22 indicates that the statute was not to be so
circumscribed. We conclude that the statute provides for the
mental state of “intent” to limit the proscribed conduct. As one of
the sponsors of the legislation stated, "[t}he purpose of this bill is
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[to] deter individuals who would use computer networks to lure
children into sexual relations by intentionally transmitting indecent
materials to children through the computer networks. The bill
would not hold liable a computer network or other individual who
did not intentionally transmit the materials to minors" (Letter from
Senator Sears to the Governor dated July 11, 1996, Bill Jacket,
L 1996, ch 600).
Finally, we reject defendant's assertion that the term
"harmful to minors" found in Penal Law § 235.22(1) is overbroad
because it allows New York to impose its community standards
nationwide. The term "harmful to minors" is specifically defined
according to the guidelines enunciated by the Supreme Court in
Miller v California (413 US 15, 24) and is further limited to actual
Or simulated “nudity,” "sexual conduct" or "“sado-masochistic
abuse” (see, Penal Law § 235.22[l]; Penal Law § 235.20 [2], [3]
& [5]). It is difficult to envision a situation where this conduct
would not be considered harmful to minors outside New York
when the statute seeks specifically to prohibit the intentional
with the-sender's enticement or invitation to the child to engage in
sexual activity.
In short, the legitimate reach of Penal Law § 235.22
outweighs its "arguably impermissible applications" (New_York v
Ferber, supra, 458 US 747, 773). Thus, we conclude that the
Statute 1s not substantially overbroad. é .
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Vagueness
Defendant also challenges Penal Law § 235.22 as
unconstitutionally vague, arguing that the luring prong of Penal
Law § 235.22(2) defines the prohibited conduct in unacceptably
ambiguous terms. According to defendant, the phrase
"importunes, invites or induces" and the phrase "sexual conduct
for his benefit" not only fail to provide adequate notice of what is
prohibited but also permit the arbitrary and discriminatory
application of the law by both law enforcement authorities and
fact-finders called upon to interpret the speech at issue. We
disagree.
A statute is unconstitutionally vague if it fails to provide a
person of ordinary intelligence with a reasonable opportunity to
know what is prohibited, and it is written in a manner that permits
or encourages arbitrary or discriminatory enforcement (Grayned v
City of Rockford, 408 US 104, 108; see also, People v Shack, 86
NY2d 529, 538-539; People v Bright, supra, 71 NY2d, at 382). A
vague law impermissibly delegates basic policy matters to law
enforcement officials, judges and juries for resolution on an
ad hoe. subjective basis "with the attendant dangers of arbitrary
and discriminatory application" (Grayned, supra, 408 US, at
108-109). However, imprecise language does not render a statute
fatally vague so long as that language “conveys sufficiently
definite warning as to the proscribed conduct when measured by
common understanding and practices"' (People v Shack, supra, 86
NY2d 529, 538 [citing United States v Petrillo, 332 US 1, 8}).
In Reno, the major defect of the Communications Decency
Act was its vagueness. Absent any definitions for the terms
"indecent" and "patently offensive," the Act lacked the precision
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that the First Amendment requires when a statute regulates the
content of speech (521 US, at 874). The Supreme Court noted that
the open-ended nature of the proscribed material added to the
threat that the statute would censor speech that, in fact, would fall
outside its scope (id.).
Unlike the terms “indecent” or "patently offensive” held to
be vague in the Communications Decency Act, each and every
term of Penal Law § 235.22 is either defined in the Penal Law or
has a plain and ordinary meaning (see, Penal Law § 235.20). The
term “benefit” as used in "for his benefit" is defined as "any gain
_or advantage to the beneficiary and includes any gain or advantage
to a third person pursuant to the desire or consent of the
beneficiary” (Penal Law § 10.00[17]). While "importune,"
"invite" and “induce” are not defined terms, a person of ordinary
intelligence would reasonably know that the statute is meant to
prevent the intentional luring of minors to engage in sexual
conduct through the dissemination of harmful, sexual irnages.
Moreover, we find no possibility of arbitrary or
discriminatory enforcement of the statute. The combination of the
precise terms described in the statute and the-clearly pronounced
elements “adequately defines the criminal conduct for the police
officers, Judges and juries who will enforce the statute" (People v
Shack, supra, 86 NY2d, at 539). Unlike the subjective terms used
in the Federal Act, Penal Law § 235.22 employs objective,
ascertainable standards which do not provide room for law
enforcement officials to apply the statute based upon their own
personal ideas of” right and wrong (People v Bright, supra, 71
NY2d, at 383). We therefore conclude that Penal Law § 235.22 is
not unconstitutionally vague.
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Content-Based Restriction
In addition to contesting the validity of Penal Law
§ 235.22 on First Amendment overbreadth and vaguemess
grounds, defendant asserts that the statute is an unconstitutional
content-based restriction. Because Penal Law § 235.22 proscrabes
"sexually-oriented" communications, defendant maintains that it is
an impermissible regulation on speech.
Content-based speech restrictions are presumptively
invalid and will not survive strict scrutiny unless the government
can show that the regulation promotes a compelling State interest
and that it chose the least restrictive means to further the
articulated interest (see, Sable Communications Vv FCC, 492 US
115, 126; Boos v Berry, 485 US 312, "321; see also, People ex
rel. Arcara v Cloud Books, 68 NY2d 553, 559).
Sexually explicit communication is affected by the statute
and thus the statute is content-based (see, Reno, supra, 521 US,
844, at 868); Penal Law § 235.22 prohibits the dissemination of a
certain category of images to minors (Penal Law § 235.22[I]).
The justification for the statute is related to the impact on the
minor listener and cannot be _ properly analyzed aS a
content-neutral, time, place and manner restriction (Reno, supra,
at 868: compare City of Erie v_ Pap’s A.M. TDBA
"Kandyland", _ U.S. __, 2000 US Lexis 2347, *25). We
nevertheless hold that Penal Law § 235.22 survives First
Amendment strict scrutiny, because as noted earlier, it curtails the
use of speech in a way which does not merit First Amendment
protection and is a carefully tailored means of serving a
compelling State interest (see, New York v Ferber, supra, 458 US
747; 773).
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The primary legislative purpose behind the statute is "to
protect the children of this State from high tech cybersex abuse
and actual sexual abuse" (Governor's Mem approving Bill Jacket,
L 1996, ch 600, 1996 McKinney's Session Laws of NY, at 1901).
The State plainly has a "compelling" interest in protecting children
from sexual exploitation in order to safeguard their "physical and
psychological well-being" (New_York v Ferber, supra, 458 US
747, 756 [quoting Globe Newspaper Co. v Superior Court, 457
US 596, 607]). "'It rarely has been suggested that the
constitutional freedom for speech and press extends its immunity
to speech or writing used as an integral part of conduct in violation
of a valid criminal statute"’ (New York v Ferber, supra, 458 US
747, 761-762 [quoting Giboney v Empire Storage & Ice Co., 336
US 490, 498]; see also, Osborne v Ohio, 495 US 103, 110). Asa
result, courts have recognized that speech used to further the
sexual-exploitation of children does not enjoy constitutional
protection (see, New York v Ferber, supra, 458 US 747 on
remand to People v Ferber, 57 NY2d 256, 259; United States v
Kufrovich, 997 F Supp 246, 254 [D. Conn]; United States v
Powell, 1 F Supp 2d 1419, 1422 [N.D. Ala.]).
The speech-conduct sought to be prohibited by Penal Law
§ 235.2-12 -- the endangerment of children through the
dissemination of sexually graphic material over the Internet -- does
not merit First Amendment protection. In any event, the statute
does not effectuate a total ban on the dissemination of sexual
content communication, but merely limits its use (compare, City of
Ere, sipta,, _—*'U.S. , 2000 Lexis 2347, *30-31; Sable
Communications v FCC, supra, 492 US 115, 129). Although the
statute may incidentally burdensome protected expression in
Carrying out its objective, Penal Law § 235.22 serves the
compelling interest of preventing the sexual abuse of children and
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is no broader than necessary to achieve that purpose (see, People
ex rel. Arcara v Cloud Books, supra, 68 NY2d 553, 558).
The Commerce Clause
Defendant's final assault on Penal Law § 235.22 is
premised on the Commerce Clause. Relying on a recent Federal
court decision -- American Libs. Assn. v Pataki (969 F Supp 160
[SDNY]) -- defendant contends that Penal Law § 235.22 unduly
burdens interstate trade.
In American Libraries, the court struck down Penal Law
§ 235.21(3) as a violation of the Commerce Clause. Penal Law
§ 235.21(3) prohibits sending a sexually explicit depiction to a
minor over the Internet. Because the Internet represents an
instrument of interstate commerce, the court deemed Penal Law
235.21(3) to be "closely concerned with interstate commerce, and
scrutiny of the [statute] under the Commerce Clause" was
therefore "entirely appropriate"' (id., at 173). The court expressly
distinguished Penal Law § 235.21(3) from Penal Law 235.22,
recognizing that "plaintiffs do not challenge the sections of the
statute that criminalize the sale of obscene materials to children,
over the Internet or otherwise, and prohibit adults from luring
children into sexual contact by communicating with them via the
Internet" (id., at 179).
Penal Law § 235.22 does not discriminate against or
burden interstate trade; it regulates the conduct of individuals who
intend-to use the Internet to endanger the welfare of children.
Although Penal Law § 235.22 contains some of the same language
as the provision in Penal Law § 235.21(3) struck down in
American Libraries, the statute challenged here contains the
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additional "luring" prong. We are hard pressed to ascertain any
legitimate commerce that is derived from the _ intentional
transmission of sexually graphic images to minors for the purpose
of luring them into sexual activity. Indeed, the conduct sought to
be sanctioned by Penal Law § 235.22 is of the sort that deserves
no “economic” protection (see, New_York v Ferber, supra, 458
US 747, 761-762). Thus, we conclude that Penal Law § 235.22 is
a valid exercise of the State's general police powers (see, Lewis v
BT Investment Mgrs., Inc., 447 US 27, 36).
Ii.
ae
Finally, we address defendant's constitutional challenge to
Penal Law § 263.15, which prohibits promoting a_ sexual
performance by a child. Although the Supreme Court in New
York v_ Ferber (supra, 458 US 747) has held that Penal Law
§ 263.15 is not unconstitutionally overbroad, defendant attempts to
revisit the matter. Defendant notes that today's computer
technology permits the manipulation of images such that the
concerns addressed in Ferber regarding the harm caused to
children as a result of the production of sexual performances are
not presented here. Defendant argues that in the absence of an
express instruction from the trial court that the People must prove
the actual use of children in the prohibited performances, the
Statute is fatally overbroad.
Penal Law § 263.15 prohibits the promotion of any
performance which includes sexual conduct by a child younger
than 16 years of age. In Ferber, the Supreme Court held that the
value of permitting live performances and photographic
reproductions of children engaged in lewd sexual conduct was
de minimis (458 US, at 762). Since this class of material bears
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PHC ith aR
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- 18- No. 17
heavily on the welfare of children, in the balance of competing
interests, "it is permissible to consider these materials as without
the protection of the First Amendment" (id., at 763). The Court
then rejected the overbreadth challenge to Penal Law 263.15,
holding that the statute's legitimate reach in addressing the harm of
child pornography outweighs any arguably impermissible
application (id. at 773). The Court concluded that any overbreadth
which may exist should be cured on a ‘case by-case analysis” at
774).
We are unpersuaded by defendant's speculative and broad
reading of Penal Law § 263.15. Defendant fails to demonstrate
any real or substantial overbreadth to invalidate the statute.
The statutory scheme allows the fact-finder to make a
determination on the evidence submitted whether the performance
involves an individual under the age of 16 (Penal Law § 263.25).
In this case, defendant was permitted to introduce expert testimony
challenging whether the images transmitted by defendant to
Aimee_ actually depicted children or had been digitally spliced to
"manufacture" the picture of a child performing a sexual act. Of
the many images transmitted by defendant to Aimee_, defendant's
expert could point to only one that may have been digitally altered.
Defendant did not object to the Trial Court's charge on Penal Law
§ 263.25. The jury was thus instructed to consider, from the
evidence before it, whether or not a child who participated in the
performance was under the age of 16. Under these circumstances,
we cannot conclude that, as applied to defendant, overbroad. We
reject defendant’s remaining contentions.
A-20
<a No. 17
Accordingly, the order of the Appellate Division should
be affirmed.
XK * * * * * * * *
Opinion by Judge Wesley. Chief Judge Kaye and Judges
Bellacosa, Smith, Levine, Ciparick and Rosenblatt concur.
Decided April 11, 2000
a rad Say ER 2
STATE OF NEW YORK
COURT OF APPEALS
BEFORE: HON. GEORGE BUNDY SMITH, Associate Judge
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent, ORDER
against GRANTING
LEAVE
THOMAS R. FOLEY, SR..,
Appellant.
I, GEORGE BUNDY SMITH, Associate Judge of the
Court of Appeals of the State of New York, do hereby certify that
in the record and proceedings herein* questions of law are
involved which ought to be reviewed by the Court of Appeals and
pursuant to §460.20 of the Criminal Procedure Law, it is therefore
ORDERED that permission be and it is hereby granted to
the above-named appellant to appeal to the Court of Appeals.
Dated at New York, New York
August 30, 1999
/s/
Associate Judge
* Order of the Appellate Division, Fourth Department,
entered June 18, 1999, affirming a judgment of the
County Court, Oneida County, entered January 20,
1998.
* Description of Order:
A-22
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
674
PRESENT: PINE, J.P., HAYES, PIGOTT, JR., SCUDDER
AND BALIO, JJ.
KA 98-2083
PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF-RESPONDENT,
V
THOMAS R. FOLEY, SR., DEFENDANT-APPELLANT
Thomas R. Foley, Sr., having appealed to this Court from
the judgment of the Oneida County Court, entered in the Oneida
County Clerk’s Office on January 20, 1998, and said appeal
having been argued by Herbert Greenman of counsel for
defendant-appellant, William Weber of counsel for
plaintiff-respondent, and due deliberation having been had thereon,
It is hereby ORDERED that the judgment so appealed
from be and the same hereby is unanimously affirmed, and the
matter is remitted to Oneida County Court for proceedings
pursuant to CPL 460.50(5).
Opinion by Hayes, J., that is hereby made a part hereof.
Entered: June 18, 1999 CARL M. DARNALL, Clerk
A-23
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
(674) KA 98-2083. (Oneida Co.) - PEOPLE OF THE STATE
OF NEW YORK, PLAINTIFF-RESPONDENT, V THOMAS
R. FOLEY, SR., DEFENDANT-APPELLANT. -- Judgment
unanimously affirmed. Opinion by Hayes, J: Defendant appeals
from a judgment convicting him following a jury trial of two
counts each of promoting a sexual performance by a child (Penal
Law §263.15) and attempted disseminating indecent material to
minors in the first degree (Penal Law §§110.00, 235.22).
Defendant challenges the constitutionality of Penal Law §235.22
and contends that alleged errors that occurred during trial require
reversal. The judgment should be affirmed.
I
Defendant had a computer equipped with a modem and
software to enable him to gain access to the Internet. The Internet
links computer users from across the world via an international
network (see, Reno v American Civ. Liberties Union, 521 US 844,
849), Individuals gain access to the Internet through various
avenues, including Internet service providers such as America
Online, CompuServe, the Microsoft Network and Prodigy (see,
Reno v American Civ. Liberties Union, supra, at 850). An
individual may obtain and transmit text, sound, pictures, and
moving video images using various methods. One of those
methods is the use of a “chat room". In a chat room, individuals
engage in real-time dialogue, i.¢., when a message is typed, it
appears almost immediately on the computer screen of other
individuals in the chat room. In addition, an individual can send
pictures to another individual in the chat room. The chat rooms
foster an exchange of information or ideas on a particular topic.
