# Appendix — Foley v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1190%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2000 - **Citation:** 531 U.S. 875 ## Text 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 Big hh ot CLS PREP Ba) D0 Defendant-Appellant. ONEIDA COUNTY ONEIDA COUNTY INDICTMENT NO. 97-158 INDEX NO. CR 97-224 APPELLATE DIVISION, FOURTH DEPARTMENT DOCKET NO. KA 98-2083 BRIEF FOR PLAINTIFF-RESPONDENT MICHAEL A. ARCURI, ESQ. Oneida County District Attorney Oneida County Court House Elizabeth Street Utica, New York 13501 315/798-5766 DATE: DECEMBER 16, 1999 WILLIAM M. WEBER, ESQ. Assistant District Attorney Of Counsel A-122 TABLE OF CONTENTS Table of Citations Statement of Facts Point | Point Il 0 > C D. E. F. G. H. Introduction The First Chat Session - October 28, 1996 The Second Chat Session - November 12, 1996 The Third Chat Session - November 15, 1996 The Fourth Chat Session - November 20, 1996 The Fifth Chat Session - November 22, 1996 Arrest-& Confession Indictment & Trial Penal Law § 235.22 Is Not Impermissibly Overbroad In Violation Of Any Of The Provisions Of The Federal Or State Constitutions A. B. Introduction Penal Law § 235.22 Is Not Impermissibly Overbroad Penal Law § 235.22 Does Not Violate The Commerce Clause Of The Federal Constitution 17 17 26 Point III Point IV A-123 Introduction Penal Law § 235.22 Is Not Intended To Regulate Commerce The Protection Of Children From Pedophiles Is A Legitimate Local Interest American Libraries Association v. Pataki The Local Benefit of Penal Law § 235.22 Outweighs the Incidental Impact on Interstate Commerce There Is No Extraterritorial Application Of Penal Law § 235.22 Penal Law § 235.22 Does Not Interfere With Uniform National Treatment of the Internet Penal Law § 235.22 Is Not Unconstitutionally Vague Penal Law § 235.22 Is Not An impermissible Regulation Of Free Speech A. B. Penal Law § 235.22 Regulates Conduct Penal Law § 235.22 Is A "Content-Neutral" Regulation Of Free Speech 1. Penal Law § 235.22 Is A Time, Place And Manner Regulation Penal Law § 235.22 Serves A Substantial Governmental 26 27 33 36 28 38 39 41 Point V Point VI Point VII Point VIII Conclusion A-124 D. Even If Penal Law § 235-22 Is Content-Based, the Statute Is A Precisely Drawn Means Of Serving A Compelling State Interest And Is No Broader Than Necessary The Constitutionality Of Penal Law § 263.15 Has Been Upheld By The United States Supreme Court And The New York State Court Of Appeals Defendant's Convictions For Promoting The Sexual Performance Of A Child In Violation of Penal Law § 263.15 Are Supported By Sufficient Evidence And Are Not Against The Weight Of The Evidence_ The Trial Court Did Not Improperly Restrict Defendant's Right To Cross-Examination The Prosecution Established An Adequate Chain Of Custody 43 46 50 53 56 A-125 TABLE OF CITATIONS UNITED STATES SUPREME COURT Boos v Barry, 485 US 312 (1988) 39 Broadrick v Oklahoma, 413 US 601 (1973) 20 Gibbons v Ogden, 22 US 1 (1824) 26 Ginsberg v New York, 390 US 29 (1968) 17, 28, 43 Globe Newspaper Co. v Superior Court, 457 US 596 (1982) 17, 28, 43 Members of City Council v Taxpayers for Vincent, 466 US 789 24, 25 Miller v California, 413 US 15 (1973) 18, 34, 37 New York v Ferber, 458 US 747 (1982) 17, 20, 25, 28 29, 42, 43, 45 Philadelphia v New Jersey, 437 US 617 (1978) 26, 27 Pike v Bruce Church, Inc., 397 US 137 (1970) 26, 27, 29 Reno v American Civil Liberties Union, 521 US 844 (1997) 17, 18, 28, 42 Renton v Playtime Theatres, Inc.., 475 US 41 (1986) 39, 40, 43 Secretary of State of Md. v Munson Co., 467 US 947 24 FEDERAL DISTRICT COURT American Libraries Association v Pataki, 969 FSupp 160 (SDNY, 1997) 29, 30, 43 NEW YORK STATE COURT OF APPEALS Chemical Specialties Manufacturers Association v Jorling, 85 NY2d 382 (1 995) Children of Bedford, Inc. v Petromelis, 77 NY2d 713 (1991) A-126 People v Benzinger, 36 NY2d 29 (1974) 46 People v Clarke, 81 NY2d 777 (1993) 53 People v Contes, 60 NY2d 620 (1983) 46 People v Ferber, 57 NY2d 256 (1982) 45 People v Freeland, 36 NY2d 518 52 People v Hollman, 68 NY2d 202 24, 25 People v Julian, 41 NY2d 340 (1977) 54 People v Kennedy, 47 NY2d 196 (1979) 46 People v Lipsky, 52 NY2d 560 (1982) 46 People v Walker, 83 NY2d 445 (1994) 50 Pharmaceutical Manufacturers Association v Whalen, 54 NY2d 486 (1981) 31 NEW YORK STATE SUPREME COURT, APPELLATE DIVISION People v Foley, 257 AD2d 249 (4" Dept 1999) 24, 25, 30 34, 37, 43 49, 51, 52, 54 People v Miller, 242 AD2d 8 96 (4" Dept 1997) 54 People v Montgomery, 195 AD2d 886 (3 Dept 1993) $293 People v Newman, 129 AD2d 742 (2™ Dept 1987) 54 People v Perotti, 233 AD2d 936, lv denied 89 NY2d 945 52 People v Sarmiento, 168 AD2d 328 (1st Dept 1990), affd 77 NY2d 976 (1991) 54 People v Starks, 236 AD2d 621 (1* Dept 1997) 50 People v Van Nostrad, 217 AD2d 800, lv denied 87 NY2d 851 52 People v Vigo, 170 AD2d 192 (1* Dept 1991) 48 People v Waite, 243 AD2d 820 (3™ Dept 1997) 54 A-127 STATEMENT OF FACTS A. Introduction. In June of 1996, the New York State Police established a Computer Crime Unit at their barracks located in Marcy, New York (R489-490). The purpose of the unit was to investigate computer crimes, including the transmission of child pornography over the internet and the contacting of children over the internet for the purposes of sexual abuse (R490). The unit initially consisted of one police officer, Trooper Mark Williams, and a computer with a modem (R490-491). Trooper Williams used the computer and its modem to access the internet and conduct his investigations (R491). Trooper Williams initially Spent several months observing what was occurring in the chat rooms" on the internet (R494-495). By means of a process called "Internet Relay Chat" (hereafter IRC), individuals can "chat" with other internet users in real time by typing at their keyboards. Each "chat room" has a name indicative of the topic of conversation going on in the room. Trooper Williams observed the chats going on in rooms with names like "Kids of Family Sex", "Daddy/Daughter Sex", and "Preteen Fuck Pies". His purpose was to learn the language of these people so that he could communicate with them on their level and so that he would not be recognized as a police officer (R494-495). During his investigation, Trooper Williams used a program called "MIRC" (R496-497). Using this program, in addition to chatting with a group of people by means of IRC, Trooper Williams could also communicate privately with an individual by means of a process called "Direct Connection Chat" (hereafter DCC) (R497). Further, by means of MIRC, or a similar program, it is possible to send to someone with whom you are chatting a computer graphic file. Typically, computer graphic files exchanged via the intemet are in either "jpg" or “gif” format A-128 (R503-504). In addition, using MIRC an exact transcription of a chat can be saved as a text file. This called a "chat log" (R504-505). Trooper Williams also had purchased and used a program called "SnagIt". This program allowed him to take a "digital snapshot" of whatever was on his screen at any given time (R505-506). Trooper Williams stored all the evidence he collected during his investigations-that is, jpg or gif files, chat logs, SnagIt images-on a "Zip" disk, a removable 3V2 inch disk capable of storing approximately 100 megabytes of data (R506-507). B. The First Chat Session - October 28, 1996. On October 28, 1996, Trooper Williams logged onto the internet and began an IRC session using the screen name of "aimee " (R507-508). "Aimee_" entered a chat room with the title "Kids of Family Sex" and noticed that there were several individuals in the room (R509). One of the individuals in the chat room was defendant using the screen name of "JustMee" (R509, 918, People's Ex. 61). Defendant and "aimee_" engaged in a conversation that lasted a couple of hours (R509-510). Trooper Williams kept a log of the chat session (R514, 518-530, People's Exh. 2). (All the times listed below refer to the times indicated on People's Exhibit 2.) The chat session began at 23:27 by defendant stating to "aimee_", "WEana [sic] chat sex?" Early in the chat, at 23:47, "aimee_" identified herself as a 15 year old female who had had sex with her father (R519). The chat was almost exclusively about Sex. During the chat session, defendant turned the conversation towards meeting with "aimee_" for the purpose of having sex. At A-129 0:44, defendant asked, "NO, IM 5 1, is that too old for you?" (R523). At 1: 19, defendant Stated, "Would you like to know how I would have sex with you?" (R526). Defendant then described how he would have sex with "aimee_" (R526527). At 2:07, defendant asked, "Could you try an older man?“ (R530). At 2:08, defendant followed up the question with, "But whats the chance of you meeting one you have sex with?" (R530). During the chat session, defendant encouraged "aimee " to masturbate. At 23:5 1, defendant asked, "Do you masturbate?" (R519). At 0: 19, defendant asked, "What do you masturbate over?" (R521). At 0:20, defendant asked, "Would you like some pic's to masturbate over?" (R521). At 0:23, defendant asked, "Are you going to masturbate tonight?" (R522). At 0:43, defendant asked, "RU rubbing your clit?" (R523). During the chat session, defendant transmitted to "aimee_" twenty-nine (29) computer graphic files depicting persons engaged in sexual activity (R546-565, People's Exhs. 5-33). Many of these images depicted children under sixteen years of age engaged in sexual activity (R720-726, People's Exhs. 5, 8, 10, 15, 17, 18, 19, 21, 22, 23, 24, 26, 27, 29, 30, 31 and 32). Defendant initiated the conversation about pictures or "pics." At 0:06, defendant asked, "Do you have any pics?" (R520). At 0: 17, defendant asked, "Hey have you seen pic's of couples having sex?" (R521). At 0:20, he asked, "Would you like some pic's to masturbate over?" (R521), and at 0:21, Stated, "I'll send some preteen fucking pic's, OKT' (R521). While sending the pictures, defendant commented on the substance of the images, demonstrating that he was fully aware of their character and content. At 0:23, defendant stated, "Here are a few preteen girls and men" (R521-522). At 0:36, he Stated, "This one is a 10 yr old girl on a man" (R522) and at 0:39, stated, "This one is a 12 yr old girl on an older man" (R523). A-130 The chat session ended at about 2:14 a.m. on October 29, 1996, with both parties indicating that they would stay in touch (R530). c. The Second Chat Session November 12, 1996. On November 12,1996, Trooper Williams once again logged onto the internet and started an IRC session using the screen name of "aimee_" (R567-570). Trooper Williams had added the screen name "JustMee" to his notify list and, after logging on, observed that defendant was also logged on (R566-567). The chat that ensued did not occur in a chat room, but was a Direct Connection Chat (DCQ. Trooper Williams kept a log of this chat session (R570, 573-602, People's Ex. 34). ~ (All the times listed below refer to the times indicated on People's Exhibit 34.) The chat session began at about 23:07 by "“aimee_" stating, "Hl!" (R573). Very early in the chat "almee_" reiterated that she was 15 years old. At 23:15, defendant asked, "Your 157 (R574). "Aimee_" responded, "hey u remembered that right:-)" (R574). After getting reacquainted, a several hour chat followed that was once again almost exclusively about sex. Once again, defendant turned the conversation towards meeting with "aimee_" for the purposes of having sex. At 23:40, defendant asked, "Im 51. Would you do it with me if we met?" (R578). At 23:41, defendant asked, "Would you like me on top or would you like to be on top?" (R579). At 23:44, he asked, "Id like to do it in a car and have someone watching. Would you mind?" (R579) and at 23:56, stated, "Id like to have you wear the stirup pants and I the same and dry fuck!!" (R581). At 0:00, defendant stated, "I know we could have some very good times:))" (R58 1) and at 0: 17, stated, "Id Love to make long passionate love to yout!!!" (R583). And so on, ad nauseum. 