Two individuals may break away from the main chat room to have
a private chat. Individuals in the chat room use "screen names" of
their choosing.
The Internet allows millions of individuals to gain access to
a wide variety of educational and entertainment material. While the
A-24
Internet has innumerable benefits, it also has some negative
aspects. Pedophiles have used the Internet to engage in sexually
explicit communications with minors and then have attempted to
arrange sexual encounters with those minors (see, Governor's
Mem approving L 1996, ch 600). Penal Law 235.22 awas enacted
to prevent the abuse of children over the Internet and provides as
follows:
“A person is guilty of disseminating indecent
material to minors in the first degree when:
l. knowing the character and content
of the communication which, in whole or in part,
depicts actual or simulated nudity, sexual conduct
or sado-masochistic abuse, and which is harmful
to minors, he intentionally uses any computer
communication system allowing the input, output,
examination or transfer, of computer data or
computer programs from one computer to another,
to initiate or engage in such communication with a
person who is a minor; and
2. by means of such communication
he importunes, invites or induces a minor to
engage in sexual intercourse, deviate sexual
intercourse, or sexual contact with him, or to
engage in a sexual performance, obscene sexual
performance, or sexual conduct for his benefit.”
There are four affirmative defenses to a prosecution under Penal
Law §235.22:
a In any prosecution for * * *
disseminating indecent material to minors in the
first degree pursuant to section 235.22 of this
article, it shall be a defense that:
(a) The defendant made a reasonable
effort to ascertain the true age of the minor and
A-25
was unable to do so as a result of actions taken by
the minor; or
(b) The defendant has taken, in good
faith, reasonable, effective and appropriate actions
under the circumstances to restrict or prevent
access by minors to materials specified in such
subdivision, which may involve any appropriate
measures to restrict minors from access to such
communications, including any method which is
feasible under available technology; or
: (c) The defendant has __ restricted
access to such materials by requiring use of a
verified credit card, debit account, adult access
code or adult personal identification number; or
(d) The defendant has in good faith
established a mechanism such that the labelling,
segregation or other mechanism enables such
material to be automatically blocked or screened
by software or other capabilities reasonably
available to responsible adults wishing to effect
such blocking or screening and the defendant has
not otherwise solicited minors nt subject to such .
screening or blocking capabilities to access that
material or to circumvent any such screening or
blocking"
Pe oe
(Penal Law §235.23(3)).
I
A State Trooper assigned to the Computer Crime Unit
logged onto the Internet on October 28, 1996 and entered a chat
room entitled "KidsofFamilySex". The Trooper used the screen
name "Aimee_". Also in the chat room was a computer user, later
identified as defendant, who used the screen name "JustMee".
JustMee and Aimee_ engaged in a private chat. JustMee asked
Aimee_ "Weana [sic] chat sex?", and Aimee_ answered "OK".
Aimee_ identified herself as a 15-year-old girl who had sex with
her father, while JustMee identified himself as a 51-year-old male.
A-26
The conversation lasted approximately two hours, and was almost
exclusively about sex. JustMee asked Aimee_ whether she had
ever masturbated and how she liked having sex with her father.
JustMee described how he would have sex with her, and
encouraged Aimee_ to masturbate during their conversation.
Aimee_ said that she lived in Utica, while JustMee said that he
lived on Grand Island near Buffalo. During the conversation,
JustMee sent a few pictures to Aimee_ of "preteen girls and men"
engaging in sexual acts.
JustMee had three other private chats with Aimee_ during
the period from November 12 through 20, 1996. Each
conversation lasted at least two hours, and each time Aimee_
indicated that she was 15 years old. Each conversation centered
around sex; JustMee would encourage Aimee_ to masturbate and
to describe having sex with her father. JustMee told Aimee_ that
he wanted to have sex with her and described how he would do so.
JustMee sent Aimee_ more pictures of minors engaging in sexual
acts with other minors and with adults. During the third
conversation, JustMee described where he lived and said that he
wished they could meet, but that they would have to be careful if
they did meet. Aimee~ said that she had cousins in Buffalo and
could possibly make the trip to Buffalo. During the fourth
conversation, JustMee again discussed meeting with Aimee_; he
said that they would have to be discreet and meet in a parking area
at night. JustMee said they would need to make arrangements
ahead of time, and they discussed the possibility of meeting over
Thanksgiving weekend.
The police obtained the identity of JustMee by service of a
subpoena on the Internet service provider. On November 22,
1996, JustMee and Aimee_ engaged in their fifth on-line
conversation. They discussed where they could meet in Buffalo.
During that conversation, the police executed a no-knock search
warrant at defendant's residence and found defendant typing at his
computer. Defendant admitted that he had used the s¢reen name
JustMee and had several chats with Aimee_, whom he believed to
be 15 years old.
A-27
_ Wl
Defendant contends that Penal Law §235.22 is
_unconstitutionally overbroad and vague, that it is a content-based
restriction that cannot survive strict scrutiny, and that it violates
the Commerce Clause. Kings County Supreme Court is the only
court to have addressed the constitutionality of the statute. Ruling
on a defendant's pretrial motion to dismiss, the court (Marrus, J.)
found that the statute was not unconstitutionally vague or
overbroad and did not violate the Commerce Clause (see, People v
Barrows, 174 Misc2d 367, 372-373). After a jury trial, Barrows
was found guilty of two counts of attempted disseminating indecent
material to minors in the first degree (Penal Law §§110.00,
235.22) and one count of promoting an obscene sexual
performance by a child (Penal Law §263.10). He then moved,
pursuant to CPL 330.30, to set aside the verdict on the ground that
the statutes are unconstitutional and violate the First Amendment
and the Commerce Clause. This time, the court (Demarest, J.)
agreed with Barrows with respect to Penal Law §235.22 and set
aside the verdict with respect to those counts (People v Barrows,
177 Misc 2d 712). We conclude that Penal Law §235.22 is not
unconstitutional.
State statutes carry a strong presumption of
constitutionality and should be stricken as unconstitutional only as
a last resort (see, People v Davis, 43 NY2d 17, 30, rearg
dismissed 61 NY2d 670, cert denied 435 US 998). "The traditional
rule is that a person to whom a statute may constitutionally be
applied may not challenge that statute on the ground that it may
conceivably be applied unconstitutionally to others in situations not
before the Court" (New York v Ferber, 458 US 747, 767) . The
First Amendment overbreadth doctrine is, however, one of the few
exceptions to that general principle (see, New York v Ferber,
supra, at 768). Thus, defendant may attack an overly broad statute
even though, as here, his conduct “could be proscribed by a law
drawn with the requisite specificity" (New York v Ferber, supra, at
769: see, Alexander v United States, 509 US 544, 555, reh denied
510 US 909).
A-28
The overbreadth doctrine is to be applied sparingly and
only as a last resort (see, Broadrick v Oklahoma, 413 US 601,
613). It is to be applied whenever a statute "imposes a direct
restriction on protected First Amendment activity, and where the
defect in the statute is that the means chosen to accomplish the
State's objectives are too imprecise, so that in all its applications
the statute creates an unnecessary risk of chilling free speech"
(Secretary of Staje of Md. v Munson Co., 467 US 947, 967-968).
However, the “mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge" (Members of City Council
v Taxpayers for Vincent, 466 US 789, 800). Further, an individual
may challenge a statute as overbroad "only when the statute's
unconstitutional reach is substantial and the statute is incapable of a
reasonable limiting construction" (People v Hollman, 68 NY2d
202, 208) . :
The Legislature's objective in enacting Penal Law §235.22
was to protect children from “high-tech cybersex abuse and actual
sexual abuse" (Governor's Mem approving L 1996, ch 600) . The
Statute has two prongs, both of which must be met in order for an
individual to be convicted under the statute. The first prong
involves the dissemination of graphic images to a minor depicting
nudity, sexual conduct or sadomasochistic abuse that is "harmful to
minors". The statute provides:
"6. ‘Harmful to minors.' means that
quality of any description or representation, in
whatever form, of nudity, sexual conduct, sexual
excitement, or sado-masochistic abuse, when it:
(a) Considered as a whole, appeals to
the prurient interest in sex of minors; and
(b) Is patently offensive to prevailing
standards in the adult community as a whole with
respect to what is suitable for minors; and
(c) Considered as a whole, lacks
serious literary, artistic, political, and scientific
value for minors"
A-29
(Penal Law §235.20[6]). That definition mirrors the permissible
standard set forth in Miller v California (413 US 15, 24, reh
denied 414 US 881) . The second prong is the "luring" prong. It
prohibits the conduct of importuning, inviting, or inducing a minor
to engage in sexual activity. Penal Law §235.22 is a precise
means of accomplishing the Legislature's objectives. Under the
statute, adults may send sexual images to another adult, and may
also invite that adult to engage in sexual relations without risking
prosecution under the statute. Only when an individual sends
graphic images to 4 minor and then attempts to lure that minor into
sexual activity does he risk conviction under the statute. Because
of the two-pronged nature of the statute, communication between
adults would not be chilled (cf., Sable Communications of
California v Federal Communications Commn., 492 US 115, 131).
Contrary to defendant's contention, the statute is not similar to the
Federal Communications Decency Act of 1996 (CDA) recently
analyzed by the Supreme Court in Reno v American Civ. Liberties
Union (521 US 844, supra). The CDA prohibited the knowing
transmission of obstene or indecent messages to any recipient
under age 18, and prohibited the knowing sending or displaying of
patently offensive messages in a manner that is available to a _
person under age 18 (see, Reno v American Civ. Liberties Union,
supra, at 858-860). The CDA did not define "indecent" or
"patently offensive", and thus there would be uncertainty among
speakers concerning the meaning of those terms (see, Reno v
American Civ. Liberties Union, supra, at 871). In contrast, Penal
Law §235.22 defines what graphic images would be "harmful to
minors" (see, Penal Law §235.20 [61) and proscribes specific acts
by individuals.
Defendant sets forth two examples of impermissible
applications of the statute that would render it unconstitutionally
overbroad. However, those situations would not occur with such
frequency that the statute should be considered overbroad (see,
e.g., Members of City Council v Taxpayers for Vincent, supra, at
800-801). Whatever overbreadth might exist in this statute can be
cured by a case-by-case analysis (see, New York v Ferber, supra,
at 773-774). Any impermissible applications of the statute would
A-30
represent only a tiny fraction of the conduct within the statute's
reach and thus the overbreadth is not substantial (see, People v
Hollman, supra, at 209; see also, New York v Ferber, supra, at
773-774).
Defendant further contends that Penal Law §235.22 is
impermissibly vague. The "void-for-vagueness doctrine requires
that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement" (Kolender v Lawson, 461 US 352,
357; see, Hoffman Estates v The Flipside, Hoffman Estates, 455
US 489, 498, reh denied 456 US 950; People v First Meridian
Planning Corp., 86 NY2d 608, 621-622).
Defendant contends that the following terms are vague: It
sexual contact", "“importunes, invites or induces", "sexual
conduct", and “harmful to minors". We disagree. "Sexual
contact", while not defined in Penal Law §235.22, is defined
elsewhere in the Penal Law as "any touching of the sexual or other
intimate parts of a person not married to the actor for the purpose
of gratifying sexual desire of either party. It includes the touching
of the actor by the victim, as well as the touching of the victim by
~ the actor, whether directly or through clothing" (Penal Law
§130.00 [3]) In addition, the meaning of "sexual contact" can be
inferred from the other prohibited conduct, i.e., sexual intercourse
and deviate sexual intercourse. The terms "importunes, invites or
induces" are common terms with common ordinary meanings (see
generally, People v First Meridian Planning Corp., supra, at 622;
see also, Beauharnais v Illinois, 343 US 250, 253, reh denied 343
US 988). "Sexual conduct" is defined as "acts of masturbation,
homosexuality, sexual intercourse, or physical contact with a
person's clothed or unclothed genitals, pubic area, buttocks or, if
such person be a female, breast" (Penal Law §235.20[3]) . All the
terms within that definition are commonly used terms and are not
vague. Finally, "harmful to minors" is defined in Penal Law
§235.20(6) and has been held sufficient to give adequate notice to
individuals (see, Ginsberg v New York, 390 US 629, 643, reh
denied 391 US 971).
A-31
IV
Defendant also contends that Penal Law §235.22 is an
impermissible content-based restriction on speech. A statute that is
enacted for the purpose of restraining speech on the basis of its
content presumptively violates the First Amendment (see, City of
Renton v Playtime Theatres, 475 US 41, 46-47, reh denied 475 US
1132; Matter of Town of Islip v Caviglia, 73 NY2d 544, 556). The
purpose of the statute here is to protect children from the primary
effects of the transmission of offensive speech, and thus the statute
is a content-based restriction on speech (see, e.g., Reno v
American Civ. Liberties Union, supra, at 868, 871). In order for
the statute to remain valid, it must be a precisely drawn means of
_ serving a compelling State interest (see, Consolidated Edison Co. v
Public Serv. Commn. of N.Y., 447 US 530, 540). In addition,
"when government regulation designed to carry out a legitimate
and important State objective would incidentally burden free
expression, the government's action cannot be sustained unless the
State can prove that it is no broader than needed to achieve its
purpose" (People ex rel. Arcara v Cloud Books, 68 NY2d 553,
558).
It is well settled "that a State's interest in ‘safeguarding the
physical and psychological well-being of a minor’ is
‘compelling,’" (New York v Ferber, supra, at 756-757, quoting
Globe Newspaper Co. v Superior Court, 457 US 596, 607; see
also, Sable Communications of California v_ Federal
Communications Commn., supra, at 126). For the same reasons
that we concluded that Penal Law §235.22 is not overbroad, we
also conclude that the statute is a precisely drawn means of serving
a compelling interest, and is no broader than necessary. The
statute is thus constitutional under the First Amendment.
Vv
Defendant further contends that Penal Law §235.22
violates the Commerce Clause. The Commerce Clause is a grant of
authority to Congress to "regulate Commerce * * * among the
several States" (US Const art 1, §8, cl 3) . The Commerce Clause
"embodies a negative command forbidding the States to
discriminate against interstate trade" (Associated Indus. of
A-32
Missouri v Lohman, 511 US 641, 646; see, Homier Distrib. Co. v
City of Albany, 90 NY2d 153, 158). Where local legislative
objectives are credibly advanced in support of a statute and there is
no patent discrimination against interstate trade, the statute will be
upheld "'unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits," (City of
Philadelphia v New Jersey, 437 US 617, 624, quoting Pike v
Bruce Church, 397 US 137, 142; see also, Raymond Motor
Transp. v Rice, 434 US 429, 440). The purpose of Penal Law
§235.22 was not to regulate commerce, but to protect the children
of this State who use the Internet. The statute is not an economic
protectionist measure, but rather is directed at a legitimate local
concern.
In American Libs. Assn. v Pataki (969 F Supp 160), the
District Court for the Southern District of New York granted
plaintiffs’ motion for a preliminary injunction, finding that Penal
Law §235.21(3) violated the Commerce Clause. That statute is
_ Similar to the first prong of Penal Law §235.22, but it does not
include the second “luring” prong found in Penal Law §235.22(2).
The inclusion of the second prong in Penal Law §235.22 narrows
its scope and lessens any burden on commerce. Indeed, we cannot
conceive Of any legitimate commerce involving the sending of
graphic images to minors while at the same time attempting to lure
them into engaging in sexual activity. We conclude that any
incidental effects that Penal Law §235.22 may have on commerce
are not unduly burdensome in relation to the compelling interest of
the State in protecting children.
VI
Defendant contends that various alleged errors during trial
require reversal. We disagree. Defendant failed to preserve for our
review his contention that County Court's charge to the jury on
Penal Law §235.22 was erroneous (see, CPL 470.05[2]; People v
Hill, 236 AD2d 799, 800, lv denied 89 NY2d 1036). In any event,
defendant's contention is without merit. The statute does not
require the People to prove that defendant intended his
communication to be received by a minor.
A-33
Defendant's conviction under Penal Law §263.15 is based
on legally sufficient evidence and the verdict is not against the
weight of the evidence (see, People v Bleakley, 69 NY2d 490,
495). The People submitted sufficient proof that the graphic
images sent by defendant were pictures of actual children and had
not been altered. The jury had the pictures before it to review,
and its determination that the pictures represented actual children
is supported by the record. -
The court did not improperly restrict the
cross-examination of the State Trooper regarding his alcohol
addiction. While it was proper for defense counsel to
cross-examine the Trooper concerning his use of alcohol during
the computer conversations with defendant, it was improper for
counsel to cross-examine him regarding his alcohol use where
such alcohol use had no relation to his ability to recall or perceive
the events in question (see, People v Freeland, 36 NY2d 518,
525; People v Perotti, 233 AD2d 936, lv denied 89 NY2d 945;
People v Van Nostrand, 217 AD2d 800, 802, lv denied 87 NY2d
851).
Prior to trial, defense counsel was informed that the
Trooper had been arrested for assaulting his wife, resulting in his
suspension from work. Counsel sought discovery of the Trooper's
personnel file. Police personnel records are confidential, but they
may be turned over to a defendant if they contain exculpatory
information (see, People v Gissendanner, 48 NY2d 543, 547-548).
Here, the court conducted an in camera inspection of the file and
determined that it contained no exculpatory material. In any event,
even if the material was exculpatory and should have been
disclosed, there is no reasonable possibility that the failure to
disclose that information contributed to the verdict (see, People v
Vilardi, 76 NY2d 67, 77). Defendant was aware of the arrest and
the facts surrounding it, and he used that information to
cross-examine the Trooper (see, People v Cortijo, 70 NY2d 868).
The court properly admitted into evidence a computer disk
containing the conversations between the Trooper and defendant as
well as the graphic images sent by defendant to the Trooper. The
contents of the computer disk were unique, and the Trooper's
: A-34
_identification of the disk was sufficient evidence of its accuracy
and authenticity (see, People v Julian, 41 NY2d 340, 343; People
v Taylor, 206 AD2d 904, 905, lv denied 84 NY2d 940).
Finally, the court's charge to the jury with respect to the
definition of "performance" as that term is used in Penal Law
§263.15 adequately conveyed the law to the jury with respect to
the elements of the crime of promoting a sexual performance by a
child (see generally, People v Woods, 41 NY2d 279, 283). In any
event, the court's supplemental charge to the jury eliminated any
prejudice to defendant that may have resulted from the initial
charge (see, People v Dean, 56 AD2d 242, 253, affd 45 NY2d
651, rearg denied 46 NY2d 940; People v Strong, _AD2d ___
[decided Dec. 14, 1998], lv denied 93 NY2d 858; People v
Cannon, 168 AD2d 356, lv denied 77 NY2d 904).
Vil
Accordingly, the judgment should be affirmed. (Appeal
from Judgment of Oneida County Court, Dwyer, J. - Promoting
Sexual Performance by Child.) PRESENT: PINE, J. P., HAYES,
PIGOTT, JR., SCUDDER AND BALIO, JJ. (Filed June 18,
1999.)
A-35
STATE OF NEW YORK
ONEIDA COUNTY COURT
ONEIDA COUNTY COURT HOUSE
ELIZABETH STREET
UTICA, NEW YORK 13501
SHARON CARRAWAY *
ASSOCIATE COURT CLERK
315-798-5809
RECORD OF CONVICTION
ONEIDA COUNTY COURT
STATE OF NEW YORK ) :
COUNTY OF ONEIDA ) INDICTMENT NO: 197-158
CITY OF UTICA ) SCI NO.:
PEOPLE OF THE STATE OF NEW YORK
VS.
THOMAS R. FOLEY, SR.
D.O.B.: 10-08-45
THE ABOVE-NAMED WAS DULY CONVICTED IN ONEIDA
COUNTY COURT ON 11/25/97 UPON A TRIAL OF Promoting
Sexual Performance by a Child (Oct. 28, 1996 to Nov. 20, 1996)
(263.15) PL, Felony (2 cts.) and attempted Disseminating Indecent
Material to minors (110/235.22-1 & 2) (2 cts.) ON 01-20-98,
WAS SENTENCED TO On (263.15) PL, Felon 2 cts., two to six
Years on each count, and on (110/235.22) PL, Felony 2 cts., one
to three years on each count, to run concurrent.
I CERTIFY THAT THE ABOVE IS A TRUE
EXTRACT FROM THE MINUTES OF SAID
COURT, KEPT BY ME AS A CLERK THEREOF.
/s/
SUSAN M. NOWAK, COURT CLERK
WITNESS THE SEAL OF SAID COURT,
AT THE CITY OF UTICA, NEW YORK,
THIS 25" DAY OF February, 1998.
A-36
§235.23 Disseminating indecent material to minors;
presumption and defenses
:; A person who engages in the conduct proscribed
by section 235.21 is presumed to do so with knowledge of the
character and content of the material sold or loaned, or the motion
picture, show or presentation exhibited or to be exhibited.
£: In any prosecution for disseminating indecent
material to minors in the second degree pursuant to subdivision
one or two of section 235.21 of this article, it is an affirmative
defense that:
(a) The defendant had reasonable cause to believe that
the minor involved was seventeen years old or more; and
(b) Such minor exhibited to the defendant a draft card,
driver’s license, birth certificate or other official or apparently
official document purporting to establish that such minor was
seventeen years old or more.
3. In any prosecution for disseminating indecent
material to minors in the second degree pursuant to subdivision
three of section 235.21 of this article or disseminating indecent
material to minors in the first degree pursuant to section 235.22 of
this article, it shall be a defense that:
(a) The defendant made a reasonable effort to
ascertain the true age of the minor and was unable to do so as a
result of actions taken by the minor; or
(b) The defendant has taken, in good faith, reasonable,
effective and appropriate actions under the circumstances to
restrict or prevent access by minors to materials specified in such
subdivision, which may involve any appropriate measures to
restrict minors from access to such communications, including any
method which is feasible under available technology; or
A-37
(c) The defendant has restricted access to such
materials by requiring use of a verified credit card, debit account,
adult access code or adult personal identification number; or
(d) The defendant has in good faith established a
mechanism such that the labelling, segregation or other mechanism
enables such material to be automatically blocked or screened by
software or other capabilities reasonably available to responsible
adults wishing to effect such blocking or screening and the
defendant has not otherwise solicited minors not subject to such
screening or blocking capabilities to access that material or to
circumvent any such screening or blocking.
A-38
§235.24 Disseminating indecent material to minors;
limitations
In any prosecution for disseminating indecent material to
minors in the second degree pursuant to subdivision three of
section 235.21 of this article or disseminating indecent material to
minors in the first degree pursuant to section 235.22 of this article:
l. No person shall be held to have violated such
provisions solely for providing access or connection to or from a
facility, system, or network not under that person’s control,
including transmission, downloading, intermediate storage, access
software, or other related capabilities that are incidental to
providing such access or connectien that do not include the
creation of the content of the communication.
(a) The limitations provided by this subdivision shall
not be applicable to a person who is a conspirator with an entity
actively involved in the creation or knowing distribution of
communications that violate such provisions, or who knowingly
advertises the availability of such communications.
(b) The limitations provided by this subdivision shall
not be applicabie to a person who provides access or connection to
a facility, system, or network engaged in the violation of such
provisions that is owned or controlled by such person.
$ No employer shall be held liable under such
provisions for the actions of an employee or agent unless the
employee’s or agent’s conduct is within the scope of his
employment or agency and the employer having knowledge of
such conduct, authorizes or ratifies such conduct, or recklessly
disregards such conduct.
A-39
To be Argued by:
Paul J. Cambria, Jr., Esq.
Estimated Time for Argument:
30 Minutes
STATE OF NEW YORK
COURT OF APPEALS
PEOPLE OF THE STATE OF NEW YORK,
Respondent,
VS.
THOMAS R. FOLEY, SR.,
Appellant.
Appellate Division, Fourth Department
Docket No. KA 98-2083
Oneida County Indictment No. 97-158
LIPSITZ, GREEN, FAHRINGER,
ROLL, SALISBURY & CAMBRIA LLP
PAUL J. CAMBRIA, JR., ESQ.
ROGER W. WILCOX, JR., ESQ.
Attorneys for Defendant/Appellant
42 Delaware Avenue, Suite 300
Buffalo, New York 14202
November 4, 1999 (716) 849-1333
A-40
TABLE OF CONTENTS
Page
ARR Oe A Fe i hiv ekarentineciaseca tank (iii)
PURIST TRIAL, STATED vcdessasisssecacccndsasdctpacscans 1]
PERNT. © PETA CINE D siksidactncidivd dinntnnsidsamecsuaaivnioece 2
CPRPES ey 1 PEO WRIT TNE hin v'esns ds dcccdedurianssiaanapiptcinesaed 4
EPR EMRE COE WMG i vikcdaindnccdnbiinbinkucs pigeadcantadeneies 6
POINT I -
PENAL LAW §235.22 IS UNCONSTITUTIONALLY
OVERBROAD IN VIOLATION OF THE FIRST
AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 8 OF THE CONSTITUTION
OOF TERE EAE Ree CUR UE OIION ce iecchcdscaseledsakesdasieies 18
Fi; SI iid cacao ene ee 18
B. Penal Law §235.22 is
Unconstitutionally Overbroad....................sceeeeeeees 21
POINT II -
PENAL LAW §235.22 VIOLATES
THE COMMERCE CLAUSE AND
ED. CREME SUID MON REE soc ocdsssetunecdusceocdesessavecnuntade 30
POINT III -
PENAL LAW §235.22 IS UNCONSTITUTIONALLY
VALUE AND MUST BE DECLARED VODD ............... 37
A. The Terms Purportedly Defining Luring
Conduct Are Unconstitutionally Vague................... 38
B. The “Sexual Conduct For His Benefit”
Element of Penal Law §235.22(2) is
Also Unconstitutionally Vague ....................eeeeeeees at
POINT IV -
PENAL LAW §235.22 IS A CONTENT-
BASED RESTRICTION ON SPEECH WHICH
CANNOT SURVIVE STRICT SCRUTINY ................... 47
POINT V - -
PENAL LAW SECTION 263.15 IS
OVERBROAD IN VIOLATION OF THE
FEDERAL AND STATE CONSTITUTIONS ................ 53
POINT VI -
APPELLANT’S CONVICTIONS FOR
PROMOTING THE SEXUAL PERFORMANCE
OF A CHILD IN VIOLATION OF PENAL LAW
SECTION 263.15 ARE NOT SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE. ................s0ccce0
A-42
POINT VII -
THE TRIAL COURT’S RESTRICTION OF
CROSS-EXAMINATION BY APPELLANT
DENIED APPELLANT’S CONSTITUTIONALLY
PROTECTED RIGHT AS GUARANTEED BY THE
SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 6
OF THE NEW YORK STATE CONSTITUTION ........... 63
POINT VIII -
THE PROSECUTION FAILED TO ESTABLISH
AN UNBROKEN CHAIN OF CUSTODY
FOR CRUCIAL PHYSICAL EVIDENCE ..................... 67
CIC RIT 000 sccninsicessiabccasieuianeantainabahancalvahadumaicmnacebaeks 70
iil
A-43
TABLE OF AUTHORITIES
Page
Cases:
American Civil Liberties Union v. Johnson,
ee: ie SN i aid cdi nctdnadrdsserdcasssataes 19, 25, 29
American Libraries Association v. Pataki,
969 F.Supp. 160 (S.D.N.Y. 1997).... 18, 19, 21, 29, 31-36, 40
Boos v. Barry, 485 U.S. 312,
I i og (ine nkndvenaha dae dees 47
Broadrick v. Oklahoma, 413 U.S. 601,
I co ean tuacboedn dus 22
Brown-Forman Distillers v. N.Y. State,
ery WP A, Be CNMI abc cocdcaveccdectaccaccackas 32
C&A Carbone v. Town of Clarkstown,
ee eG: BOTT CRUIOD wn ccccidcceccuascetcssacseccs 30
Chambers v. Mississippi, 410 U.S. 284,
a as Ss adacictdwendwaav ons oinedstdanacse 63
Children of Bedford, Inc. v. Petromelis,
TF A. 0. 11S, BIO IN, ¥ 9.20 4593 CD) ono co ccncesecc ccc. 48
Coates v. Cincinnati, 402 U.S. 611,
rn ls cpkgundbe sub auapabdbesindbekus 37
Connally v. General Constr. Co.,
ee, en EO ok cscs secnansnsidaeesceded
A-44
Davis v. Alaska, 415 U.S. 308,
Oe a Se CE iitcinbbsc ihn icachicaiesdccsnasceeeee 63, 65
Grayned v. Rockford, 408 U.S. 104,
Fe ee ee Asistencia ataes ka tekuseseuceusunne 23, 37, 53
Homier Distrib. Co., Inc. v. City of Albany,
90 N.Y.2d 153, 659 N.Y.S.2d 223 (1997)..............cececeees 30
Hood & Sons v. DuMond, 336 U.S. 525,
OF cases, Ce IE birete pc cdcsaicntas ndta ss ended nak nse 30
Kolender v. Lawson, 461 U.S. 352,
ee ahs I OI as iiictcdrateicacisis easccieie cas 37, 38, 46
Miller v. California, 413 U.S. 15,
Ae ee vc cath ah atasiccokss iasaasisatitniseies 54
New York v. Ferber, 458 U.S. 747,
BEE Gah I AI os ciniccct ce cnucuskvacscassacdesns 53-55, 58, 60
People v. Barrows, 174 Misc.2d 367,
664 N.Y.S.2d 410 (Kings Co. 1997) .............cccscsccesscscses 49
People v. Barrows, _ Misc.2d ___, 20, 21, 27-29, 32, 33
GOTT TRF ee Oe (OE Giksinesisesssccicis 35, 36, 39, 42-45, 49
People v. Brown, 162 A.D.2d 695,
aT C6< 0 aA AEF Gs CII saints inscatdiniounacocasiis 65
People v. Chin, 67 N.Y.2d 22,
Oe Fa. Fee Oe CRT hist ckbeckasinwixtainscciacsnpiavwniaens 63, 65
People v. Concert Connection, 211 A.D.2d
310, G29 N.Y 5.20 256 CAE DG. ISDS) «0... cccccsccecscensces 31
A-45
People v. Connelly, 35 N.Y.2d 171,
cep RAE ET OFS: | Sper eper rr errr Try ror 68
People v. Cruz, 48 N.Y.2d 419,
Pig Rw Te Aner ererpoete Tre rereOrrrrrr re 37
People v. Dietze, 75 N.Y.2d 47,
BI FE Oe Fi I ov ceccnceccicccsaedicssicsvovecsnanccanedits 23
People v. Foley, A.D.2d__,
692 N.Y.2d 248 (1999)..........c.ccccosccsccscccceccssesscscesveces 20
People v. Freeland, 36 N.Y.2d 518,
I TE FSG Cat ic neitivesisci ccerbtinivisiserasinelnan 65
People v. Hawkins-Rusch, 212 A.D.2d
SOE CE? DUE. AGG) iw isivvssssersccsssiccscsnssscidcasenesscdcctaadsas 62
People v. Julian, 41 N.Y.2d 340,
Be FE a Gr Tas shncndai cde cusnissicetsincersicctasianns 68
People v. Keyes, 75 N.Y.2d 343,
EG, Fe Ce vkiivsncavcsedsssteisieensatsdenicataeninss 60
People v. McGee, 49 N.Y.2d 48,
rs § Ry Bes. Ape pnrerene rpm pene nro 68
People v. New York Trap Rock Corp.,
57 NN. Y.26 371, 456 N.Y S20 T11 .......cccscccccscncccencaneness 37
People v. Snyder, 90 A.D.2d 894,
456 N.Y.S.2d 536 (3d Dept. 1982).............ccscsccseseees 68, 69
People v. Wong, 81 N.Y.2d 600 (1993)............cceeeeeeeeeen ees
A-46
Pike v. Bruce Church, Inc., 397 U.S. 137,
FS EA, Be Ce krcanscacsantetesscsiscmiten cee: 30
Pro Choice Network v. Schenck,
eS BF la | Omer, pore el 37
Reno v. American Civil Liberties Union, 18, 20, 24-29, 32
521 U.S. 844, 117 S.Ct. 2329 (1997).......... 35, 41, 43, 48-50
Sable Communications of California, Inc. v.