10 A-131 Later, defendant began asking "aimee_" about coming to the Buffalo area to meet with him for sex. At 1:25, defendant stated, "I wish you could cum to the falls" and Id love to make out with you" (R592). At 1:27, defendant asked, "have any plans to come this way?" (R593). Thereafter, a discussion ensued regarding how "aimee_" could get a ride to Buffalo and regarding exactly where defendant lived in the Buffalo area (R592-593). No definite plans were made, however. As in the first chat session, defendant encouraged "aimee_" to masturbate. At 23:37, defendant asked, "How much do you masturbate?" (R578). At 23:39, defendant stated, "Yep your safer masturbating” (R578). At 0:30, defendant asked, "How do you masturbate?" (R585). At 0:56, he asked, “Are you masturbating?" (R588) and at 1:42, asked, "Did you orgasm to night [sic] yet?" (R595). During this chat session, defendant transmitted only one computer graphic file to "aimee_" (R610-61 1, People's Exh. 37). This was an image that defendant mistakenly believed was "aimee_" (R590-591). Defendant indicated that he was aware of the character and content of the file by stating, at 1:08, "1 really think he sent me your pic blowing him while he ate you" (R590). Because defendant believed that "aimee _" was only fifteen years old, that means he believed the girl depicted in the image was the same age. This second chat session ended at about 2:27 a.m. on November 13, 1996, with both parties, once again, indicating that they would stay in touch (R602). D. The Third Chat Session -November 15,1996. On November 15, 1996, Trooper Williams once again logged onto the internet and began an IRC session using the screen name of "aimee_" (R614-616). On this occasion, defendant, using “the 11 A-132 screen name of "Justmee", contacted "aimee_" by Direct Connection Chat (DCC). Trooper Williams kept a log of this chat session (R615, 616-633, People's Exh. 41). (All the times listed below refer to the times indicated on People's Exhibit 41.) The chat session began at about 20:28 by defendant conversation to sex by asking, "Have any sex in the past two days?" (R617). When "aimee_" did not respond, defendant persisted by asking: "Hey, how's sex lately??" (R617). Defendant followed that question with, "Hey lets talk about what we like or turns us on? OKT' (R617). What followed was, once again, a two hour conversation almost exclusively about sex. Please note that during this chat Trooper Williams reiterated that "aimee_" was only fifteen years old. At 20:52, "aimee_" stated, "that was bout [sic] 9 months ago" and "I ns oy then" (R620). Once again, defendant continued to discuss meeting with "aimee_" for the purposes of having sex. At 20:40, defendant stated, "Id like to go to a parking area and have you feel me with a girl watching in her car" (R618). Defendant began to describe in detail his location to "aimee_." At 20:58, defendant asked, "Did you ever go to the Falls?" (R621). After "aimee_" indicated that she had been to the falls, defendant explained, "You went over two bridges before the Falls, I live near the first one" (R621). After "aimee”’s response indicated that she had misunderstood, defendant stated, "No [sic] on the 1190 you went over two bridges just before the [sic] falls" (R621). At 21:01, defendant stated, "The first time you crossed the river" and "That's whereirn [sic] at" (R621). 12 A-133 Later in the chat session, the defendant began to talk about making plans to actually meet with "aimee_". At 21:50, defendant Stated, "I wish we could meet. I know we could have a good time" (R626). At 21:51, defendant stated, Id [sic] love to have you stradle me facind me in a car and french kiss" (R627). Noting the need for secrecy, at 21:5 1, defendant stated, "We woul [sic] have to be very care full" (R627). At 21:52, defendant said, "Who would you come here with?" and "We would hav eto [sic] meet some place" (R627). After Trooper Williams indicated that “aimee_" had cousins in Buffalo, at 21:53, defendant asked, "Yes butwould [sic] they keep a secret?" (R627). At 21:54, defendant said, "Where do the [sic] live in Buffalo?" and "We would have to make prearrangements" (R627). Although no computer graphic files were transmitted by defendant to "aimee_" during this chat session, defendant did discuss some of the previously sent files with "aimee_", thereby demonstrating his awareness of their character and content. At 22:06, "aimee_" stated, "i was just looking at some of those pics u sent while back" (R629). At 22:07, defendant asked, "Whats your favorite?" (R629). At 22:07, “‘aimee_" answered, "i like yngl jpg and daddycjpg" (R629, People's Exhs. 30 and 27). At 22:10, defendant commented, "I think the girl looks like 10. What do you think?"(R629). At 22:13, defendant commented, "I did'nt [sic] know a girl that young and small could take a hard on that bigso [sic] deep" (R630). At 22:15, defendant stated, "gl [sic] have some that the boy and girl are 10 or younger" (R630). During this chat, defendant revealed the true danger that he posed to children, if it were not already readily apparent. At 21:41, the following exchange occurred: [21:41] i lik eyoun [sic] girls how young would you go [21:42] Im not on incest now 13 A-134 [21:42] 10 [21:42] if she was good looking (R626). The third chat session ended at about 22:42 p.m. on November 15, 1996, with both parties promising to stay in touch (R633). E. The Fourth Chat Session November 20, 1996. On November 20,1996, Trooper Williams once again logged onto the internet and began an IRC session using the screen name of "aimee_" (R650-651). On this occasion, defendant, using the screen name of "JustMee", contacted "aimee_" by Direct Connection Chat (DCC). Trooper Williams kept a log of this chat session (R651, 653-669, People's Exh. 44). (All the times listed below refer to the times indicated on People's Exhibit 44) The chat session began at about 23:01 by defendant stating, "Hi!!" (R653). At 23:09, defendant turned the conversation to sex by asking, "Well did you get a chance to masturbate?" (R654). What followed was, once again, a two hour conversation almost exclusively about sex. During the chat session, the fact that "aimee_" was only fifteen years old was once again made clear. At 0:04, the defendant asked, "you turn 16 next summer?" (R661). "Aimee _" responded, "yep" (R661). During this session, defendant continued to discuss meeting with "aimee" for sex. At 0:25, defendant stated, "If we ever meet. Id like to see you in stirup pants or legings" (R664). At 0:30, defendant asked, "Do you think if we met, we could fool around asnd [sic] she would'nt mind being in the same car?" 14 A-135 (R664). At 0:32, defendant Stated, "If we should ever meet, | would like you to be very vocal. Guys like to know when a girl feels good down there" (R664). At 0:35, defendant Stated, "We would hav eto [sic] meet at night at a parking area" (R665). At 0:36, defendant stated, "We would have to make arangements ahear [sic] of time" (R665). At 0:40, defendant asked, "Do you think your cousin would mind if I touched you both?" (R666). At 0:45, defendant stated, "If we ever meet don't beafraid [sic] to put your hand between my legs" (R666). Defendant and "aimee_" actually began to discuss meeting over Thanksgiving weekend, which was the upcoming weekend. At 0:44, "aimee_" asked, "want me to see when i can come out, — maybe over holidays to stay with her" (R666). At 0:46, defendant responded, "Yes, Thanksgiving day week end" (R666-667). At 0:49, defendant stated, "I'll try real hard to meet you but don't be mad if something goes wrong. OK/" (R667). During this chat session, defendant continued to encourage “aimee_" to masturbate. At 23:09, defendant asked, "Well did you get a chance to masturbate?" (R654). At 23:29, defendant asked, "Have you ever used a vibrator or dildo?" and "Do you ever put anything into your vagina?" (R656-657). At 0:50, he asked, "Hey when did you masturbate last?" (R667). During the chat session, defendant transmitted to "aimee _" three (3) computer graphic files depicting persons engaged in sexual activity (R670-675, People's Exh. 47-49). All three files depicted children engaged in sexual activity (R726). Defendant initiated the conversation about pictures or "pics." At 23: 10, after asking "aimee_" if she had had a chance to masturbate, defendant asked, "What pics did you look at?" (R654). At 23:12, the following exchange occurred: 15 A-136 [23:12] oooohhh!!! Bonner [sic] city!!! [23:13] Check these out neat thanks how long did it take ya to get all these [23:14] These are very young kids doing it (R654). Defendant's statement at 23:14, above, indicates that he was aware of the character and content of the files. In addition, at 0:39, defendant asked, "Did you like those new pics/" (R666). At 0:40, defendant followed with, "They are very young, arnt [sic] they?" (R666). This chat session ended at about 1:03 a.m. on November 21, 1996, with both parties indicating that they would Stay in touch (R669). F. The Fifth Chat Session November 22,1996. On November 22, 1996, Trooper Williams once again logged onto the internet and began an IRC session using the screen name "Aimee_" (R687-689). On this occasion, however, Trooper Williams had set up his computer in the State Police Barracks in Lewiston, New York, which was within a few miles of the defendant's residence on Grand Island, New York (R688-689). While Trooper Williams engaged defendant in an online chat, other members of the State Police executed a search warrant upon defendant's home and caught him "red-handed" at his keyboard (R692, 853-858). G. Arrest & Confession. Defendant was arrested at his residence and transported to the nearby Lewiston State Police Barracks for questioning (R859-864). Once there, defendant gave to Investigator Robyn Cadwell a written confession wherein he admitted that he was the person named “JustMee" who had been chatting with "aimee" for the last several weeks; that during that 16 a a ST ee 1 iH oT ee a OTe A-137 time he had sent "aimee_" computer graphic files of children engaged in sexual activity; that he believed that "aimee_" was fifteen years old; and that he chatted with "aimee about her coming out to Buffalo to meet him (R915-921, People's Exh. 61). H. Indictment & Trial. For his actions described above, defendant was indicted by the Grand Jury of Oneida County on May 8, 1997. By Oneida County Indictment No. 97-158, defendant was charged with three (3) counts of Promoting an Obscene Sexual Performance by a Child in violation of Penal Law § 263. 