FCC, 492 U.S. 115, 109 S.Ct. 2829 (1989)...... 24, 28, 42, 47
Simon & Schuster v. New York Crime Victim’s
Board, 502 U.S. 105, 112 S.Ct. 501 (1991)................... 48
Smith v. Goguen, 415 U.S. 566,
PO BAR, SIU CERI ois sicuiscssntcasanavectneeae cua 38
Time Square Books v. City of Rochester, 223
A.D.2d 270, 645 N.Y.S.2d 951 (4" Dept. 1996) ............. 48
Wabash, St. L&P Ry. Co. v. Illinois,
RIS U.S. B20, 7 SAX; Ge vaasseimsiisdnsnacbivoeda 35
Other Authorities:
1STT N.Y. Laren, Ci. GIG, Bate Ba mre iccvcvcvcctacccsdccccceces 60
Child Pornography Prevention Act ...................ceceeeeeesees 56
Communications Decency Act............cccccscscscsscsssecees 25-28
Criminal Procedure Law Section 330.30.....................000 20
Criminal Procedure Law Section 450.90(1) ...................000. 1
Vii
A-47
Criminal Procedure Law Section 460.20 ....................0eeeees ]
Criminal Procedure Law Section 470.35(1) .................eeeees l
Governor’s Memorandum on Approving L.1996,
ch.600 (September 4, 1996).............cseseceseeeneneeenees 23, 48
New York State Constitution,
Ie Sac: vse sb ainentecadedinkinuncancdinniansuahives 63
New York State Constitution,
IE FE iain coisccdcindbscdsnsvenbspnesibssadéacticsta 4,18
New York State Penal Law
a i a a 54, 60
New York State Penal Law
I en cdadindsbanidanuniostawas 50
New York State Penal Law
I CO en og wiivickenke see bkamaanaeeeinaen 51
New York State Penal Law
I I ne hn ed aeanoneieeaemann 51
New York State Penal Law
EE EE oi ippeccncdinasaduwanensnsenbsesenaseavines 2
New York State Penal Law
I isis sccesciconacddncdsnnstintandrianiionatanehadas 44
New York State Penal Law
I Fe Re bien ininnnonsicncnsenconspauntivmbatabanatiiadaaee 51
Vili
A-48
New York State Penal Law
Se RAISES ER ep ie sree Wig Prres nic aan SN RCS 23
New York State Penal Law
I FI oie ciens inci aeiccncnecs 19, 31-33, 35, 36
New York State Penal Law
ek oY 9 ie 2-4, 18, 20, 21, 23, 24, 26, 27, 29-52
New York State Penal Law
PA FEO aa ob hendcscks\tiantcenomiens 19, 27, 38, 42
New York State Penal Law
I BI adiati pecilkiiecasancsssicin 28, 39, 44, 45
New York State Penal Law
BE I IEEE AL cccnicksdsanaducceccssi; coe 21, 27, 50
New York State Penal Law
SNE MUIDA BU ns ccnaecnsk sisi auivsy Gu eenoie eabca aude aca a 2
New York State Penal Law
NERD PRPS hicoociciix cies sii Sas 2-4, 45, 53, 54, 58-62
New York State Penal Law
NY ED sive siedcceidvasccaniebiceiotn na 2, 46
Telecommunications Act of 1996 ............... ccc ce ceecccceeeee 24
Title 18, United States Code,
I Si a ae 55
Title 18, United States Code,
IIE I sbisccieiie cdi ee a eo 56
ix
A-49
Title 18, United States Code,
Gordie DISGG) ooo cssisvcecs cc ccesecccsticassuccveessensssesases 56
United States Constitution
Ce CIS oi iii. cies aaa 2, 4, 30-33, 35, 36, 43
United States Constitution,
Article 1, Section 8 ...ic.ccc.ccccccccccccccdccccsccsescscesscenes y
United States Constitution,
Winns REE oon oon oc cies cccseicvacs 2. 4, 8, 22, 3S. K.P
United States Constitution,
i Da os inn cin cade ias an cakdanende 2, 4, 18
United States Constitution,
a ig cca gles bnitn ceuieaaananensssnineanen 63
A-50
JURISDICTIONAL STATEMENT
This Court has jurisdiction pursuant to Criminal Procedure
Law Sections 450.90(1), 460.20 and 470.35(1) to entertain this
appeal and to review the questions raised herein. These issues were
raised at the Appellate Division, Fourth Department, and were
properly preserved at trial [see, pages 27-30, 32-33, 35, 37, 134-43,
175, 970, 1204-05 and 1321-23 of the Record on Appeal].
PRELIMINARY STATEMENT
This is an appeal from a judgment of conviction entered in
Oneida County Court (Dwyer, J.) on January 20, 1998. An
indictment was filed on May 8, 1997, charging appellant, Thomas
R. Foley, Sr., with the following offenses: Promoting an Obscene
Sexual Performance by a Child in violation of Penal Law §263.10
(three counts); Promoting a Sexual Performance by a Child in
violation of Penal Law §263.15 (three counts); Obscenity in the
Third Degree in violation of Penal Law §235.05(1) (three counts);
Attempted Disseminating Indecent Material to Minors in the First
Degree in violation of Penal Law §§ 110/235.22(1) and (2) (two
counts).
A jury trial was conducted from November 18-25, 1997.
Prior to opening arguments, the People moved to dismiss six counts
of Obscenity in the Third Degree and Promoting an Obscene Sexual
Performance by a Child. The jury ultimately returned a verdict
convicting defendant of two counts of Promoting a Sexual
Performance by a Child (Penal Law §263.15) and two counts of
Attempted Disseminating Indecent Material to Minors in the First
Degree (Penal Law §110/235.22). On January 20, 1998, the
Honorable Michael L. Dwyer sentenced defendant to two to six
years incarceration on each conviction of Promoting Sexual
Performance by a Child and imposed one to three years
A-51
incarceration on each conviction of Attempted Disseminating
Indecent Materials to Minors. These sentences are to run
concurrently.
A timely Notice of Appeal was filed on appellant's behalf.
On November 20, 1998 appellant filed a brief on appeal with the
Appellate Division, Fourth Department. Appellant challenged his
convictions on eleven grounds, arguing that:
(1) Penal Law §235.22 is unconstitutionally
overbroad in violation of the First and
Fourteenth Amendments to the United States
Constitution and Article I, §8 of the
Constitution of the State of New York;
(2) Penal Law §235.22 violates the Commerce
Clause;
(3) Penal Law §235.22 is a _ content-based
restriction on speech which cannot survive
strict scrutiny;
(4) Penal Law §235.22 is unconstitutionally
vague;
(5) The trial court erred in failing to charge that
the People must prove that appellant had a
specific intent to communicate with a minor;
(6) Appellant's convictions for promoting the
sexual performance of a child are not
supported by legally sufficient evidence and
are against the weight of the evidence;
A-52
(7) Penal Law §263.15 is unconstitutionally
overbroad;
3
(8) The trial court's restriction of
cross-examination by counsel denied :
appellant his constitutionally guaranteed :
right to confrontation;
(9) The People failed to comply with appellant's
discovery demand for Brady material;
(10) The prosecution did not establish an :
unbroken chain of custody with respect to
the evidence admitted at trial; and :
(11) The trial court's charge to the jury with
respect to "performance" denied appellant a
fair trial.
The People filed a responding brief on or about March 22,
1999. Oral argument was heard on April 8, 1999. The Appellate
Division, Fourth Department, issued its Decision and Order on June
:
18, 1999. Leave was granted by order of the Honorable George
Bundy Smith dated August 30, 1999.
Appellant is represented on this appeal by Paul J. Cambria,
Jr., Esq. of the law firm Lipsitz, Green, Fahringer, Roll, Salisbury
& Cambria LLP. The People of the State of New York have been
represented throughout these proceedings by Michael A. Arcuri,
Esq., Oneida County District Attorney.
No stay of execution of judgment has been granted by the
Court in this case.
A-53
QUESTIONS PRESENTED
Is Penal Law §235.22 unconstitutionally overbroad in
violation of the First and Fourteenth Amendments to the
United States Constitution and Article I, Section 8 of the
Constitution of the State of New York?
The Appellate Division ruled that Penal Law §235.22 is not
unconstitutionally overbroad.
Does Penal Law §235.22 violate the Commerce Clause?
The Appellate Division found that Penal Law §235.22 does
not violate the Commerce Clause.
Is Penal Law §235.22 unconstitutionally vague?
The Appellate Division determined that Penal Law §235.22
is not unconstitutionally vague.
Is Penal Law §235.22 a content based restriction on speech
which cannot survive strict scrutiny?
The Appellate Division concluded that Penal Law $235.22 is
@ content-based restriction on speech which passes muster
under the strict Scrutiny test.
Is Penal Law §263.15 unconstitutionally overbroad?
The Appellate Division did not directly answer this question.
A-54
6. Are appellant's convictions for promoting sexual
performance of a child supported by legally sufficient
evidence?
The Appellate Division held that appellant's convictions
pursuant to Penal Law §263.15 were supported by the
legally sufficient evidence.
pf Did the trial court's restriction of cross-examination by
appellant deny him his constitutionally guaranteed right to
confrontation?
The Appellate Division concluded that appellant was not
deprived of his constitutionally guaranteed right to
confrontation.
8. Did the prosecution establish the required unbroken chain of
custody with respect to crucial physical evidence admitted at
trial?
The Appellate Division concluded that the chain of custody
was sufficiently established by trial testimony.
STATEMENT OF FACTS
The focus of this case is on Internet communication and the
transmission of graphic images via computer. "The Internet" is a
collection of millions of computers connected to each other via a
global network. Computer users can access this network through
Internet Service Providers which essentially permit their subscribers
to use one of numerous modems provided by the service provider in
order to connect to the Internet through heavy-duty cable lines
[491-92, 988]. The services are usually provided for a monthly
access fee and usually provides the subscriber with electronic mail
OR AE ee ar ae OS et Sent Ee oe ne
A-55
Capabilities [492]. Access to the Internet via an Internet Service
Provider allows computer users to communicate in approximately
real time with other computer users. Often, these "computer
conversations" occur in what are known as "chat rooms."
Communication on the Internet sometimes takes place in
"chat rooms," which are Internet sites which allow computer users
tO Carry on "conversations" (typed -- not verbal) concerning topics
of interest to them. A chat room discussion may be open to the
public as a group forum allowing any interested Person to participate
in, or eavesdrop on, the conversation. From there, individual users
may break away for private chats [497].
such as Internet Relay Chat (IRC) software, users can also post a
profile of themselves for others to see (although this is not required).
This software also allows users to identify someone they are in
communication with through the use of two Computer commands.
The "DNS (domain name server)" command identifies the Internet
Service Provider the message was routed through and shows which
of the service provider's modems was used to deliver the message.
With that information, upon an authorized request the service
provider can identify whose account accessed the service provider's
modem, although it cannot identify who achially sent the message
using that account (498-503, 831]. The "Who Is" command will
Produce the same information, but may also provide a user profile if
one was created [503].
A-56
In addition to text communication, graphic images can also
be transmitted from one computer user to another. The most
common forms of graphic files are either "JPG" or "GIF" files
[503-04]. A graphic image is an image composed of hundreds of
"pixels" -- essentially small dots which, when combined with many
other small dots, make up the graphic image. The color of each
pixel is controlled by a hexadecimal (six digit) number assigned to
it; the pixel presents a different color depending on how the
hexadecimal number is set [992-93].
Because hexadecimal numbers can be manipulated, graphic
images can be the product of a graphic artist or can be composites of
two or more graphic images. Indeed, software packages which
enable computer users to rearrange graphic images by changing the
pixel colors are readily available [987-90, 1017]. Today's
technology allows any interested person to easily create graphic
images which appear to be that of a person, but which do not
represent a person in reality [1011, 1016-17]. In fact, the People's
main witness, Trooper Mark Williams, admitted that he knew how
to alter a graphic image to change its original appearance and
acknowledged having altered image files using popular software
[737-38].
Dr. Daniel Murphy, appellant's expert witness, explained
that there is a five (5) page study which shows a sequence of
illustrations to show how to make a natural-appearing graphic file
from an inanimate object [1011]. After a cursory review of the
printouts of the graphic image files in question, Dr. Murphy was
able to point to at least one that may have been altered from graphic
files [1015].
Appellant, Thomas R. Foley, Sr., became interested in
computers in 1988. An automobile accident caused by a drunk
driver (not appellant) left appellant with severe injuries, including a
A-57
double skull fracture, broken shoulder
and blood loss.
S, a cracked spine, broken ribs
Appellant was in a coma for four days after the
accident and was hospitalized for about six weeks. As part of his
rehabilitation program, appellant was introduced to computers for
purposes of improving mental skills diminished as a result of the
accident [1048-49, 1066-70, 1075-78].
After finishing rehabilitation, appellant did not use a
computer again until 1995 when his daughter bought him a used
computer. Some time thereafter, appellant purchased a modem and
software which allowed him to access the Internet. Appellant
browsed the Internet for topics of interest to him, such as the
NASA, Federal Bureau of Investigation and Federal
Communications Commission web-sites. As Chief Engineer at a
Lockport radio station, appellant had a particular interest in the FCC
web-site. He also used his Internet access tO get recipes for his wife
of twenty-eight years [1065, 1080-81]. While browsing on the
Internet, appellant also discovered that sexual material was
available. In fact, graphic image files were posted for anyone to
download [1084-85].
During the Spring of 1996, a friend helped him download
Internet Rely Chat software which enabled appellant to communicate
with other people on the Internet. Towards the end of the Summer
of 1996, appellant started eavesdropping in public chat rooms
[1077-82]. These Sites allowed users to enter a Chat room and view
Or participate in the computer-mediated discussions other people
were having related to the chat room topic. The user's computer
screen would show the text of these conversations. If so desired,
two or more people could move their discussion to a private chat
room where their conversation could not be seen by just anyone who
entered the public chat room [497].
Eventually, appellant began participating in these chat room
A-58
conversations to avoid getting kicked out of the chat room by other
participants if he eavesdropped for too long [1087]. His computer
was located in the living room of his home and appellant's wife sat
just a few feet away from him during these chat sessions [1088-89].
While appellant may have had sexually explicit discussions with
others in these chat rooms, he never actually met anyone he
conversed with by computer [1089].
New York State Police Trooper Mark Williams was also a
computer user -- as part of his job. In March 1993, Williams was
assigned to the Computer Crime Unit, which was responsible for
investigating the dissemination of child pornography over the
Internet [489-90]. At the time of the trial herein, Williams was on a
paid suspension as a result of assault and menacing charges filed
against him by his wife on May 21, 1996. These charges were
adjourned in contemplation of dismissal with the consent of the
Oneida County District Attorney -- the same agency which
prosecuted appellant below [486-87, 728-30]. The State Police had
also conducted a disciplinary hearing regarding Williams’ conduct,
but no decision had yet been made [487].
Trooper Williams testified concerning five Internet chat
discussions he had with appellant during the months of October and
November 1996. While approved by his superiors, Williams’
Internet activity was not governed by any written protocol. The
investigative procedures were developed on an ad hoc basis; the
only investigative standard limiting Williams' computer investigation
was the verbal understanding that, on the first exchange, the police
would not initiate contact and that the police would not send child
pornography to anyone [756-59].
During the evening of October 27, 1996 and into the early
morning hours of the next day, Trooper Williams was working at
the Marcy Barracks in Oneida County. Using his on-line persona,
A-59
Aimee, Williams entered a chat room entitled "
At approximately 11:37 p.m., Williams c
computer user with the screen
Kids of Family Sex."
laimed that another
name "JustMee" asked him "WEanna
18]. A conversation ensued during which
Williams portrayed himself as fifteen-year-old Aimee, a sexually
active girl who had sex with her father [518-19].
Said she had an uncle there.
fifty-one years old and married
conversation revolved generally
Williams, as Aimee, described
As Williams recalled, at approximately 12:20 a.m., JustMee
offered to send Aimee some "Preteen fucking pics." Aimee said she
would like to see them, so a number of graphic image files were sent
[521]. JustMee variously described the files as containing "preteen
girls and men," "10 yr old girl on a man," and 12 yr old girl on a
(sic) older man." Williams, as Aimee, said, "I like these Kid Sex
Pics. You get tired of Seeing only adult stuff" [523].
During this initial conversation between JustMee and
Aimee, Williams used the DNS and Who Is commands to identify
JustMee's Internet Service Provider as MicroAge WNY [532-36].
He also added JustMee to his “notify list," a computer function
which would let Williams know that JustMee had logged on to
Internet Rely Chat [567].
A-60
In October and November of 1996, MicroAge of Western
New York maintained eighty-five modems. Each of these modems
had its own "point-to-point log" which kept track of which customer
was using a modem at a given time [817-20]. Daniel A. Kotarski,
Vice President of Wizard Communications Systems (which took
over MicroAge), identified the account of Thomas R. Foley, Sr., as
being connected to one of MicroAge’s modems during the October
28, 1996 conversation with Aimee. He admitted, however, that
there was no way MicroAge could tell who was using appellant's
account or where the user of the account signed on from (the
computer could have been in Canada and MicroAge would not have
known) [817-32].
Testifying in his own behalf, appellant recalled the events of
October 27th to 28th very differently. While Williams claimed that
appellant as "JustMee" had initiated the chat discussion, appellant
recalled Williams breaking into a conversation he was having with
someone else.
On the evening of October 27th, appellant entered the
"Daddy/Daughter" chat room and observed only two other
participants, Aimee and Redstone. He saw no discussion on his
screen, so he assumed that Aimee and Redstone were having a
private chat [1090-91]. Appellant then entered a chat room entitled
"Kids of Family Sex" and noted a number of other computer users
were already there. Seeing someone who identified himself as a
father, appellant attempted to contact him for the purpose of
arranging a direct chat [1091-92]. A two-finger typist, appellant
customarily watched his keyboard as he typed. On this occasion, he
contacted the other person and typed, "Hi." When this other
individual responded in like fashion, appellant looked down at his
keyboard and typed, "wanna chat sex" (after mistakenly typing
"weanna"). When he looked up at his screen, however, appellant
11
A-61
Saw that Aimee -- rather than the person he had engaged in
conversation -- had responded, "yes, w/my father" [1092-93].
Recognizing that Aimee was not the one he had originally
contacted, appellant continued the discussion in light of the
responses he received from this Persona even though Aimee
Purported to be a fifteen-year-old girl. Reflecting Trooper
Williams’ own experience with the Internet, appellant understood
that role playing was common in these chat rooms and that if
another person was presenting as a female, usually it is actually a
male [760, 1094]. Significantly, appellant did not believe that
Aimee was actually a teenager who had sex with her father [ 1095].
He in fact thought that Aimee was a fantasy persona of a male Chat
room participant -- that the other Person was role playing as Aimee
[1096-97].
Appellant admitted having a sexually explicit conversation
with the individual playing the role of Aimee and also sending
graphic image files to that persona. He felt this was Just part of
what people normally did in this type of chat room, so he did it.
The graphic image files transferred by appellant to Williams
were sent to appellant by other Internet users. He did not create any
12
A-62
of the graphic images himself and did not obtain them from
photographs, videotapes or motion pictures. Further, appellant had
never photographed or videotaped anyone engaged in sex
[1097-1101].
Immediately after his chat discussion with Trooper Williams
ended, appellant was contacted for a private chat by someone using
the screen name "Redstone." This user had been in the
"Daddy/Daughter" chat room with Aimee when appellant had
visited it just before his chat discussion with Aimee. Appellant
asked Redstone if he was Aimee's father. Redstone responded
"yes" and appellant simultaneously received a graphic file sent by
Redstone, who indicated the girl depicted therein in sexual contact
with a male (Exhibit 37) was his daughter [1101-04]. Appellant
never heard from Redstone again and had no idea who Redstone
was in reality [1104-05].
After the October 28th communication, appellant made no
attempt to contact Aimee [1105-06]. However, on November 12th,
Trooper Williams, as Aimee, saw that appellant was logged onto the
Internet and "messaged him directly" for a private chat [567, 570,
787, 1107]. This computer communication between Aimee and
appellant began on the evening of November 12, 1998 and lasted
into the early morning hours of November 13, 1998. As Williams
acknowledged, appellant could not even remember who Aimee was
during the initial phase of the conversation [788, 1107-08].
Williams' persona, Aimee, proceeded to engage in a sexually
graphic discussion with appellant during which "she" told appellant
that she would someday like to have sex with someone besides her
father and that she preferred older men. Part of the conversation
involved fantasy discussion regarding how Aimee and appellant
might have sexual relations if they ever met. During this
fantasizing, Williams engaged in role-playing and displayed a
graphic imagination [573-602]. Not content to let appellant simply
eg ee ee ee Oe Pe ee re Pe ee ee oe ee
A-63
Say what he felt like saying, Williams became an equal participant in
the discussion, explicitly detailing the sordid sex life and fantasies of
his persona. As Williams put it, he felt he had to be "entertaining"
[764].
Just as he did during the first chat session on October 28th,
Williams introduced Aimee's fictional aunt and cousins from Buffalo
into the conversation (575, 592-93]. Significantly, even though
Williams had brought up the subject of Aimee's fictional aunt and
uncle from Buffalo, appellant tried to end the conversation so he
could go to bed without ever mentioning -- either as fantasy or
otherwise -- the Possibility of meeting Aimee [575, 592, 1109].
Aimee and appellant also discussed the graphic image file
purportedly representing Aimee which Redstone had sent to
appellant on October 28, 1996. Appellant then sent this file --
entitled 'Teen69.,pg -- to Aimee for the Purpose of ascertaining
whether she was the girl represented in the image, as claimed by
Redstone. Aimee denied she was the female depicted [577, 590-91,
608, 783-85, 1107-09]. During this conversation, which lasted for a
couple of hours, appellant transferred no other graphic image files to
Williams and made no plans to meet Aimee at any time [510].
The next chat session between Trooper Williams and
appellant occurred on November 15, 1996 from 8:28 p.m. to
10:43 p.m. [615]. Although disputed by Williams, appellant
recalled that Williams contacted him for a private chat {1119}.
During the November 15th communication, JustMee and
Aimee shared their fantasies about what turned them on [617].
Shortly into the conversation, Aimee announced that "she" was
going to find a map and locate where JustMee lived [620-21].
Appellant also fantasized about what he would like to do with Aimee
if they ever met. He did not ask Aimee to meet him and did not
14
A-64
make any specific plans to meet at any time [626-27]. No graphic
image files were transferred during this chat session.
A fourth chat session took place on November 20, 1996.
The conversation between Aimee and JustMee lasted approximately
two hours [653; People's Exhibit 44]. After discussing activities
over the previous weekend, Aimee asked JustMee why he had not
sent more graphic files. Appellant then sent three graphic image
files entitled "pt+teenl.jpg," "pt+teen2.jpg" and "pt+teen3.jpg."
He did not, however, know the contents of these files when he
transmitted them to Aimee [670-72, 1119, 1169-70; People's
Exhibits 47, 48 and 49].
- During the November 20th conversation, Trooper Williams
adopted the graphic image file sent to appellant by "Redstone" on
October 28, 1996 as representing "Aimee" [657-58; People's
Exhibit 37]. In addition to general sexual talk, appellant commented
that if they ever met, he would like to see Aimee in stirrup pants or
leggings [664]. Just a few moments later, Williams then mentioned
that she was going to talk to her cousin from Buffalo [664].
Eventually, the discussion turned back to the subject of
meeting. To appellant, it was clearly a fantasy; no more than a
hypothetical about what they would do together if they ever met.
Williams, however, made his character, Aimee, very aggressive,
asking JustMee if he would really like to meet and inquiring if
JustMee wanted her to see if she could visit her cousin in Buffalo
during the holidays [665-66]. While appellant responded "yes" to
the Aimee persona, he quickly made it very clear that he might not
show up [667].
On November 21, 1996, Trooper Williams obtained a "no
knock" warrant from Oneida County Court Judge Barry Donalty
authorizing the New York State Police to search appellant's Grand
15
A-65
Island residence [685-87]. The next day, Williams and Investigator
Robyn Cadwell traveled to the State Police barracks in Lewiston,
New York. They brought along Williams’ computer and set it up in
the barracks [688-89].
On the evening of November 22nd, Investigator Cadwell
and other state troopers placed the Foley residence under
surveillance. Williams remained at the barracks and contacted
appellant on the Internet. Once he made contact with appellant at
approximately 9:23 p.m., Williams notified the other troopers by
radio [691-92].
During this last Internet chat session, Aimee and JustMee
discussed sex and appellant fantasized about what they could do
together if they ever met [693-94]. About an hour later, as JustMee
was asking why "Redstone" would send him a picture of Aimee, the
troopers executed the warrant at appellant's home [696-97].
Investigator Cadwell was the first to enter the residence and found
appellant seated in front of a computer in the living room Just to the
left of the entryway [856].
Appellant's wife was also in the living room. Cadwell told
appellant to step away from the computer and he did. When he tried
to call his daughter who was in law School, appellant was placed in
handcuffs [858, 1125]. He was then taken to the Lewiston barracks
for questioning [864].
While at the State Police barracks, appellant asked if he
could call his daughter, Kimberly [908-09, 1130]. Investigator
Cadwell dialed the telephone number and spoke to Kimberly before
giving the telephone to appellant. Kimberly gave the investigator
the name of an attorney in the Buffalo area and his telephone
number, but Cadwell maintained that she could not recall being
informed that the person Kimberly referred to was an attorney.
16
A-66
Regardless, Cadwell did not give the information to appellant [869,
909-11, 1153).
Thereafter, appellant was asked to sign a four-page written
statement prepared by Investigator Cadwell. Although the statement
contained a typed Miranda waiver and appellant was given an
opportunity to read through the statement, he did so without the
benefit of his eyeglasses which he needed for reading purposes
[1130-32]. After being informed that he was under arrest for
computer crimes, but before he signed the written statement,
appellant told Investigator Cadwell that it was not “real porno”
[1129]. Appellant thought that what he saw on the Internet were not
photographs, and that they did not depict real children or real
people. Having never seen photographs of children in
sexually-explicit situations, appellant thought that the computer
images were composites [1129-30].
As Trooper Williams testified, role playing in Internet chat
rooms is prevalent. Approximately 70-80 percent of chat room
users are male and it is common for males to play female roles. As
Williams noted, a male will get more chat room responses if he
pretends to be a female [776]. Similarly, appellant thought Aimee
was the female persona of a male chat room user [1095-97]. He
never believed that Aimee was an actual fifteen-and-one-half year
old female having sex with her father [1095, 1110]. Appellant
engaged in these chat discussions for fantasy purposes and never
intended to meet Aimee [1099-1101, 1108-09, 1118-21, 1179-84].
A-67
POINT I
PENAL LAW §235.22 IS UNCONSTITUTIONALLY
OVERBROAD IN VIOLATION OF THE FIRST
ARTICLE I, SECTION 8 OF THE CONSTITUTION
OF THE STATE OF NEW YORK
A. Introduction.
This case involves the application of New York State's
The District Court in American Libraries Association v.
Pataki, 969 F.Supp. 160 (S.D.NLY. 1997), described the Internet in
this fashion:
The Internet is a network of networks -- 4
decentralized, self-maintaining series of redundant
links among computers and computer networks,
capable of rapidly transmitting communications
without direct human involvement or control. No
A-68
organization or entity controls the Internet; in fact,
the chaotic, random structure of the Internet
precludes any exercise of such control.
The information available on the Internet is "as
diverse as human thought." Every facet of art,
literature, music, news and debate is represented.
There can be no question that the overwhelming
variety of available information includes some
sexually explicit materials.
Id. at 164.
Similarly, in American Civil Liberties Union v. Johnson,
4 F.Supp.2d 1029 (1998), the District Court for the District of New
Mexico made extensive findings of fact concerning the nature of the
Internet prefatory to the granting of an order preliminarily enjoining
enforcement of a New Mexico state law essentially identical to New
York Penal Law §235.21(3) and §235.22(1). In particular, the
Court explained that "[e]lectronic mail, mail exploders, Internet
Relay Chat, USENET news groups, web-based discussion groups,
and the World Wide Web are available to Internet users
world-wide." Id. at 1032. The Court also observed that "[iJt is
impossible for speakers using electronic mail, mail exploders,
Internet Relay Chat, USENET news groups, web-based discussion
groups, and the World Wide Web to determine the geographic
location of persons who access their speech." Id. Finally, the
District court found that "[v]irtually all speech on the Internet that is
available to adults is also available to minors" and that "[t]here are
no good faith, reasonable, effective and appropriate actions available
to the vast majority of speakers on the World Wide Web to restrict
or prevent access by minors to their communications." Id. at
1031-32.
A-69
Of the various forms of communication on the Internet,
"chat rooms" are the most pertinent to the matter before this Court.
As the American Libraries Association Court explained,
[c]hat rooms allow on-line discussion in real time.
Users are able to engage in simultaneous
conversations with one or many "occupants" by
typing in messages and reading the messages typed
by others participating in the chat. . . There are
thousands of different chat rooms available "in
which collectively tens of thousands of users are
engaging in conversations on a huge range of
subjects." Fs
Id. at 166 (citations omitted). The Appellate Division below also
provided an apt description of a "chat room":
In a chat room, individuals engage in real-time
dialogue, i.e., when a message is typed, it appears
almost immediately on the computer screen of other
individuals in the chat room. The chat rooms foster
an exchange of information or ideas on a particular
topic. Two individuals may break away from the
main chat room to have a private chat. Individuals
in the chat room use "screen names" of their
choosing.