10: three (3) counts of Promoting a Sexual Performance by a Child in violation of Penal Law § 263.15: two (2) counts of Attempted Disseminating Indecent Material to Minors in the First Degree in violation of Penal Law §§ 110.00 & 235.22; and three (3) counts of Obscenity in the Third Degree in violation of Penal Law § 235.05(1). The trial of this matter was scheduled to begin on November 18, 1997. At that time, the People dismissed the Promoting an Obscene Sexual Performance charges and the Obscenity charges to eliminate the unnecessary "obscenity" issue from the trial. Therefore, the trial only dealt with five charges: three counts of Promoting a Sexual Performance by a Child in violation of Penal Law § 263.15, and two (2) counts of Attempted Disseminating Indecent Material to Minors in the First Degree in violation of Penal Law §§ 110.00 & 235.22. At the conclusion of the trial, the jury convicted defendant of four of the five counts presented. Defendant was found guilty of two (2) counts of Promoting a Sexual Performance by a Child in violation of Penal Law § 263.15, and two (2) counts of Attempted Disseminating Indecent Material to Minors in the First Degree in violation of Penal Law § § I 10. 00 & 23 3.22. 17 A-138 On January 20, 1998, defendant was sentenced to serve two to six years in state prison for each Promoting a Sexual Performance by a Child conviction and one to three years in state prison for each Attempted Disseminating Indecent Material to Minors in the First Degree conviction. All the sentences were imposed concurrently. The Appellate Division, Fourth Department, by decision dated June 18, 1999, unanimously affirmed the defendant's convictions. It is from the above judgment of conviction and sentence, and the above decision of the Appellate Division, Fourth Department, that defendant now appeals. POINT I PENAL LAW §235.22 IS NOT IMPERMISSIBLY OVERBROAD IN VIOLATION OF ANY OF THE PROVISIONS OF THE FEDERAL OR STATE CONSTITUTIONS A. Introduction. It is well settled that the state has a special interest in protecting the well-being of its youth (Ginsberg v New York, 390 US 629, 640 [1968]; New York v Ferber, 458 US 747, 776 [1982]). The United States Supreme Court most recently reiterated this principle in Reno v American Civil Liberties Union (521 US 844 [1997]) stating, "It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials." Further, the Supreme Court has recognized that a State's interest in safeguarding the physical and psychological well-being of a minor is a compelling one (Globe Newspaper Co. v 18 A-139 Superior Court, 45 7 US 5 96, 607 [1982]; New York v Ferber, supra at 776). In 1996, New York enacted Penal Law § 235.22 which was entitled Disseminating Indecent Material to Minors in the First Degree. In the approval memorandum, Governor Pataki Stated, "Protecting our children from pedophiles and those disseminating indecent materials to children, however, requires the active intervention of the criminal law, not passive r eliance on technology or even the vigilance of parents and teachers" (Governor's Mem approving L 1996, ch 600, 1996 Legis Ann, at 422-423), and later, "The legislation I approve today protects the children of this State from high-tech cybersex abuse and actual sexual abuse" (id.). Clearly, the intent of the statute is to protect the well-being of our children. This case involves the first conviction obtained under the recently enacted Penal Law § 235.22, which is entitled Disseminating Indecent Materials to Minors in the First Degree. In this case, defendant was actually convicted of two counts of Attempted Disseminating Indecent Materials to Minors in the First Degree, because the person with whom he was communicating was actually an undercover state trooper and not a minor. Note that Reno v American Civil Liberties Union (supra), relied on by defendant, dealt specifically with the Federal Communications Decency Act. Although that decision is certainly useful in guiding us regarding the First Amendment and other Constitutional principles, its specific holding regarding the Federal Communications Decency Act should not be controlling in this case since the wording of that Federal statute is substantially different from the wording of our Penal Law § 235.22. 19 A-140 The Federal Communications Decency Act was struck down primarily for its use of two terms; 47 USCA § 223(a) uses the term "indecent" and 47 USCA § 223(d) uses the term "patently offensive." Neither term was defined by the statute and neither term has a common or universal meaning. Consequently, according to the Supreme Court, the vagueness of those two terms would subject innocent people to prosecution-that is, people whom the statute was never intended to include. Hence, the Supreme Court ruled that the statute was impermissibly overbroad. New York's relevant statute, Penal Law § 235.22 contains no such vague or imprecise term. It does not contain the words "Indecent" or "patently offensive." The only term even close is “harmful to minors", which is contained in subdivision one. That term, however, is precisely defined in Penal Law § 235.20(6) with the same language used by the Supreme Court in Miller v California (413 US 15, 24 [1973]), and therefore cannot be unconstitutionally vague. Clearly, New York's statute does not suffer from the defect that resulted in the striking down of the Federal Communications Decency Act. B. Penal Law § 235.22 Is Not Impermissibly Overbroad. Penal Law § 235.22 states as follows: Disseminating indecent material to minors in the first degree. 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 20 5 ae ce eso ltipe te sh 7 ws A-14] 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. It is important to note the word "and" at the end of subdivision one. In order to violate this Statute, a person must commit the acts described in both subdivisions. A person is free to commit the act described in subdivision one, as long as he does not commit the act described in subdivision two. That is, a person is free to send graphic sexual images to a minor via the internet, as long as he does not attempt to induce the minor to engage in Sexual conduct (see, Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 235.22, 1999 Pocket Part, at 100). Similarly, a person is free to commit the act described in Subdivision two, as long as he does not commit the act described in subdivision one. That is, a person is free to attempt to convince a minor to engage in sexual conduct, as long as he does not send the minor any graphic sexual images. Clearly, the conduct proscribed by Penal Law § 235.22 is very specific. To violate this statute, a person must send a graphic sexual image to a minor via the internet while at the same time attempting to induce the minor to engage in sexual conduct. 21 A-142 It is also important to note that Penal Law § 235.22 is a "conduct-based" statute, and not a "content-based" statute. The conduct proscribed is not "pure speech." At best, it is a combination of conduct and speech. Ergo, the "substantial overbreadth" doctrine enunciated in Broadrick v Oklahoma (413 US 601 [1973]), should be applied (see, Point III, infra, for further discussion of this issue). The overbreadth doctrine of the First Amendment is "strong medicine" and should be employed sparingly and only as a last resort (Broadrick v Oklahoma, supra at 613; New York v Ferber, supra at 769). The overbreadth involved must be "substantial" before a statute will be invalidated on its face (New York v Ferber, supra at 769). A law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications (New York v Ferber, supra at 771). In Broadrick, Justice White explained the overbreadth doctrine as follows: But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids that State to sanction 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 in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if 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 22 A-143 that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-175 (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a Statute must not only be real, but substantial as well, judged in relation to the Statute's plainly legitimate sweep (Broadrick v Oklahoma, supra at 615). Even in dissenting with the majority in Broadrick, Justice Brennan observed: We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine (Broadrick v Oklahoma, supra at 630; New York y Ferber, supra at 772). The statute is not overbroad. It does proscribe specific conduct. There is no possibility that an innocent person who is merely exercising his right to free speech will be arrested and prosecuted under this statute. What is permitted by the statute - that is, what is not proscribed by the statute? Two adults can engage a sexually explicit conversation via the internet. They can arrange a meeting to engage in sexual activity. They can engage in online sexual fantasies. They can 23 A-144 masturbate and describe it to each other. None of these things violate the statute. Two adults can exchange via the internet graphic images of adults engaged in sexual activity. This does not violate the statute. An adult can send via the internet to a minor graphic images of adults engaged in sexual activity. This does not violate the statute. An adult can engage via the internet in a sexually explicit conversation with a minor. They can discuss arranging a meeting for the purpose of engaging in sexual activity. They can discuss and engage in online sexual fantasies. The adult could ask the minor to masturbate and describe it. None of these things violate the statute. A person can present or discuss serious scientific, artistic or literary material regarding sexuality, or any topic, on the internet. This does not violate the statute. A person can display even the most offensive or obscene graphic sexual images via the internet. This does not violate the statute. The type of conduct proscribed by the statute is very specific. The statute prohibits sending via the internet to a minor a graphic image depicting sexual activity while at the same time attempting to induce the minor to engage in sexual conduct. How could it be more specific? No innocent person engaged in innocent activity will be swept up by this statute. No person merely exercising his right to free speech, even if the speech is sexually explicit, will be swept os . Sond ia ee eee baat ry v1 An mas — “ oe eee mn EEN tas de p eS RLS A pe et WE ah BOA Ne vo cette BGS peste oa 2y APRS Ras aaa A-145 up by this statute. It is only the person who uses the internet to lure a minor into sexual activity by sending him or her graphic sexual images that will be Swept up by this statute. Defendant’s claim that Penal Law §235.22 is overbroad is based primarily on the fact that the statute does not require that the People prove that a person intended to communicate with a minor or knew or believed he was communicating with a minor in order for a violation to be proved. Indeed, this element was purposely left out of the statute. In the approval memorandum, Governor Pataki stated, “The central purpose of the bill -- preventing the dissemination of indecent materials to minors -- would be undercut substantially if the new offenses required proof that the defendant knew he was communicating, or intended to communicate, with a minor. Accordingly, such proof is not required". However, enacted at the same time were four ordinary defenses contained in Penal Law § 235.23(3). These defenses insure that the overbreadth complained of by the defendant will not occur. The four ordinary defenses contained in Penal Law § 235.23(2) are 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 materia!s 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 25 A-146 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 labeling, 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. In regard to the type of communication relevant to this case -- that is, internet relay chat or "chatting" -- and even in regard to e-mail communications, paragraph (a) would protect a person from the type of unwarranted prosecution hypothesized by defendant in his brief Requiring a person to make a reasonable effort to determine the age of the recipient of his communication before he sends that recipient graphic sexual images and attempts to induce such person to engage in sexual activity is entirely appropriate and fair. Due to the nature of the internet, the simple question, "How old are you?", would suffice. If the minor lies, and says that he is over 17 years of age, then the person was unable to determine the minor's age as a result of an action taken by the minor, and the defense applies. Note also that here, the undercover trooper at all times maintained that he was a 15 year old female and mentioned this to defendant several times (R519, 524, 574, 584, 620, 661). Additionally, neither of the two hypothetical situations posited by defendant in his brief (at pages 23-24) would result in prosecution. The first hypothetical is based upon the mistaken delivery of e-mail to the wrong e-mail address; no person would 26 A-147 ever be prosecuted for such a mistake (see, Penal Law § 15.20). If the error was the result of the e-mail delivery system, then it was not the person sending the e-mail who caused the delivery to the minor, but the e-mail service. If the error were on the part of the person sending the e-mail-for example, a typographical error in the e-mail address-then the element of intent has been negated. The person intended to send the e-mail to person "A", not person "B." The prosecution would have to based upon some type of "transferred intent" theory which clearly has no application in this type of case. The second hypothetical fails to include all the elements of the crime. There is no risk of prosecution under Penal Law § 235.22 to any adult who engages in online chats, no matter how sexually explicit, if a minor is eavesdropping on the chat. To violate the statute, a person must send the eavesdropping minor a graphic sexual image and then attempt to induce the minor to engage in sexual conduct. If the minor just passively listens to the chat, no violation of the statute occurs. Even if the minor participates in the chat and the chat involves engaging in sexual conduct, the potential for a violation would stil] not be present unless someone sends the minor a graphic sexual image. No adult need fear being prosecuted under Penal Law § 235.22 merely because a minor may be eavesdropping on a sexually explicit conversation. i The Appellate Division, Fourth Department, ruled that Penal Law § 235.22 was not impermissibly overbroad. That court Stated that the overbreadth doctrine should only be applied when 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 State of Md. v Munson Co., 467 US 947, 967-968: People v Foley, 257 AD2d 249). The Court 27 A-148 further stated that 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; People v Foley, supra at 249). And further, that 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; People v Foley, supra at 249). The Appellate Division, Fourth Department, held that Penal Law § 235.22 was sufficiently precise to be constitutional due to its two-pronged nature - that is, that in order to violate the statute a person must send graphic images to a minor and then attempt to lure the minor into sexual activity. The court stated that, "Because of the two-pronged nature of the statute, communication between adults would not be chilled" (People v Foley, supra at 250). In regard to the hypothetical situations posited by the defendant in his brief to the Appellate Division, the Appellate Division, Fourth Department, stated that "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 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; People v Foley, supra at 251). Reversal on this ground should be denied. Penal Law § 235.22 is not impermissibly overbroad. It proscribes specific conduct that is described in precise terms. Despite that a person need not communicate with a person he knows or believes to be a 28 & . : j ' A-149 minor to violate the statute, the ordinary defenses provided in Penal Law § 235.23(3) more than adequately protect a person who, in good faith, was unaware that he was communicating with a minor. POINT 11 PENAL LAW § 235.22 DOES NOT VIOLATE THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION A, Introduction. Article 1, Section 8, Clause 3 of the United States Constitution states that: "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". This section is commonly referred to as the "Commerce Clause" of the United States Constitution. In addition to its obvious affirmative meaning, the Supreme Court has ruled that the Commerce Clause has a negative aspect as well. In Gibbons vy Ogden (22 U.S. 1, 6 [1824]), the Supreme Court interpreted this clause to mean that since the power to regulate commerce has been specifically granted to the Congress of the United States, the individual states cannot pass laws that unreasonably interfere with interstate commerce. This is the so-called "dormant" Commerce Clause. The interpretation of the dormant Commerce Clause most applicable to this case is contained in Pike y Bruce Church, Inc. (397 US 137 [1970]). Writing for the majority, Justice Stewart Stated as follows: A-150 Where the statute regulates even-handedly to effect 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. (Citations omitted). If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and whether it could be promoted as well with a lesser impact on interstate activities (Pike v Bruce Church, Inc., supra at 142). In Philadelphia v New Jersey (437 US 617 [1978]), the Supreme Court offered the following analysis. Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, a more flexible approach has been adopted, the general contours of which are outlined by Pike v Bruce Church, Inc, (supra). The crucial inquiry, therefore, is to determine whether the challenged statute is a protectionist measure or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental (Philadelphia v New Jersey, supra at 624). Because the present case involves a statute that was not intended to regulate commerce, but rather intended to protect children from being lured into sexual conduct via the internet (see discussion infra), the "balancing test" enunciated in Pike v Bruce Church Inc., (supra), -- that is, weighing the legitimate local benefit against the incidental impact upon interstate commerce -- must be applied to this case. SAS y Dae et NE REO WI Sees a ere reer 50 United States v. Kelner, 534 F.2d 1020 (2d Cir.), cert. denied, MP Grice, Ee CE vk vc cicc baxdhacdccnacedncisscsensannne 26 United States v. Kufrovich, 997 F. Supp. 246 (D. Conn. 1997)........c0c0000. 26, 29 A-227 United States v. Lopez. 314 U.S. 549 (1995) oo... United States v. Paredes. 950 F.Supp. 584 (S.D.N.Y. 1996), aff'd, 162 F.3d 1149 (2d Cir. 1998 ...... United States v. Petrillo, PO UR 3 GIDDY 6 cv viviscdccivecscicc cn, United States v. Powell 1 F.Supp.2d 1419 (N.D.Ala. 1998), aff'd without op., 177 F.3d 982 PE TE inca a United States v. Various Articles of Obscene Merchandise Schedule No. 2102, 709 F.2d 132 (2d Cir. 1983)................ United States v. X-citement Video, Inc., 313 U.S. 64 (1994) oo. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel, 425 U.S. 748 (1976) oo... cccccccccen. Watts v. United States, 394 U.S. 705 (1969) ooo... Viii A-228 Statutes and Constitutional Provisions AS USA. 9 Beee 0iiii dccastscaasivacnceieenee 11 1S U.S.C. § OGRE a csscsiciveskictensdekinnnee ane 27 Al USA § BBD oxcsssaitncheatnaseecueeneee eee 19, 20 CPL, 8 BRED ..escscsucsvasvethacavnnaunayesielens tania 44 C.P.L. § GOGO on ciccsecshanssearsounwaddentestaunnieyioneena seein 44 meee Lae OF '. ocss ccavcsnvaxccieisisn site ee l POUR LO © POG cccnviceicdcatiecctavecsccceteieenlolten nee 24 Ponal Law § 29,99 .s.iccististuiscispeeseee eee 11-12 Penet Low © TPG cscisciinnaeiaaee eee 23 POU LAWS EIR sccisicsmiscteisneiesseiee 2, 17, 18, 24 Petal La & ZI Ae visidescincissacaminteeeaanee 34 POG LOS Das » visadntseciadcntcanndsiauaaseoeeeen passim PORE RWW G BIG Gee av cackcccisedessincds dageten ene 3, io POG EOE S DOA svonsdiccsanckadscieeleiekseoueasie ees 47 PUR LA 6 ROD txniviscidendccicdarsceeeah ee 28 PORRE E.Oe ODP Iee cided picscdscacestscsacestenlaninweees 23 iX I Pn OWE ORF oki ee McKinney's Cons. Laws of NY, Book 1, Statutes § RR eiiucsek ue McKinney's Cons. Laws of NY, ................. Book 1, Statutes § 232 McKinney's Cons. Laws of NY, Book 1, Statutes § 272 .................. McKinney's Cons. Laws of NY, Book 1, Statutes § 274.0... U.S. Constitution, Art. I, Le SS. See ee Other Authorities Joseph N. Campolo, Childporn GIF: Establishing Liability for On-Line ‘Service Providers, 6 Fordham I.P., Media & Ent. L.J. 721 (1996) .......... Donnino, Practice Commentary. McKinney's Cons. Laws of NY, Book 39, Penal Law § 15.00 ......................... Donnino, Practice Commentary, McKinney's Cons. Laws of NY, Book 39, Penal Law § 235.00 ....................... Amanda Garrett, Undercover Deputy Foils Chat Room Sex Scheme, Cleveland Plain Dealer, November ‘a... ee A-230 Mark S. Kende, Lost in Cyberspace: The Judiciary’s Distracted Application of Free Speech and Personal Jurisdiction Doctrines to the Internet, 77 Or. L. Rev. 1125 (1998) ........ 9, 24 Webster's Third New International SPE MN UUMMED bindeecccnasicncdsassbolasectecciaes 2. 