People v. Foley, __A.D.2d_, 692. N.Y.2d 248, 251 (1999).
"[S]exually explicit material on the Internet includes text,
pixtures and chat and ‘extends from the modestly titillating to the
hardest core.'". Reno v. American Civil Liberties Union, supra at
853, 117 S.Ct. at 2336 (foomote omitted). Indeed, appellant's
Internet expert, Dr. Daniel Murphy, noted that sex-related chat
rooms are common on the Internet. Dr. Murphy, a Professor at the
20
A-70
State University of New York Institute of Technology at
Utica/Rome and Academic Web Master for the School, explained
that during these “hot chats" participants commonly adopt on-screen
personas different from the reality of their lives [524, 539-43,
548-50]. Dr. Murphy's observations are mirrored by the findings in
People v. Barrows, __ Misc.2d_ __, 677 N.Y.S.2d 672 (1998),
where the Kings County Supreme Court in granting defendant's
CPL §330.30 motion with respect to his convictions under two
indictment counts charging violations of Penal Law §235.22
explained:
The evidence at trial clearly corroborated the
findings of several courts that the Internet is a
unique, international, as well as_ interstate,
phenomenon. The live courtroom demonstration
established that there is much anonymity,
uncertainty and lack of control in using the Internet.
Indeed, the Internet offers a "brave new world" of
communication which, although as Judge Preska
suggests [in the American Libraries case], is
analogous in some ways to a railroad, it is really
unlike any other previously-regulated form of
communication . . . . There is presently no
practical way to control the dissemination or receipt
of communications. It is not uncommon for an
Internet user to receive uninvited commercial or
personal solicitations, photographs and other
messages from anywhere in the world. Nor is it
possible for the "speaker" to control with certainty
the route or ultimate destination of his or her
message. The standards of propriety are no longer
confined to those of a particular geographic or
political community.
21
ee ee ee a eee, Oe ee
A-71
People v. Barrows, ___ Misc.2d__, 677 N.Y.S.2d at 681 (1998)
(citations omitted).
B. Penal Law §235.22 Is Unconstitutionally Overbroad.
Penal Law §235.22 reads as follows:
A person is guilty of disseminating indecent
material to minors in the first degree when:
~ % knowing the character and content of the
communication which, in whole or in part,
depicts actual or simulated nudity, sexual
conduct or sado-masochistic abuse, and
which is harmful to minors, he intentionally
uses any Computer communication system
allowing the input, Output, examination or
transfer, of computer data or computer
programs from one computer to another, to
initiate or engage in such communication
with a person who is a minor; and
ys by means of such communication he
importunes, invites or induces a minor to
engage in sexual intercourse, deviate sexual
intercourse, or sexual contact with him, or
to engage in a sexual performance, obscene
Sexual performance, or sexual conduct for
his benefit.
Additionally, certain affirmative defenses to prosecution
under, inter alia, Penal Law §235.22 are set forth in Penal Law
§235.23(3), which reads as follows:
22
A-72
In any prosecution for disseminating indecent
material to minors in the second degree pursuant to
subdivision three of section 235.21 of this article or
disseminating indecent material to minors in the
first degree pursuant to section 235.22 of this
article, it shall be a defense that:
(a) The defendant made a reasonable
effort to ascertain the true age of the minor and was
unable to do so as a result of actions taken by the
minor; or
(b) The defendant has taken, in good
faith, reasonable, effective and appropriate actions
under the circumstances to restrict or prevent access
by minors to materials specified in such
subdivision, which may involve any appropriate
measures to restrict minors from access to such
communications, including any method which is
feasible under available technology; or
(c) The defendant has restricted access
to such materials by requiring use of a verified
credit card, debit account, adult access code or
adult personal identification number; or
(d) The defendant has in good faith
established a mechanism such that the labelling,
segregation or other mechanism enables such
material to be automatically blocked or screened by
software or other capabilities reasonably available
to responsible adults wishing to effect such blocking
or screening and the defendant has not otherwise
solicited minors not subject to such screening or
A-73
blocking capabilities to access that material or to
circumvent any such Screening or blocking.
Laws which are overbroad and threaten the exercise of First
Amendment rights are unconstitutional. Broadrick v. Oklahoma,
413 U.S. 601, 93 S.Ct 2908 (1973). As the Broadrick Court
underscored:
It has long been recognized that the First
Amendment needs breathing space and that Statutes
attempting to restrict or burden the exercise of First
Amendment rights must be Narrowly drawn and
represent a considered legislative judgment that a
Particular mode of expression has to give way to
other compelling needs of society.
Id. at 611-12, 93 S.Ct. at 2915.
Where legislation is not narrowly draw, "[tJhe crucial
question then, is whether the ordinance Sweeps within its
Prohibitions what may not be punished under the First and
Fourteenth Amendments." Grayned vy. Rockford, 408 U.S. 104,
114-15, 92 S.Ct. 2294 (1972). Penal Law §235.22 prohibits a
Substantial amount of constitutionally protected expression and
"presents a significant risk of prosecution for the mere exercise of
free speech." People v. Dietze, 75 N.Y.2d 47, 50, 550 N.Y.S.2d
595 (1989).
24
A-74
The central purpose of the bill -- preventing the
dissemination of indecent materials to minors --
would be undercut substantially if the new offenses
require proof that the defendant knew he was
communicating, or intending to communicate, with
a minor. Accordingly such proof is not required --
as is apparent from the defenses created by new
subdivision 3 of section 235.23 of the Penal Law,
which contemplate criminal liability in the absence
of such proof.
Governor's Memorandum on _ Approving L.1996, ch.600
(September 4, 1996). The Appellate Division in its decision below
specifically found that "[t]he statute does not require the People to
prove that defendant intended his communication to be received by a
minor."
While the Legislature's intent in amending Penal Law
§235.21 to add subsection 3 and in creating Penal Law §235.22 was
obviously to combat communication of harmful sexual materials to
children and pedophilic activity, Penal Law §235.22 does so in a
manner which exposes to criminal liability even those who
unintentionally address a minor through a_ sexually-oriented
communication. If, for example, an individual sends a non-obscene
sexually explicit communication to someone whom he believes is
another adult and invites that person to engage in sexual contact with
him, but that message is erroneously sent to the wrong E-mail
address or the wrong chat room participant, he will still be
criminally liable under the statute even though he had no intent to
send the communication to a minor. Furthermore, as was discussed
during the trial, untold numbers of sexually explicit discussions take
place in Internet "chat rooms." Because public chat rooms permit
anyone to eavesdrop or participate in conversations taking place
therein, a communication between two (or possibly more) adults
within a chat room containing content of a nature proscribed by
25
A-75
Penal Law §235.22 will expose the speaker to the potential for
criminal prosecution if. unbeknownst to him, a minor is present in
the chat room.
A similar situation was addressed by the United States
or computer of obscene, indecent or patently offensive messages to
persons under the age of eighteen. In finding the challenged
sections unconstitutionally overbroad, the Supreme Court noted that
in Sable Communications of California, Inc. v. FCC, 492 U.S. 115,
129, 109 S.Ct. 2829 (1989), the Court had "made clear that the
mere fact that a Statutory regulation of speech was enacted for the
important purpose of Protecting children from exposure to sexually
explicit material does not foreclose inquiry into its Validity . . . that
inquiry embodies an ‘over-arching commitment’ to make sure that
Congress has designed its statute to accomplish its purpose ‘without
imposing an unnecessarily great restriction on speech.'" Reno v.
American Civil Liberties Union, supra at 875-76, 117 S.Ct. at
2346-47.
Noting that the Communications Decency Act was a
non-pornographic material with serious educational or other value."
Id. (footnote omitted). The Court rejected the Government's
arguments that the Act was narrowly tailored because its provisions
criminalized only communications to persons known by the speaker
to be under the age of eighteen. Emphasizing that there is no
effective way of determining the age of an Internet user, the Court
commented:
26
A-76
This argument ignores the fact that most Internet
fora -- including chat rooms, news groups, mail
exploders, and the Web -- are open to all comers.
The Government's assertion that the knowledge
requirement somehow protects the communications
of adults is therefore untenable.
Id. at 880, 117 S.Ct. at 2349. The Supreme Court's determination
that there was no reliable way for commercial or non-commercial
speakers to ascertain the age of an Internet user led it to conclude, as
the District Court had, that "the risk of criminal sanctions ‘hovers
over each content provider, like the proverbial sword of
Damacles.'" Id. at 882, 117 S.Ct. at 2349-50; see also, American
Civil Liberties Union v. Johnson, supra [where the United States
District Court preliminarily enjoined enforcement of a law
prohibiting the dissemination of sexually explicit material via
computer_to -minors on the ground that, inter alia, it was
substantially overbroad].
An example given by the Supreme Court in Reno to
highlight the fallacy of the Government's argument that prohibition
of transmissions whenever it is known that one of the recipients is a
minor would not interfere with communication between adults has
persuasive application in the instant case:
Given the size of the potential audience for most
messages, in the absence of a viable age verification
process, the sender must be charged with knowing
that one or more’ minors will likely view it.
Knowledge that, for instance, one or more members
of a 100-person chat group will be minor -- and
therefore that it would be a crime to send the group
an indecent message -- would surely burden
communication among adults.
A-77
Reno v. American Civil Liberties Union, 521 U.S. at 876, 117
S.Ct. at 2347.
Similarly, under New York Penal Law §235.22, if, for
example, a chat room Participant intends to simultaneously send a
sexually explicit graphic image file with an accompanying message
inviting other chat room Participants to get together with him for
certain lawful sexual activities (€.g., group sex), he runs a very real
risk that one or more minors will be among the innumerable people
who have access to the chat room at any given time. While the
speaker may not have had any intention of communicating the image
or the message to any minor, the communication may still end up on
the minor's computer Screen, thus exposing the speaker to criminal
prosecution.
Notably, Penal Law §235.22 does not contain even the
minimum protections which were found insufficient to save the
Communications Decency Act from being held unconstitutional on
the grounds of overbreadth. Here, the statute does not contain a
knowledge requirement which gives any assurance that criminal
liability will attach only to those individuals who knowingly have
proscribed communications with a minor. To the contrary, the
Legislature purposefully excluded knowledge of minority status as
an element of Penal Law §235.22. Thus, the grave threat of
prosecution is always present for the millions of Internet users who
engage in sexually oriented discussions or correspondence,
Particularly in the thousands of unregulated chat rooms populated by
false personas or "screen names."
In affirming appellant's conviction, the Appellate Division
took care to point out that Penal Law §235.22 is not similar to the
CDA and rejected the applicability of the Reno v. American Civil
Liberties Union analysis to the controversy before this Court.
Appellant acknowledges that the specific provisions of the CDA at
A-78
issue in the Reno case are not identical to the language of Penal Law
§235.22, but submits that the reasoning of the Supreme Court in that
case has great bearing on the resolution of the issues raised on this
appeal. Most notably, though still constitutionally deficient on
overbreadth grounds, the CDA contained a scienter requirement
regarding the age of the message recipient, a minimal protection and
narrowing mechanism which Penal Law §235.22 lacks.
Moreover, the availability of affirmative defenses to
prosecution under the statute does nothing to cure the overbreadth of
this statute. As the Supreme Court underscored in 1997 (and after
the trial in this matter), there is simply no way for a computer user
to reliably ascertain the age of an Internet user. Reno v. American
Civil Liberties Union, 521 U.S. at 881-82, 117 S.Ct. at 2349-50. In
so concluding, the Supreme Court rejected the Government's
argument that the overbreadth of the CDA was cured by the
inclusion of a scienter element, ruling that an Internet user's inability
to effectively determine the age of another Internet user left
continuously extant the risk of criminal prosecution regardless of the
knowledge requirement. Id. Similarly, the affirmative defense in
Penal Law §235.23(3)(a) provides no more protection against
overbreadth than the "knowledge" requirement rejected in Reno v.
American Civil Liberties Union; arguably, it provides less.
Furthermore, as noted by the Kings County Supreme Court
in People v. Barrows, 677 N.Y.S.2d 672 (1998), the "harmful to
minors" element set forth in Penal Law §235.22(1) suffers,
from the same imprecision and overbreadth [as the
CDA] in failing to provide a clear and predictable
definition of what transmissions will be deemed
"patently offensive to prevailing standards" of a
universal audience. Were it possible to confine the
use of the Internet within the State of New York,
A-79
perhaps the statute would be enforceable, but that is
neither possible, as evidenced by the case at Bar,
nor, in light of the potential of the Internet, is it
desirable to so restrict such communication.
standards of any community within the vast range of transmission as
to what is 'suitable' for children." Id. (emphasis added). In light of
the "international, 8eographically-borderless nature of the Internet's
reach, regardless of the speaker's intent," People v. Barrows, supra
at 638, application of the “community standards" element of the
"harmful to minors" test "means that any communication available
(0 a nation-wide audience will be judged by the standards of the
community most likely to be Offended by the message." Reno y.
American Civil Liberties Union, supra at 875, 117 S.Ct. at 2347,
Consequently, because of the nature of the Internet, New York's
standard for what is obscene as to children requires that "all Internet
communication miust, as a practical matter, be tailored to that
Standard to avoid Possible prosecution regardless of the intended
audience, thus ‘reducing the adult Population to only what is fit for
Children’ in violation of the First Amendment." Sable
Communications of Cal., Inc. v. FCC, Supra at 128, 109 S.Ct. at
2837. The overbreadth of such a provision is, therefore, readily
apparent.
The Appellate Division's conclusion that the addition of the
"luring" Prong (Penal Law §235.22/2]) sufficiently narrows the
30
A-80
prosecution for mere speech, even if the speaker never takes a step
toward actually achieving contact with the child beyond what was
said in the communication.
The Appellate Division's comment that "[o]nly when an
individual sends graphic images to a minor and then attempts to lure
that minor into sexual activity does he risk conviction under the
statute" ignores the realities of Internet communication recognized
by the Reno, American Libraries, ACLU v. Johnson and Barrows
Courts and impliedly rests on the assumption that the speaker had
knowledge of the underage status of the recipient.
The sweep of Penal Law §235.22 reaches far more
protected speech that is constitutionally permissible. Accordingly,
appellant respectfully requests that this Court reverse his convictions
and dismiss the counts of the indictment charging attempts to violate
Penal Law §235.22 on the ground that said statute is overbroad in
violation of the State and Federal Constitutions.
POINT Il
PENAL LAW §235.22 VIOLATES THE COMMERCE
CLAUSE AND IS THEREFORE INVALID
The Legislature created Penal Law §235.22 in an effort to
protect children from pedophilia on the Internet. The effect of this
legislation, however, reaches far beyond New York's geographical
borders and impacts substantially on interstate commerce. This
over-reaching violates the Commerce Clause of the United States
Constitution and renders the statute invalid. The Appellate
Division's decision to the contrary should be reversed.
Article I, Section 8, cl. 3 of the United States Constitution
grants Congress. the power "[t]o regulate Commerce with foreign
31
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Nations, and among the several States, and with the Indian Tribes, "
This affirmative grant of authority also has a "negative" aspect; the
Supreme Court "has long construed the Clause to imply a
corresponding prohibition against State measures that unduly or
discriminatorily burden interstate commerce." Homier Distrib. Co..
Inc. v. City of Albany, 90 N.Y.2d 153, 158, 659 N.Y.S.2d 223
(1997). This concept is grounded in the "'principle that our
economic unit is the Nation, which alone has the gamut of powers
necessary to control of the economy.’" C&A Carbone v. Town of
Clarkstown, 511 U.S. 383, 401, 114 S.Ct. 1677, 1688 (1994),
quoting Hood & Sons v. DuMond, 336 U.S. 525, 537-38, 69 S.Ct.