22 xi STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, ~ - against - _ THOMAS R. FOLEY, Sr. Defendant-A ppellant. - x BRIEF FOR INTERVENOR Preliminary Statement Pursuant to Executive Law § 71, the Attorney General submits this brief in support of the constitutionality of Penal Law § 235.22, Disseminating Indecent Material to Minors in the First Degree, and Penal Law § 263.15, Promoting a Sexual Performance by a Child. Defendant Thomas Foley was convicted under both of these statutes. The Attorney General's appearance in this case is for the sole purpose of supporting the constitutionality of the statutes in question and supplementing the brief submitted by the Oneida County District Attorney. The Statute At Issue Penal Law § 235.22 (disseminating indecent material to minors in the first degree) provides that: A-232 [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 a 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. For a defendant to be held liable under this statute, both of its prongs must be met.’ Under the first prong, a defendant must disseminate over the Internet sexually explicit communications to a minor depicting nudity, sexual conduct, or sadomasochistic abuse that is harmful to minors. Penal Law § 235.20(6) defines harmful to minors as: In his moving brief, while citing to the statute, defendant mistakenly substitutes the word "or" between sections 1 and 2 of the statute (Defendant's Brief at 31). A-233 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 material for minors; and (c) Considered as a whole, lacks serious literary, artistic, political, and scientific value for minors. For criminal liability to arise under the Statute, a defendant must also satisfy the statute's second prong, which requires the defendant to lure a minor into sexual activity. See People v. Foley, 257 A.D.2d 243, 250 (4 Dept. 1999). The second prong proscribes the specific conduct of importuning, inviting or inducing 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." See Penal Law § 235.22(2). There are also four ordinary defenses set forth in Penal Law § 235.23(3):? 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: ? Both the Appellate Division and defendant erroneously refer to these defenses as “affinnative defenses." See, People v. Foley, 57 A.D.2d at 246; Defendant's Brief at 21. A-234 (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 blocking capabilities to access that material or to circumvent any such screening or blocking. Summary of Argument New York's compelling interest in the "prevention of sexual children" has long been recognized. New York v. Ferber, A-235 458 U.S. advance this interest of "surpassing importance," id., New York enacted Vvarious-criminal Statutes, including prohibitions on the dissemination of child Pomography and on child endangerment through the use of obscenities to encourage children to perform immoral acts. These measures easily have survived constitutional challenges. People v. Ferber, 57 N.Y.2d 256, 259 (1982); People v. Rice, 17 N.Y.2d 88] (1966). The recent dramatic growth of the Internet has provided pedophiles with a hew means -- namely high technoiogy -- to commit the old crimes of sexual violence and child abuse. "[A]larmed at the growing use of computer networks and other communications by pedophiles, " punish pedophiles who use the Internet to lure children into sexual activity. See Sponsors’ Memorandum, Bill Jacket, L. 1996, ch. 600; see also Letter dated July 11, 1996 from State Senator William R. Sears to Governor Pataki, Bill Jacket, L. 1996, ch. 600. In violation of Penal Law § 235.22, defendant, a New York resident, intentionally used the Internet to send sexually explicit communication to another New Yorker he believ minor, attempting to induce that person to engage i conduct. ed was a nN sexual Defendant raises a host of constitutional arguments to defeat the State's ability to protect children from sexual exploitation in this era of computer communication. He claims that Penal Law §235.22 is overbroad, vague, and a content-based Statute that cannot survive strict scrutiny. 47, 757 (1982). All these arguments are without merit. Defendant falls far short of > For the attached to th respectively. Court's convenience, copies of these documents are © Attorney General's Brief as Exhibits A and B, A-236 meeting his heavy burden of proving beyond a reasonable doubt that Penal Law § 235.22 is constitutionally invalid. The statute is not overbroad in that it does not abridge the free speech rights of adults who merely converse about sexual matters over the Internet. Rather, Penal Law § 235.22 criminalizes only the conduct of those who transmit communications, which they know to be sexually explicit and "harmful to minors," and use those communications to lure or induce children into performing sexual acts. The Oneida County District Attorney correctly argues that the -dual-pronged nature of Penal Law § 235.22 and the availability of an ordinary defense for those who make a reasonable effort to ascertain the age of the person with whom they have communicated defeats defendant's overbreadth challenge. Moreover, the statute is capable of a reasonable limiting construction: i.e., it may be construed to apply only to a defendant who transmits sexually explicit communication intentionally targeted to a minor in order to lure that minor into sexual activity. Not one of the federal cases on overbreadth relied upon by defendant addresses the constitutionality of a statute such as Penal Law § 235.22, which has both such requirements. Indeed, it is the requirement set forth in the statute's second prong (that, by the means of the sexually explicit communication, a defendant "importunes, invites or induces a minor to engage in sexual ... conduct for his benefit") that defeats all of defendant's free speech arguments. See Penal Law § 235.22(2). These terms are hardly unconstitutionally vague as their common and ordinary meanings and the context in which they are used provides sufficient notice of the prohibited conduct. Sexually explicit communication when used to lure minors to engage in sexual conduct is inherently harmful and therefore, like a threat, harassment or solicitation, is not communication safeguarded by the First Amendment. Given the compelling state A-237 interest in protecting children from sexual exploitation, Penal Law § 235.22 passes constitutional muster under the strict scrutiny test, even if viewed as a content-based regulation on speech. In addition, defendant's Commerce Clause argument must fail. The enactment and enforcement of Penal Law § 235.22 is a legitimate exercise of the State's police powers, especially here where the conduct at issue was entirely intrastate: defendant and the intended recipient of the sexually explicit material were both located in New York. Even if the Court were to find an effect on interstate commerce, under these circumstances, the State's interest in preventing sexual exploitation of children must prevail. Finally, with respect to Penal Law § 263.15, defendant's challenges to the constitutionality of the statute previously have been rejected by this Court and the Supreme Court, and his overbreadth arguments are so speculative that they provide no legitimate basis to overturn this Statute. POINT ONE PENAL LAW § 235.22 COMPLIES WITH THE FREE SPEECH PROVISIONS OF THE STATE AND FEDERAL CONSTITUTIONS BECAUSE IT IS NARROWLY TAILORED TO EFFECTUATE THE STATE'S COMPELLING INTEREST IN PROTECTING CHILDREN FROM PEDOPHILES WHO SEEK TO USE THE INTERNET TO LURE THEM INTO SEXUAL ENCOUNTERS A defendant challenging the constitutionality of a statute faces a "heavy burden" of showing that the statute is invalid. People _v. Bright, 71 N.Y.2d 376, 382 (1988). Because a legislative enactment "js presumed to be valid," id., a state statute A-238 "will be stricken as unconstitutional only as a last resort." People v. Davis, 43 N.Y.2d 17, 30 (1977), cert. denied, 435 U.S. 998 (1978); see also People v. Epton, 19 N.Y.2d 496, 505 (1967), cert. denied, 390 U.S. 29 (1968) (a court must assume that the legislature intended to enact a statute "in harmony" with both the state and federal constitutions). For a defendant to prevail, he or she must prove that Penal Law § 235.22 is unconstitutional beyond a reasonable doubt. See Fenster v. Leary, 20 N.Y.2d 309, 314 (1967). Because defendant has not and cannot show beyond a reasonable doubt that the challenged statute violates the free speech provisions of the state and federal constitutions, the Fourth Department's decision upholding the constitutionality of Penal Law § 235.22 must be affirmed. A. Defendant Has Not Met His Heavy Burden of Proving That Penal Law § 235.22 is Overbroad The overbreadth doctrine is an exception to the "general rule” that an individual may not challenge the constitutionality of a statute on behalf of third parties. See People v. Hollman, 68 N.Y.2d 202, 208 (1986). The doctrine, which applies only in the First Amendment context, permits a defendant whose own free speech rights are not violated by a statute to argue that a "Statute's facial ability to reach protected conduct is so broad that its continued application may chill the lawful exercise of [other] citizens’ right to freedom of speech." Id.; see also Brockett v. Spokane _ Arcades, Inc., 472 U.S. 491, 503 (1985). The overbreadth doctrine, however, is "strong medicine" and is to be applied "sparingly and only as a last resort." See Broadrick vy. Oklahoma, 413 U.S. 601, 613 (1973); see also, New York v. Ferber, 458 U.S. at 769. 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." Member of City Council v. Taxpayers for Vincent 466 U.S. 789, 800 (1984); see A-239 also, Osborne y. Ohio, 495 U.S. 103, 112 (1990). Instead, a defendant may challenge a statute as overbroad "only when the statute's unconstitutional reach is substantial" (People v. Hollman. 68 N.Y.2d at 208), and 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 State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 967-68 (1984); see also, Osborne v. Ohio, 495 U.S. at 112 ("we have repeatedly emphasized that where a statute regulates expressive conduct, the scope of the Statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the Statute's plainly legitimate Sweep") (citation omitted). Finally, a Statute will not be struck down pursuant to the overbreadth doctrine unless it jis "incapable of a_ reasonable limiting instruction." People v. Hollman, 68 N.Y.2d at 208; see also Broadrick v. Oklahoma, 413 U.S. at 613. | F Defendant fails to demonstrate any real or substantial overbreadth of Penal Law § 235.22, especially in light of the state's legitimate interest in preventing sexual exploitation of children. Defendant falls far short of meeting his heavy burden of demonstrating that the alleged overbreadth of Penal Law § 235.22 is real and substantial given the State's plainly legitimate sweep in protecting children from sexual exploitation. See New York v. Ferber, 458 U.S. at 757. The State's interest in "safeguarding the physical and psychological well-being of a minor" is "compelling." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). The prohibitions in this law are necessary to protect children from new dangers made possible by technological advances. See Exhibit C, Governor's Approval Memorandum, Bill Jacket L. 1996, ch. 600; see also Mark S. Kende, Lost in A-240 Cyberspace: The Judiciary's Distracted Application of Free Speech and Personal Jurisdiction Doctrines to the Internet, 77 Or. L. Rev. 1125, 1162-63 (1998) ("the most serious harm caused by the Internet so far involves predatory adults who use chat rooms connected to sexually explicit sites as a way of luring children ... into a rendezvous which ends in sexual violence or death"). Defendant suggests a wide range of protected speech ostensibly reached by Penal Law § 235.22. But defendant's argument asks this Court to ignore the statute's second prong -- the use of sexually explicit communication to lure a minor into sexual conduct. And, as the Oneida County District Attorney effectively recounts, the existence of this requirement means that the statute does not reach numerous circumstances of sexually explicit conversations between adults. See District Attorney's Brief at 21-25. The District Attorney correctly argues that the dual-pronged nature of Penal Law § 235.22, along with the ordinary defense that precludes liability if a person makes a reasonable effort to ascertain the age of the person with whom he or she has communicated insulates the statute from any potential overbreadth claims. 2. Any overbreadth in Penal Law § 235.22 can be cured if the statute is interpreted to require the People to prove that a defendant both intended to transmit sexually explicit communications to a minor and intended to lure that minor into sexual activity. Even if this Court were not persuaded by the analysis set forth by the Oneida County District Attorney and concludes that Penal Law § 235.22 somehow suffers from real and substantial overbreadth even in light of the statute's plainly legitimate sweep, 10 A-241 this Court's overbreadth Jurisprudence precludes it from holding the statute unconstitutional. As long as a statute is Capable of a reasonable limiting construction, a court cannot strike it down pursuant to the overbreadth doctrine. See People v. Hollman, 68 N.Y.2d at 208; see also Broadrick v. Oklahoma, 413 U.S. at 613 ("[flacial overbreadth has not been invoked when a limiting construction has been or could b € placed on the challenged Statute"). For a limiting construction to be reasonable, it "must be one which the court ‘May reasonably find implicit’ in the words used by the Legislature[.]’” People v. Dietze, 75 N -Y.2d 47, 52 (1989) (quoting People ex rel. Morriale v. Branham, 29] N.Y. 312, 317 (1943)). Here, there exists a limiting construction Supported both by the language of the statute and its legislative history. The first prong of Penal Law § 235.22 provides that a person is guilty of disseminating indecent material to a minor if: 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. Due to the location of the word "intentionally" at the beginning of this Phrase, it is reasonable to read that word as modifying everything that follows, i2., as requiring that the defendant transmit the Proscribed communication intentionally to a minor. See McKinney's Cons. Laws of NY, Book 1, Statutes 1] A-242 § 232 at 392 ("It is a general rule in the interpretation of statutes that the legislative intent is primarily to be determined from the language used in an act, considering the language in its most natural and obvious sense."); see also McKinney's Cons. Laws of NY, Book 1, Statutes § 272 at 440 ("The cardinal rule in interpreting penal statutes is to give effect to the intention of the legislative body which enacted them, and such intention is determined from the language used, giving to the words their ordinary meaning."). This analysis is also consistent with the well-settled rule of statutory construction that "if it is practicable to avoid a construction of a [penal] statute which eliminates intent as an element of a crime, the courts will do so." See McKinney's Cons. Laws of NY, Book 1, Statutes § 274 at 443; United States v. X-citement Video, Inc., 513 U.S. 64, 68-69 (1994).* Cf. Penal * In X-citement Video the Court interpreted 18 U.S.C. § 2252 (a provision of the Protection of Children Against Sexual Exploitation Act of 1977), which outlawed the interstate transportation of child pornography. The statute, in pertinent part, imposed liability on any person who: "(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual description, if -- (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct." The Court held that the term "knowingly" used in subsection (1) to modify the transportation element of the statute also applied to the phrase "use of a minor" in subsection (1) (A). See 513 U.S. at 68. Although this was not the most grammatically correct reading of the statute, the Court ruled that without requiring an actor to actually know that the materials transported involved the use of minors, it would produce an “absurd” result because the statute would sweep within its ambit "actors who had no idea that they were even dealing with sexually explicit material.” Id. at 69. Moreover, the Court based its decision on its earlier cases that interpreted “criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” Id. at 70. 12 A-243 Law § 15.15(1) (if a statute contains only one reference to a particular mental state, such as "intentionally," there is presumption that it applies "to every element of the offense unless an intent to limit its application clearly appears"). Construing the language in the first prong of Penal Law § 235.22 to limit liability to those defendants who transmit the proscribed communications intentionally to minors necessarily incorporates the intent requirement into the second prong. After all, Penal Law § 235.22(2) provides that: 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 2 sexual performance, obscene sexual performance, or sexual conduct for his benefit. The sexually explicit communication intentionally transmitted to the minor is the "means" by which the defendant must importune, invite or induce the minor to engage in sexual activity. Indeed, the words "importune ... .. invite," or "induce," although not defined by the Penal Law, are each words that, in their plain meanings, contemplate Purposeful conduct. Webster's Dictionary defines "importune" as "to unreasonable requests or troublesome persistence." See Webster's Third New International Dictionary at 1135 (1981). The same conscious or deliberate conduct is contemplated by the word "induce," which is defined as "to move and lead (as by persuasion inducement ... [or] to request the presence or participation of." See Id. at 1154, 1190. Based on this analysis, it is reasonable to construe Penal Law § 235.22 as imposing criminal liability only if A-244 the People prove that a defendant targeted a minor in transmitting sexually explicit communications and intended to importune, invite or induce a person he or she reasonably believed to be a minor into sexual activity. See Donnino, Practice Commentary, McKinney's Cons. Laws of NY, Book 39, Penal Law § 235.00 at 286 (explaining that under Penal Law § 235.22, "the communication of the ‘harmful to minors' material must be intentionally aimed at a minor for the purpose of seducing the minor to engage in prohibited sexual activity for the seducer's benefit"). Although the Court can accept the limiting construction based solely on the statute's language, it also is supported by the statute's legislative history. Indeed, State Senator William R. Sears, one of the sponsors of the legislation, wrote that: [t]he purpose of this bill is [to] deter individuals who would use computer networks to lure children into sexual relations by intentionally transmitting indecent materials to children through computer networks. The bill would not hold liable a computer network, on-line service provider, or any other individual who did not intentionally transmit the materials to minors. Exhibit B, Letter dated July 11, 1996 from State Senator Williams R. Sears to Governor Pataki, Bill Jacket, L. 1996, ch. 600. Defendant's argument to the contrary places too much reliance upon Governor Pataki's Approval Memorandum. Admittedly in one part of his Approval Memorandum, the Governor stated that the bill does not require "proof that the defendant knew he was communicating, or intended to communicate, with a minor;" however, in another part of the Memorandum, the Governor stated that liability will be imposed under the statute if a defendant "intentionally uses any computer communication system to initiate 14 A-245 or engage in such communication with a person who he has reason to believe is a minor." See Exhibit C, Governor's Approval Memorandum, Bill Jacket, L. 1996, ch. 600. In light of the statute's Purpose and the plain language contained therein, this Court may reasonably construe Penal Law § 235.22 to require the People to prove that a defendant intentionally transmitted to a minor sexually explicit communications to lure that minor into performing a sexual act. This intent can be demonstrated, like in any other case, by reviewing the totality of the actions taken by the adult with respect to the minor that has been victimized See Donnino, Practice Commentary, McKinney's Cons. Laws of Y, Book 39, Penal Law § 15.00 at 44 (intent "May be proved by circumstantial evidence, and the objective evidence of the surrounding circumstances may be examined to determine a person's ‘conscious objective"'). Adopting this reasonable limiting construction saves the Statute from any constitutional infirmity under an overbreadth challenge. The proposed limiting construction significantly limits the statute's reach to exclude protected sexual expression over the Internet. Adult Internet users have nothing to fear if they accidentally send to a child an €-mail containing material proscribed by the statute to a child. And no liability will be imposed if an adult unwittingly engages in any of the proscribed conduct with a minor in a group chat room or in a one-on-one Chat. Defendant suggests that the statute reaches adults who wish to engage in sexual fantasies involving adults pretending to be Children. Whether the statute would have a real effect on such speech is speculative. To the extent that it does have such a reach, it is hardly substantial in light of the State's legitimate and 15 A-246 compelling interest in protecting children from sexual exploitation. See New York v. Ferber, 458 U.S. at 757. Certainly, adults retain the right to pursue sexual fantasies, except when they intentionally take action that harms another, especially a minor. Under the limiting construction, only when adults, like defendant in this case, deliberately set their sights on a person they reasonably believe to be a minor and purposefully engage in Internet communications with that minor to induce that minor into performing a sexual act will they face liability under the statute.