657 (1949).
Whether a state statute transgresses upon the regulat ry
power of Congress is determined by reference to a long-estab! shed
rule: "Where the statute regulates even-handedly to effectuate a
legitimate local public interest, and_ its effects on interstate
commerce are only incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the
putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137,
142, 90 S.Ct. 844 (1970); see also, People v. Concert Connection,
211 A.D.2d 310, 319, 629 N.Y.S.2d 254 (2d Dept. 1995).
A federal District Court has already enjoined the
enforcement of Penal Law §235.21(3) which reads identically to
Subdivision one of Penal Law §235.22, the whole text of which
A person is guilty of disseminating indecent
material to minors in the first degree when:
1. knowing the character and content of the
communication which, in whole or in part,
depicts actual or simulated nudity, sexual
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conduct or sado-masochistic abuse, and
which is harmful to minors, he intentionally
uses any computer communication system
allowing the input, output, examination or
transfer, of computer data or computer
programs from one computer to another, to
initiate or engage in such communication
with a person who is a minor; or
2. by means of such communication he
importunes, invites or induces a minor to
engage in sexual intercourse, deviate sexual
intercourse, or sexual contact with him, or
to engage in a sexual performance, obscene
sexual performance, or sexual conduct for
his benefit.
In American Libraries Association v. Pataki, 969 F.Supp.
160 (S.D.N.Y. 1997), the District Court ruled that Penal Law
§235.21(3), which criminalizes the communication set forth in Penal
Law §235.22(1) above as Disseminating Indecent Material to
Minors in the Second Degree, is "closely concerned with interstate
commerce, and scrutiny of the Act [Penal Law §235.21(3)] under
the Commerce Clause is entirely appropriate." Id. at 173.
Characterizing the Internet as a "borderless world" which
transcends states' geographical limits, the District Court concluded
that Penal Law §235.21(3) contravened the Commerce Clause in
three ways:
First, the Act represents an _ unconstitutional
projection of New York law into conduct that
occurs wholly outside New York. Second, the Act
is invalid because although protecting children from
indecent material is a legitimate and indisputably
33
A-83
worthy subject of state legislation, the burdens on
interstate commerce resulting from the Act Clearly
exceed any local benefit derived from it. Finally,
the Internet is one of those areas of commerce that
must be marked off as a national preserve to protect
users from inconsistent legislation that, taken to its
most extreme, could paralyze development of the
Internet altogether, Thus, the Commerce Clause
ordains that only Congress can legislate in this area,
Subject, of course, to whatever limitations other
Provisions of the Constitution (such as the First
Amendment) may require.
Id. at 169.
For example, the American Libraries Court found that the
New York State Legislature had Over-reached by enacting a law
which regulates Internet activity beyond New York's borders. In
particular, the Court considered whether the practical effect of Penal
Law §235.21(3) was to regulate out-of-state transactions. American
Libraries Ass'n y. Pataki, supra at 175-77; see also, Brown-Forman
Distillers v. N.Y. State, 476 U.S. 573, 581-83, 106 S.Ct. 2080
(1986) [where the New York liquor price affirmation law was found
to violate Commerce Clause because the practical effect of the
Statute was to regulate liquor prices in other States]. The American
Libraries Court concluded that Penal Law §235.21(3) had a chilling
34
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effect on Internet expression outside New York's territorial limits.
For instance, the Court pointed to the testimony of a number of-
witnesses who refrained from engaging in certain interstate
commerce because of the existence of the statute. The Court
specifically referenced the testimony of a "Web-site" operator who
removed several images from his "virtual studio" because he feared
prosecution under Penal Law §235.21(3):
As described above, no Web siteholder is able to
close his site to New Yorkers. Thus, even if
Mr. Kinsky were located in California and wanted
to display his work to a prospective purchaser in
Oregon, he could not employ his virtual studio to
do so without risking prosecution under the New
York law.
American Libraries Ass'n v. Pataki, supra at 174.
A similar difficulty is created by the existence of Penal Law
§235.22. Contrary to the reasoning of the Appellate Division, the
additional requirement that the speaker importune, invite or induce a
minor to engage in certain specified sexual activities does not
insulate out-of-state commerce from the effects of the statute.
As observed by the Barrows Court, in the absence of actual
physical steps taken to effectuate a meeting (as defendant Barrows
took when he entered New York State and approached a young
woman whom he believed to be the minor Internet user for the
purposes of consummating his intention to engage in prohibited sex
with a minor), suggestions during Internet chats which may be
interpreted by some as importuning, inviting or inducing a minor to
engage in sexual activities are "mere words." Thus, pure speech
unaccompanied by overt or provable acts cannot be characterized as
"conduct" for the purposes of giving Penal Law §235.22 a
narrowing construction in order to avoid a determination that the
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Statute violates the First Amendment and the Commerce Clause.
People v. Barrows, 677 N.Y.S.2d 672, 685 (1998).
The Appellate Division's observation that "we cannot
conceive of any legitimate commerce involving the sending of
graphic images to minors while at the same time attempting to lure
question is not whether the statute will burden commerce
intentionally and illicitly directed at children. Rather, the interstate
commerce-related concern is that legitimate Internet-based
commercial entities which purvey or advertise products and
Services intended for adults will be caught up in the broad sweep of
New York's Internet communication regulations. For example, a
Web-site operator in a state which does not require him to restrict or
interests (i.e., a common swingers' connection site or an
adult-dating service or Personal ads bulletin board), the web-site
Operator, wherever he is located, could face Prosecution under New
York law. Such web-sites are by no means uncommon.
Consequently, a commercial web-site Operator whose
Operations are located in another state which does not have
Proscriptions equivalent to those set forth in Penal Law §235.22 may
36
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find himself unexpectedly facing criminal liability for unintended
communications with minors. Indeed, as underscored by the
American Libraries Court and by the Supreme Court in Reno v.
American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329
(1997), such circumstances would not come as a surprise given that
there is no effective and reliable way to determine the age or
geographic location of Internet users. This same concern was
voiced in Barrows, where the Court emphasized that "[t]here is
presently no practical way to control the dissemination or receipt of
communications" on the Internet. People v. Barrows, 677 N.Y.S.2d
672, 681 (1998).
The remaining conclusions of the American Libraries Court
concerning the validity of Penal Law §235.21(3) apply equally to
§235.22. First, while protection of children from sexual
exploitation is undoubtedly a legitimate and important state goal, the
local effect of enforcement of Penal Law §235.22 will, for
Commerce Clause purposes, be far outweighed by the legislation's
negative impact on interstate commerce:
Balanced against the limited local benefits resulting
from the Act is an extreme burden on interstate
commerce. The New York Act casts its net
worldwide; -moreover, the chilling effect that it
produces is bound to exceed the actual cases that
are likely to be prosecuted, as Internet users will
steer clear of the Act by a significant margin.
American Libraries Ass'n v. Pataki, supra at 179. The mere
existence of Penal Law §235.22 exports New York's domestic
policies into other states (especially its community standards as to
what material is appropriate for minors). People v. Barrows, supra.
Finally, Internet communication is unquestionably an area
properly susceptible to regulation only by Congress. See, Wabash,
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St. L&P Ry. Co. v. Illinois, 118 U.S. 557, 7 S.Ct. 4 (1886) [where,
because of the national character of the railroad system, regulation
of it was entrusted to Congress rather than the individual States]. As
noted in American Libraries, "the Internet is analogous to a highway
or railroad." American Libraries y. Pataki, supra at 161. "The
Internet, like the rail and highway traffic at issue in the Cited cases,
requires a cohesive national scheme of regulation so that users are
reasonably able to determine their obligations." Id. at 182. In the
absence of federal regulation, states will be free to impose
conflicting obligations on Internet users. "Without the limitations
imposed by the Commerce Clause, these inconsistent regulatory
schemes could paralyze the development of the Internet altogether."
Id. at 181.
Indeed, as Judge Preska pointed out, even if all fifty states
adopted the "harmful to minors" definition utilized by New York,
Internet users would still be faced with a myriad of conflicting
obligations. The "prevailing community standard" with respect to
what is harmful to minors will undoubtedly vary from state to state.
Thus, leaving regulation of the Internet _to the states even where
they have "harmful to minors" definitions identical to New York's
will not create the uniformity of treatment necessary to ensure the
continued viability and growth of the Internet. Id. at 181-83.
While the American Libraries decision did not specifically
address Penal Law §235.22, the reasons set forth there for the
invalidation of Penal Law §235.21(3) as a violation of the
Commerce Clause are equally applicable to Penal Law §235.22.
See, People v. Barrows, Supra. Accordingly, appellant respectfully
requests that this Court declare Penal Law §235.22 unconstitutional,
reverse his convictions for attempted commission of that crime, and
dismiss the corresponding counts of the indictment.
38
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POINT Ill
PENAL LAW §235.22 IS UNCONSTITUTIONALLY
VAGUE AND MUST BE DECLARED VOID
One of the fundamental precepts of constitutional law is that
"[oJur Constitution is designed to maximize individual freedoms
within a framework of ordered liberty." Kolender v. Lawson, 461
U.S. 352, 357, 103 S.Ct. 1855, 1858 (1983). Restrictions on these
individual freedoms imposed by statute must have both a lawful
foundation and definiteness and certainty of expression. Id.
Accordingly, a law is unconstitutional if its provisions are so
vague and imprecise that persons of ordinary intelligence must guess
at its meaning and differ as to its application. Connally v. General
Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127 (1926); Coates
v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686 (1971); People v. Cruz,
48.N.Y.2d 419, 423 N.Y.S.2d 625 (1979). This rule stems from
the theory that an average person must be given a “reasonable
opportunity to know what is prohibited, so that he may act
accordingly." Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct.
2294, 2298-99 (1972); see also, Pro Choice Network v. Schenck,
67 F.3d 359 (2d Cir. 1994). To this end, nothing less than
"adequate warning of what the law requires" will do. People v.
New_York Trap Rock Corp., 57 N.Y.2d 371, 378, 456 N.Y.S.2d
711, 714 (1982); citing, People v. Cruz, 48 N.Y.2d 419, 424, 423
N.Y.S.2d 625, 627 (1979). Of tantamount importance is the
prevention of arbitrary and discriminatory enforcement. If arbitrary
and discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. Grayned v.
City of Rockford, 408 U.S. at 110, 92 S.Ct. at 2299 (1972); see
also, People v. Cruz, supra at 424. As the Supreme Court warned
in Kolender:
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Although the [void-for-vagueness] doctrine focuses
both on actual notice to citizens and arbitrary
enforcement, we have recognized recently that the
more important aspect of the vagueness doctrine "is
not actual notice, but the other Principal element of
the doctrine -- the requirement that a legislature
establish minimal guidelines to govern law
enforcement." Where the legislature fails to
Provide such minimal guidelines, a criminal statute
May permit "a standardless Sweep [that] allows
policemen, Prosecutors, and juries to pursue their
personal predilections.
Kolender v. Lawson, supra, at 357-58, 103 S.Ct. at 1858.
vagueness doctrine "demands a greater degree of specificity than in
other contexts.” Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct.
1242, 1247 (1974).
A. The Terms Purportedly Defining Luring
Conduct Are Unconstitutionally Vague.
A-90
For instance, a speaker is guilty of first degree
dissemination of indecent material to a minor when he uses a
computer to violate paragraph (1) of Penal Law §235.22 and, in the
same computer communication with a minor, “he importunes,
invites or induces a minor to engage in sexual intercourse... ."
Penal-Law §235.22(2). The phrase "importunes, invites or induces"
not only fails to provide adequate notice of what is prohibited, it also
permits arbitrary and discriminatory application of the law by both
law enforcement authorities and jurors called upon to interpret the
speech at issue. Indeed, the only other court which has reviewed the
constitutionality of Penal Law §235.22 came to the conclusion that
one of the statute's main deficiencies is vagueness:
Given the unique and pervasive nature of the
medium, together with the inherent vagueness of
the terms "importune," "invite" and "induce" and
the equally vague and far-reaching term "for his
benefit" used to describe elements of a crime which
requires action by a third person, it is apparent that
enforcement of Penal Law §235.22 affords the
opportunity to insidiously chill virtually ll
communication on the Internet related to sex,
whether protected by the First Amendment or not
and regardless of the ages of the discoursers.
People v. Barrows, __ Misc.2d __, 677 N.Y.S.2d 672, 686
(1998).
Significantly, in rejecting appellant's vagueness argument
and affirming his conviction, the Appellate Division did not address
the reasoning of the Barrows Court. The cogency of the Barrows
analysis cannot, however, be ignored. As that Court emphasized,
the expressive activity regulated by Penal Law §235.22 must be
judged in light of its unique nature as pure speech:
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A-9]
As reprehensible as Defendant's crime is, his actual
"conduct," as prohibited by the statute, amounts
only to speech in its purest form. The action which
the statute seeks to prevent is required to be taken,
not by the "speaker," but by the recipient of the
message.
People v. Barrows, supra at 685.
The reality of Internet communication is that messages
Carried across this communications web are both commercial and
non-commercial in nature. The non-commercial run the gamut from
e-mail and text paging to the creation and maintenance of web-sites
full of expressive material, both adult and non-adult in nature.
Among the myriad of Internet uses and activities available,
computer "conversations" in chat rooms are very popular. Indeed,
as noted in the 1997 American Libraries Association decision,
thousands of different chat rooms exist and are frequented by tens of
thousands of users. American Libraries Association v. Pataki, 969
F.Supp. 160, 166 (S.D.N.Y. 1997) (citations Omitted). Further, as
the trial testimony established, those Internet chat rooms allow
computer users to assume any persona they desire [996].
Consequently, role playing is prevalent and, as Internet expert Dr.
David Murphy explained, role playing in sex-related chat rooms is a
common form of Internet entertainment [524, 539-43, 548-50, 760).
Not surprisingly, therefore, an untold number of these
sex-related chat room conversations -- also known as "hot chats". --
involve fantasies. The danger of applying of Penal Law §235.22 as
it presently exists to such communications is obvious. Because the
Statute does not require that one charged with its violation have
knowledge thatthe recipient of the communication is a minor, there
exists the very real risk that individuals involved in sexually-related
42
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A-92
fantasy discussions in these chat rooms or through other modes of
computer-assisted communication may find themselves facing
prosecution for expressing sexual thoughts or desires which they
have no actual intention of ever fulfilling.
Because the act proscribed -- importuning, inviting or
inducing -- consists of pure speech without the necessity of proving
that the defendant took any overt steps to move the discussion from
fantasy to reality (i.e., entering New York State to meet with a
minor; making plane reservations; actually arranging transportation
for the minor; etc.), an unwitting communication with a minor or
with someone the speaker erroneously believes is an adult
role-playing as a minor exposes the speaker to criminal liability if a
law enforcement agent or trier-of-fact interprets the fantasy
discussion as an invitation to engage in proscribed sexual activity.
The crux of the dilemma is that a speaker using the Internet
or other computer medium to exchange graphic images of an sdult,
but not obscene, nature and to communicate sexually-oriented
thoughts, ideas or desires, not only runs the risk that the recipient of
the message in these unregulated chat rooms is a minor, but also
faces the reality that the vagueness of Penal Law §235.22 permits an
essentially standardless interpretation of the speaker's words by
police officers or jurors applying the broad language of the statute.
The language of the Internet is not simply that of
commercial business, contracts or law. Communications among the
many millions of people world-wide using the Internet concern a
variety of subjects "as diverse as human thought." Reno v.
American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329,
2334, 2344 (1997). Inevitably, many of those subjects relate to
human sexuality and eroticism. The strictures of Penal Law
§235.22 chill sexually-related expression by failing to give speakers
sufficient objective notice of what is prohibited and by permitting
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criminalization of pure speech through the varying and standardless
interpretive efforts of law enforcement officials and triers of fact.
While the goal of protecting minors from sexual predators
who use the Internet as a means of procuring actual sexual contact
with children is laudable, the broad brush used to paint those
predators threatens the entire canvas of lawful communication of
erotic ideas via the Internet, While it is unlawful to exploit children
through the creation, distribution Or possession of child pornography
in New York, it is not illegal to discuss sex or to engage in erotic
communication.
New York, however, has hung the threat of prosecution
over the heads of those whose erotic discussions on the Internet flow
through the State. It cannot be gainsaid that the communication of
ideas -- whether sexual or not “= Often involves apparent Statements
of fact. Whether one fantasizes about a romanticized notion of
marriage or an ideal vacation or a particular sexual circumstance,
when communicated to others such thoughts commonly take form as
statements or queries: "I'd love to. . ." or “Wouldn't it be great to
9"
Under New York law, however, assuming the requisites of
Penal Law §235.22(1) are met, if the speaker does not realize that
the often anonymous recipient of the communication is a minor or
erroneously believes -- as part of the fantasy aspect of the discussion
~- that the recipient is an adult pretending to be a minor, any
discussion of a desire to meet for purposes of sexual intimacy --
even if purely fantastical -- exposes the speaker to prosecution
should a police investigator choose to interpret the conversation as
evidence of criminal culpability,
Moreover, given the pervasiveness of the Internet today
and, in particular, the popularity of sex-related chat rooms, the
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threat that Penal Law §235.22 will be applied to lawful speech is
ever-present and, consequently, so is its chilling effect. Arguably,
construing the statute to require as an element proof of an overt act
tending to effectuate an invitation extended to a minor to engage in
proscribed sexual activity for his benefit would narrow the sweep of
the statute to prohibited conduct rather than mere speech, but such a
construction has not been rendered by New York State's appellate
courts. In the absence of such a limiting construction, New York
will continue to “burn the house to roast the pig." Sable
Communications of California, Inc. v. FCC, 492 U.S. 115, 127,
109 S.Ct. 2829 (1989).
Significantly, the Barrows Court did impose such a limiting
construction on Penal Law §235.22. There, it affirmed the
defendant's conviction under Count 8 of the indictment, noting that
the element was satisfied "when Defendant took the additional step
of tending to effect the reality of sexual conduct by meeting with
Tori in Brooklyn." People v. Barrows, supra at 685. As to Count 7
which alleged only that defendant Barrows induced Tori to
masturbate during cyberchat, however, the Court set aside the
verdict on grounds of both vagueness and a Commerce Clause
violation:
While such "conduct" would appear to satisfy
Paragraph 2 of Penal Law §235.22, given the
nature of the Internet, in most cases, the proof that
such activity actually took place would be limited to
the testimony of the recipient of the transmission.
Generally, as was the case with Tori 83, such
Suggestions are likely to be “mere words"
unaccompanied by any overt or provable acts. In
those instances in which physical acts have
occurred, either in the presence of or with the
participation of the Internet speaker, other criminal
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laws are available as an appropriate sanction. To
the extent that such communications are practically
limited to pure speech, this Court finds they fall
within the parameters of Reno in that, both as
applied to the particular facts of this case and in
light of the nature of the Internet, the statute is
unconstitutionally vague in also chilling
First-Amendment-protected communications
between adults via the Internet. To the extent that
such communications involve interstate
transmissions, Penal Law §235.22 also violates the
Commerce Clause.
Barrows drew the appropriate and definite line between
protected speech and proscribed conduct. Requiring that the trier of
fact find as an element of Penal Law §235.22 some overt act
designed to effectuate the reality of sexual conduct with a minor
removes the suspect communication from the realm of "pure
speech” protected by First Amendment guarantees and places it into
the category of prohibited "conduct."
Penal Law §235.22 is unconstitutionally vague on its face,
warranting reversal of appellant’s conviction. Furthermore, even
Judged in light of the Proposed narrowing construction, appellant’s
actions amounted to pure protected speech, not proscribable
conduct. Accordingly, appellant’s conviction should be reversed
and the indictment dismissed or, in the alternative, a new trial
Should be ordered before a jury properly instructed as to the
required narrowing element.
A-96
B. The “Sexual Conduct for His Benefit”
Element of Penal Law §235.22(2) is
Also Unconstitutionally Vague.
Penal Law §235.22(2) prohibits a speaker from using
described computer communications to “lure” a minor into
engaging in “sexual conduct for his benefit.” While “sexual
conduct” is defined by Penal Law §235.20(3) as “acts of
masturbation, homosexuality, sexual intercourse, or physical contact
with a person’s clothed or unclothed genitals, pubic area, buttocks
or, if the person be a female, breast, the addition of the phrase “for
his benefit” in the context of the computer communications intended
to be regulated renders the term as a whole vague.
In the instant case, the People argued to the jury that
appellant was guilty of disseminating indecent material to minors in
the first degree because he encouraged the fictional “Aimee” to
masturbate during an on-line typed chat discussions [1260-61]. Of
course, no masturbation occurred because “Aimee” was a character
whose role in this Internet fantasy discussion was played by Trooper
Mark Williams.
The phrase "for his benefit" is inherently vague, a fact noted
by the Barrows Court in ruling Penal Law §235.22 unconstitutional
on that ground. Indeed, as noted above, a charge of inducement of
a minor to masturbate during a cyberchat was also leveled against
defendant Barrows. In vacating the verdict against Barrows on that
count of the indictment, the Barrows Court observed that, in the
context of the Internet discussions the statute was meant to regulate,
"such suggestions are likely to be 'mere words,’ unaccompanied by
any overt or provable acts." People v. Barrows, supra at 685.
Further noting that other criminal laws are available to address those
situations where prohibited physical acts have occurred in the
presence of or with the participation of the Internet speaker (i.e., the
A-97 ea
Tape, sodomy, sexual abuse laws, etc.), the Barrows Court
concluded that to the extent that the communication alleged as an
inducement to "sexual conduct for his benefit” is limited to pure
speech, Penal Law §235.22 is unconstitutionally vague.
The point of the Barrows decision is well taken. In the
absence of an overt act beyond the "mere words" used in the
communication, the law enforcement agent or juror is left to
evaluate pure speech without the ability to apply specific and
objective standards in order to distinguish between a bona fide
attempt to lure a minor into masturbation for the speaker's benefit
(for example, at a physical meeting where the minor exposes his or
her genitals to the speaker and. masturbates for his pleasure) and
simple fantasy talk where the speaker has no real intention of ever
taking steps to meet the minor, which obviously is the ultimate goal
of "luring."
Furthermore, although "sexual conduct" js defined by
Statute, Penal Law §235.22(2) gives no notice that its provisions
would criminalize an invitation to a minor to masturbate outside of
the presence of the speaker during a cyberchat consisting of
non-verbal, typed communication. Indeed, review of the proscribed
sexual activities delineated in paragraph 2 suggests leads that Penal
Law §235.22 was intended to prohibit only computer
communications intended to seduce a minor into the physical
presence of the speaker for consummation of a sexual act or to
engage in a sexual performance (play, motion picture, photograph
or dance; Penal Law §263.15) for the speaker. The standardless
discretion afforded police, prosecutors and juries by this statute,
however, allows for the pursuit of "personal predilections" -- in this
case the inclination to punish appellant's speech insofar as it could
be interpreted as an encouragement of on-line masturbation by the
fictional character "Aimee." Even though Penal Law §235.22
would not appear to be directed at regulating such a phenomenon,
48
A-98
the imprecision of the terms used in the statute permits arbitrary and
discriminatory enforcement of the law because it does not contain
the minimal objective guidelines necessary to prevent the
"standardless sweep" which is the hallmark of unconstitutionally
vague statutes. See, Kolender v. Lawson, supra.
Accordingly, appellant respectfully requests that this Court
enter an order reversing appellant's conviction under Penal Law
§§110/235.22 and dismissing the indictment.
POINT IV
PENAL LAW §235.22 ISA
CONTENT-BASED RESTRICTION ON SPEECH
WHICH CANNOT SURVIVE STRICT SCRUTINY
Penal Law §235.22 proscribes certain sexually-oriented
communications with minors and imposes criminal sanctions upon
speakers who violate its provisions. Appellant submits that the
Statute is a content-based restriction on expression which cannot
survive strict scrutiny because the limitations imposed on protected
speech are far too broad for the limited purpose of the legislation.
Accordingly, the Appellate Division's decision finding Penal Law
§235.22 to be a precisely drawn means of serving a compelling
government interest should be reversed.
The first step in any analysis concerning the propriety of —
government regulation of protected speech is to determine whether
the restriction involved is based on the content of the regulated
speech or is content neutral. In other words, when a government
regulation burdens protected speech, an analysis must be conducted
to determine whether it does so because of disagreement with the
content of the regulated speech or merely incidentally while serving
A-99
purposes unrelated to the content of expression. Boos v. Barry, 485
U.S. 312, 320-21, 108 S.Ct. 1157, 1163 (1988).
Content-based speech restrictions are presumptively invalid
and will not survive the applicable strict scrutiny analysis unless the -
government meets its heavy burden of establishing (1) that the
regulation promotes a compelling state interest, and (2) that the
government chose the least restrictive means to further the
articulated interest. Sable Communications of California, Inc. v.
FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836 (1989); see also,
ourts consider essentially
censorship claim. Time
the same factors when reviewing a content
Square Books v. City of Rochester, 223 A.D.2d 270, 275, 645
N.Y.S.2d 951, 955 (4th Dept. 1996) (citation omitted) ["Under the
State Constitution, like the Federal Constitution, government
regulation of speech that is aimed at the message conveyed must
clear a high hurdle to withstand challenge. ‘Generally speaking, if
the regulation is content-based it is presumptively invalid and
therefore subject to strict Scrutiny'"]. However, the degree of
speech protection available under the New York State Constitution is
greater than that afforded under the Federal Constitution. As the
Court of Appeals has explained, "New York's Free Speech Clause
is embodied in article I, section 8. It contains language that is more
more protective of free expression
Federal Constitution. " Children of
N.Y.2d 713, 731, 570 N.Y.S.2d
453, 463 (1991) (citations omitted).
In the instant case, Penal Law §235.22 prohibits certain
communications between speakers based on the content of the
message conveyed and the status of one or more of the participants
aS a minor. The statute unmistakably restricts computer
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communications with minors on the basis of the content of the
communication (whether it depicts actual or simulated nudity, sexual
conduct or sado-masochistic abuse, and which is harmful to minors).
As noted in the Governor's Memorandum accompanying approval
of the legislation, the central purpose of Penal Law §235.22 is
prevention of the dissemination of indecent materials to minors.
See, Governor's Memorandum on Approving L. 1996, c. 600
(September 4,-1996). Just as in Reno v. American Civil Liberties
Union, supra, this constitutes regulation of speech based on its
message and cannot be considered content neutral. Therefore, as
the Appellate Division correctly concluded, the Legislature's attempt
to protect minors from the direct effects of sexually-oriented
expression thus triggers strict scrutiny review.
Protecting the welfare of minors has been recognized as an
important government interest. Reno v. American Civil Liberties
Union, supra. Appellant does not dispute the validity of the
government concern in this general regard, but does question the
constitutional propriety of the scope of the speech restrictions
imposed by Penal Law §235.22 in relation to its purported objective:
prevention of sexual contact between minors and computer
pedophiles. The Legislature's failure to employ the least restrictive
means of regulating the content of speech in pursuit of its goals
requires invalidation of this law.
As discussed in the preceding points, the overbreadth of
Penal Law §235.22 is clear and substantial. In the hopes of
addressing an important but narrow concern, the Legislature enacted
sweeping speech restrictions which quell lawful sexually-oriented
speech between adults both within New York and throughout the
country. The mere existence of the statute will dissuade adult
Internet speakers from engaging in constitutionally protected
expression -- which includes even fantasy discussions in Internet
chat rooms.
51
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Incorporation of the "luring" element does not save Penal
Law §235.22. Far from proscribing mere "conduct" (see, People v.
Barrows, 174 Misc.2d 367, 664 N.Y.S.2d 410 [Kings Co. 1997]),
the statute criminalizes mere speech which can be interpreted as an
invitation to a minor to engage in the delineated sexual contact or
sexual conduct. People v. Barrows, 677 N.Y.S.2d 672 (1998).
Although the defendant in Barrows may indeed have engaged in
substantial and provable physical conduct to facilitate his actual
meeting with the purported minor (which included traveling to the
agreed upon meeting place and asking for the minor), the fact
remains that Penal Law §235.22 Proscribes the mere utterance of
words which may be construed as an invitation to engage in certain
sexual activity -- even if the speaker does not know that he is
communicating with a minor.
Moreover, the Legislature could have accomplished its goal
in a much less speech restrictive way. For example, the inclusion of
a scienter element with respect to the recipient's status as a minor
would at least narrow the breadth of expression regulated to only
those speakers who knowingly communicated with a minor,
although it would not cure the deficiencies noted by the Supreme
Court in Reno with respect to the practical inability of
non-commercial speakers to avail themselves of the affirmative
defenses set forth in the Communications Decency Act, which are
similar to the defenses provided for in Penal Law §235.23(3).
Further, other laws are presently on the books which would
allow the prosecution of pedophilic activity without the burdens on
protected expression imposed by Penal Law §235.22. Rather than
criminalizing speech, unlawful sexual activity -- or actual attempts
thereat -- can be prosecuted under the Same terms applicable to such
activity which occurs without the involvement of computer
communication. Just as an individual who, either in person or
through the use of a telephone, importunes a minor to engage in
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prohibited sexual activity and then takes steps to follow through on
the inducement to culmination of the activity may face prosecution
for various crimes ranging from endangerment to actual or
attempted rape, sodomy or sexual abuse (depending on the degree of
overt action taken), so too may a perpetrator who uses the Internet
to communicate with a minor and then takes action to consummate
illicit sexual relations be prosecuted.
The overbreadth of Penal Law §235.22 also creates a rather
incongruous situation with respect to computer communications
between juveniles and young adults. Penal Law §130.55 (Sexual
Abuse in the Third Degree) exempts from prosecution consensual
sexual contact between an individual more than fourteen years old
and a defendant who is less than five years older than the individual
where such sexual contact would otherwise have been deemed
non-consensual and criminal by virtue of the individual being less
than seventeen years old. Penal Law §235.22, however, would
criminalize as a D felony an eighteen year old's attempt to arrange
sexual contact with his sixteen year old girlfriend if it occurred
during a computer communication with her wherein he also
transmitted a sexually explicit image which, although not obscene by
adult standards, would be considered obscene with respect to what
the adult community thinks is suitable for minors (see, Penal Law
§235.20[6])). Thus, while actual consensual sexual contact would
not be criminal if arranged in person or over the telephone, merely
inviting such contact during a computer communication involving
the transmission of an image depicting similar sexual contact
between adults could subject that eighteen year old to a felony
conviction and imprisonment.
Indeed, under these circumstances, Penal Law §235.22
imposes upon that eighteen year old the same degree of criminal
liability attributed to adults who have actual sexual contact with
children less than eleven years old or adults who forcibly compel
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others to have actual sexual contact (see, Penal Law §130.65
[Sexual Abuse in the First Degree]), even though the
computer-using defendant need never have any actual sexual contact
with another person and may never do more than communicate a
desire to engage in sexual contact. In fact, if the ei
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