° One factor that may serve to negate a defendant's intent would be evidence that a defendant made a reasonabie effort to ascertain the child's true age and that the child interfered with the defendant's age determination. See Penal Law § 235.23(3)(a). Thus, defendant's intent in these circumstances would be a question of fact to be decided by the jury. In this case, defendant intentionally transmitted the materials proscribed by the statute to a person that he believed to * Defendant also claim that Penal Law § 235.22 is overbroad because it creates a "heckler's veto" whereby a person in a group chat room could stifle sexual communications between adults merely by declaring that he or she is a minor, whether or not that is in fact true. See Reno v. ACLU, 521 U.S. 844, 880 (1997). While the so called "heckler's veto" was a grave concern under the paradigm set forth in Reno, where the Supreme Court found that portions of the Communications Decency Act of 1996 (CDA) were overbroad because they punished, in a vague and undefined way, "indecent" and "patently offensive" speech, it is of lesser or no concern under the precisely defined statute at issue in this case. Penal Law § 235.22's requirement that a defendant deliberately target a minor in order for liability to be imposed makes this statute substantially narrower than the one at issue in Reno. A-247 be a minor.° Defendant admitted that he deliberately sent child pornography to a person who he believed to be only 15 years old. See People v. Foley, 257 A.D.2d at 248; R: 915-921. He also urged her to masturbate while she viewed it, and had discussions with the purported 15-year-old so that they could arrange a sexual rendezvous. See, People v. Foley, 257 A.D.2d at 248; R: 519, 521-23, 574, 578-79, 588, 592-93, 595, 618, 621, 626-30, 654-57, 661, 664-67. These actions more than satisfied the intent element.’ ° Such intent also was Satisfied by the defendant in People _v. Barrows, 177 Misc. 2d 712 (Sup. Ct. Kings Co. 1998), the only other reported case where a defendant was prosecuted under Penal Law § 235.22. The defendant in Barrows Satisfied the intent element because he: (1) met the victim, an undercover detective portraying a 13-year-old girl in a "preteen chat room"; (2) demonstrated that he understood that the purported victim was only 13; (3) intentionally sent child pornography to the purported 13-year-old: (4) urged the purported victim to masturbate while viewing the child pornography; and even (5) intentionally drove to Brooklyn to effectuate a sexual rendezvous with the fictional 13 year old. See People v. Barrows, 177 Misc.2d at 714-22. ” If this Court adopts the proposed limiting construction, defendant's conviction under Penal Law § § 110.00/23 5.22 will not be jeopardized. Although defendant alleged in the Appellate Division that the jury charge fatted to convey to the jury that defendant was required to act with intent to be held liable under the Statute, the Appellate Division specifically held that defendant failed to preserve any challenge to the court's charge. See 257 A.D.2d at 253. Thus, even if this Court adopts the proposed limiting construction, the fact that the trial court may not have specifically included the intent standard in its jury charge does not affect the validity of defendant's conviction because defendant failed to preserve any claim regarding the inadequacy of that charge. See People v. Gray, 86 N .Y.2d 10, 18-19 (1995). In any event, there is overwhelming evidence in the record that defendant acted with the requisite intent. 17 A-248 Although defendant concedes that any purported overbreadth in the statute can be cured by a limiting construction, he contends that such a construction should require the People to prove both intent and that the defendant committed some sort of "overt act" towards actually meeting the child (Defendant's Reply Brief at 5). An "overt act" requirement is not supported by the plain language of the statute. Moreover, the additional "overt act" requirement that defendant suggests is unnecessary. Because intent is proven by examining the totality of a defendant's actions, a jury necessarily must consider whether a defendant committed "overt acts" such as those suggested by defendant (arranging transportation for a minor or entering the state to meet a minor, see Defendant's Brief at 40). Thus, it would be redundant for the People to be required to prove that a defendant intended to lure a minor into sexual activity and that the defendant also intended to commit an "overt act."* Defendant also maintains that the statute is overbroad because the "harmful to minors" standard, which proscribes the transmission of materials that are obscene as to minors under prevailing New York standards (See Peal Law § 235.20[6]), will ® Defendant mistakenly claims that the Barrows court sustained one of the charges of Attempted Disseminating Indecent Material to a Minor charges against the defendant on First Amendment grounds by reading an overt act requirement into the statute (Defendant's Brief at 42-43). Instead, the court found that the charge against the defendant relating to his travel from Connecticut to Brooklyn to meet the putative minor survived a Commerce Clause challenge. See People v. Barrows, 177 Misc. 2d at 733. Nonetheless, the court, relying principally on Reno v. ACLU, dismissed this charge on First Amendment grounds. Id. at 733-35. Thus, defendant's claim that Barrows read an overt act requirement into the statute to sustain a First Amendment challenge is meritless. 18 A-249 be unfairly imposed on Internet users in other states that may employ different community standards (Defendant's Reply Brief at 8). While communities may differ about what materials are obscene as to adults, there is much more consensus on what materials are obscene as to minors. And any potential community differences regarding this standard is reduced further where, as here, the type of materials that are to be construed under the “harmful to minors" standard include “actual or simulated nudity,” sexual conduct'® or sado-masochistic abuse."'' See Penal Law § 235.22(1). In any event, New York has some of the most lenient standards regarding obscenity in the nation. See, e.g., People ex. rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557 (1986) ("New York has a long history and tradition of fostering freedom of expression, often tolerating and Supporting works which in other states would be found offensive in the community."); United ” "Nudity" is defined as "the showin genitals, pubic area or buttocks with | the showing of the female breast with any portion thereof below the top covered male genitals in a disc § 235.20(2). & of the human male or female ess than a full opaque covering, or less than a fully Opaque covering of to the nipple, or the depiction of ernibly turgid state. Penal Law © "Sexual Conduct" is defined as homosexuality, sexual intercourse, or physical clothes or unclothed genitals, pubic are female, breast." Penal Law § 235.20(3) "acts of masturbation, contact with a person's a, buttocks or, if such person be a '' Sado-masochistic abuse" is defined as "fl upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed." Penal Law § 235.20(5). agellation or torture by or States v. Various Articles of Obscene Merchandise Schedule No. 2102, 709 F.2d 132, 134, 137 (2d Cir. 1983) (upholding district court's conclusion that "detailed portrayals of genitalia, sexual intercourse, fellatio and masturbation," including the film "Deep Throat" and other pornographic films and magazines, are not obscene in light of the community standards prevailing in New York City area). Thus, it is unlikely that any material considered to be "harmful to minors" in New York would not be considered "harmful to minors" outside New York. 3 The federal cases reviewing the constitutionality of statutes regulating - Internet communications do not support defendant's overbreadth claim. The federal cases reviewing the constitutionality of statutes regulating Internet communications do not support defendant's overbreadth claim because not one of them addresses the constitutionality of a statute that criminally punishes adults for both transmitting sexually explicit material to minors and then inviting or inducing those same minors to engage in sexual activity. See, e.g., Reno v. ACLU, 521 U.S. 844 (1997); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); Cyberspace _v. Engler, 55 F.Supp.2d 737 (E.D. Mich. 1999); ACLU v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999); American Libraries Association (ALA) v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997). Instead, these cases declared unconstitutional Internet statutes that merely proscribed, in various formulations, the transmission or availability of sexual or other types of images or comments to minors that were either "harmful to minors" or otherwise "indecent" or "patently offensive." See, e.g., Reno v. ACLU, 521 U.S. at 859-60; ACLU v. Johnson, 194 F.3d at 1152. A-251 Indeed, the federal court that declared portions of the New Mexico Internet statute unconstitutional specifically noted that its decisions in no way addressed the sections of the Statute that prohibited a person from using the Internet to lure a minor into In support of his claim that the challenged statute is substantially overbroad, defendant relies heavily on Reno, in which the Supreme Court declared portions of the CDA unconstitutional on overbreadth and vagueness grounds. See, Reno v. ACLU, 521 U.S. at 871, 873, 877-78, 881. The CDA is distinguishable, however, because it did not have a luring Provision. Instead, it placed criminal liability only upon individuals who: (1) knowingly transmitted "obscene or indecent" comments Or images over the Internet to any person under the age of 18 (see 47 U.S.C. § 223 [a]); or (2) used 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 €XCretory activities or organs" to any person under the age of 18 (see 47 U.S.C. § 223 [d)]). Id. at 859-60. The Court also held that the CDA was overbroad and vague because it did not Provide Internet users with proper guidance about the type of materials that were criminally prohibited. Id. at 871. By contrast, the operative terms of Penal Law § 235.22 are precisely defined. The statute only covers Internet users who transmit sexually explicit communications to minors and then attempt to lure those minors into sexual activities. A-252 See Penal Law § 235.22. Due to the statute's explicit wording and narrow scope, defendant's overbreadth claims here, unlike those under the CDA, are not premised upon any alleged interference with the transmission of materials having scientific, educational or other redeeming social value. Id. at 877, 881." In short, the Statute at issue here is\ considerably narrower than the CDA because it is concerned only with the real fear that a pedophile will use the Internet to entice a child into performing a sexual act. In sum, defendant cannot meet his burden of showing real and substantial overbreadth in light of. (1) the state's legitimate interests in protecting its children from cyber-pedophiles; (2) the statute's dual-pronged requirements; (3) the ordinary defense for reasonable efforts to ascertain the age of the recipient of the communication; and (4) the statute's definitions that precisely describe the prohibited communications. Moreover, under the limiting construction advocated in the alternative by the Attorney General, it places liability only those individuals who intentionally transmit to minors explicit sexual communications to lure those minors into performing sexual acts. Under this construction, the Statute will have at most a de minimis impact on an adult's ability '? Likewise, the Reno Court’s concern that liability could be imposed on an Internet user who merely displayed "indecent" material on his computer in the presence of a minor would not be realized in this case. Reno v. ACLU, 521 U.S. at 877. Aside from the fact that the statute here, unlike the CDA, carefully describes and defines the specific material that may not be transmitted to minors, liability cannot be imposed in this case unless the Internet user also attempts to lure a minor into sexual conduct. See Penal Law § 235.22(2). Thus, the type of substantial overbreadth present in Reno, which could have potentially placed criminal liability on a person who merely displayed material that violated the CDA's undefined "indecency" provision, is simply not present in this case. 22 A-253 to freely communicate about sexual matters over the Internet. For these reasons, defendant's overbreadth challenge must fail. B. There is No Merit to Defendant's Claim that Penal Law § 235.22 is Unconstitutionally Vague Defendant also claims that Penal Law § 235.22 is unconstitutionally vague because the "luring" portion of the statute uses the imprecise words "importunes, invites, or induces" and "for his benefit," which he contends are imprecise. These terms, however, have common and ordinary meanings and the context in which they are used provides sufficient notice to those reading the Statute of the conduct that is prohibited. This Court has adopted a two-pronged analysis to determine whether a statute is unconstitutionally vague. Under the first prong, a court must determine whether the statute provides "sufficient notice of what conduct is prohibited[.]" People _v. Bright, 71 N.Y.2d at 382 (citations omitted); see also People v. Nelson, 69 N.Y.2d 302, 307 (1987). If a Statute “’conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices,” it will Survive a vagueness challenge even if it contains language that is “inherently imprecise." People v. Shack, 86 N.Y.2d 529, 538 (1995) (quoting United States v. Petrillo, 332 U.S. 1, 8 (1946)). Under the second prong of the vagueness test, a court must determine whether the statute is written in such a manner so "as to permit or encourage arbitrary and discriminatory enforcement." People v. Bright, 71 N.Y.2d at 382; see also People v. Shack, 86 N.Y.2d at 538. The Constitution, however, “only requires reascuable precision; it does not impose ‘impossible standards.’” People v. Cruz, 48 N.Y.2d 419, 424 (1979) (quoting United States Vv. Petrilio, 332 U.S. at 7-8). Thus, a “’statute will not be struck A-254 down as vague, even though marginal cases could be put where doubts might arise.’” Id. (quoting United States v. Harriss, 347 U.S. 612, 618 (1954)). Finally, when making a vagueness determination, the challenged portion of the statute "cannot be viewed in isolation" but, instead, must be considered within the context of the statute as a whole. People v. Shack, 86 N.Y.2d at 538-39. 1. The terms "importunes," "invites" or "induces" are not unconstitutionally vague. Defendant maintains that the terms "importunes, invites or induces," as used by Penal Law § 235.22(2), are unconstitutionally vague. Although these terms are not defined by the Penal Law, each of these words has a common and ordinary meaning. The "quest for definiteness does not preclude the Legislature from using ordinary terms to express ideas that find adequate interpretation in everyday usage and understanding." People v. Illardo, 48 N.Y.2d 408, 414 (1979). Webster's Dictionary defines "importune" as "to press or urge with frequent or unreasonable requests or troublesome persistence," "induce" as "to move and lead (as by persuasion or influence)" and "invite" as "to offer an incentive or inducement ... [or] to request the presence or participation of." See Webster's Third New International Dictionary at 1135, 1154, 1190 (1981). Any person of "ordinary intelligence" would understand that these terms refer to a conscious effort to seduce, lure, solicit, or otherwise persuade. See People v. Nelson, 69 N.Y.2d at 307. The common meaning of these terms would not permit the statute to be enforced in an arbitrary or discriminatory manner. Furthermore, taken in the context of the entire statute, the conduct that the Legislature prohibiting is evident. By its plain language, the statute forbids a person from doing two things: 24 A-255 (1) transmitting sexually explicit communications to a minor; and (2) through the transmission of such material, seducing, persuading or luring that minor to engage in specific sexual acts with him or for his gratification. See Penal Law § 235.22. All of the sexual acts specified in the second prong of the statute are precisely defined by the Penal Law,” leaving no doubt as to the forbidden behavior. Because this language as a whole "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and Practices," defendant's vagueness challenge to the terms "importunes, invites or induces" must fail. People v. Shack, 89 N.Y.2d at 538; see also People v. Cruz, 48 N.Y.2d at 424.'4 2. The term "for his benefit" is not unconstitutionally vague. Defendant also claims that the term "for his benefit,” as used in Penal Law § 235.22(2), is unconstitutionally vague. Penal Law § 235.22 (2) prohibits a defendant from using the computer communication proscribed by the first prong of the statute to “importune[], invite[] or induce[] a minor ... to engage in a sexual 'S The terms "sexual intercourse” and "deviate sexual intercourse” are defined in Penal Law § 130.00 (1), (2). The terms performance" and "obscene sexual performance” are defined j Law § 263.00(1), (2). And the term "sexual contact" is defined in Law § 130.00(3). These definitions, which defendant does not chal] remove any uncertainty as to the conduct proscribed by the statute. '* Not one of the arguments defendant sets forth in his brief support his claim that terms "importunes," "invites" or "induces" are unconstitutionally vague (Defendant's Brief at 37-44). Instead, these arguments simply rehash his meritless overbreadth claim, which the Intervenor has already addressed. "sexual Penal Penal enge, A-256 performance, obscene sexual performance, or sexual conduct for his benefit." The word "benefit" is defined in Penal Law § 10.00(17) 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." Thus, the statute prohibits a defendant from transmitting a sexually explicit communication to a minor and then inducing or inviting that minor to engage in a variety of sexual acts, including masturbation,’ for the defendant's own "gain or advantage." A person of "ordinary intelligence" would understand that in a crime involving computer communications about sex, a pedophile can obtain "a gain or advantage” in the form of sexual gratification merely by persuading a minor to engage in a sexual act, even outside the defendant's presence.'® In addition, there may be circumstances where a pedophile engages in this type of conduct to gain power over the child, which the pedophile can then use to his or her advantage in eventually arranging a meeting with the child. See Mark S. Kende, 77 Or. L. Rev. at 1162-63; Joseph N. Campolo, Childporn GIF: Establishing Liability for On-Line Service Providers, 6 Fordham. I.P., Media & Ent. L.J. 721 (1996) ("Pedophiles, after establishing a dialogue with minors in ... [Internet] ‘chat’ areas, often send these minors child pornography in order to begin a sexual dialogue with the intent of luring the 'S Penal Law § 235.20(3) defines "Sexual Conduct" 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." '© Indeed, the legislative history for the statute provides that even if "actual physical contact is not made between pedophile and victim, the minor is still being exploited." Exhibit A, Sponsors' Memorandum, Bill Jacket, L. 1996, ch. 600 26 effective methods of victimizing minors within the cyber-pedophilic world."). Accordingly, the statute sufficiently notifies a person of "ordinary intelligence" of the conduct that is Prohibited by the statute. See People v. Nelson, 9 N .Y.2d at 307; People _v. Illardo, 48 N.Y.2d at 414.” For these reasons, defendant's vagueness challenge must fail. G Penal Law § 235.22 Complies with the First Amendment Because it does not Prohibit Protected Speech. But even if this Court finds that the Statute is a Content-Based Regulation, it passes Constitutional Muster under the Strict-Scrutiny Test. By prohibiting a person from using sexually explicit material to lure a child into sexual activity, Penal Law § 235.22 does not punish Speech aimed at any legitimate expression protected by the First Amendment. Rather, it criminalizes only speech intentionally used for the illegitimate and illegal purpose of luring a child into sexual activity that the statute proscribes. For this reason, the statute does not run afoul of the First Amendment. ’ Defendant, relying on People v. Barrows, 177 Misc.2d at 732-33, Suggests that, in the absence of an "overt act" requirement, the term "for his benefit" is vague because there is no proof that a minor who has been encouraged by a pedophile to masturbate over the Internet has actually committed such an act (Defendant's Brief at 44-45). This is irrelevant because liability under the statute is premised upon a defendant's conduct in luring a child into performing a sexual act and not whether the minor actually performed the sexual act. See Penal Law § 235.22. Moreover, defendant's argument does not address the clarity of the Statute, which informs defendants and law enforcement personnel about the type of conduct prohibited. 27 A-258 The First Amendment protects, above a else, speech that is part of the "exposition of ideas." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Public expression of ideas may not be prohibited merely because the ideas themselves are offensive to some of their hearers. See Street v. New York, 394 U.S. 576, 592 (1969). But speech that is "so removed from any ‘exposition of ideas"' will "“lack{] all protection." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel, 425 U.S. 748, 762 (1976) (quoting Chaplinsky v. New Hampshire, 315 U.S. at 572). : Speech used to harass, abuse, or harm a listener has little to do with the exchange of ideas that the First Amendment seeks to foster and protect, and therefore, criminal prohibitions on such speech pass constitutional muster. For example, true threats are not protected by the First Amendment. Watts v. United States, 394 U.S. 705, 707, 708 (1969); United States v. Kelner, 534 F.2d 1020, 1025-27 (2d Cir.), cert. denied, 429 U.S. 1022 (1976). And, similarly, “resorts to epithets or personal abuse" are not "a communication of information or opinion safeguarded by the Constitution." Cantwell v. Connecticut, 3 10 U.S. 2965 309-10 (1940). Indeed, telephone calls made with the intent to "harass, annoy, threaten or alarm another person" can be the subject of criminal proscription without running afoul of the First Amendment. See People v. Shack, 86 N.Y.2d at 535, 536 (rejecting First Amendment challenge to aggravated harassment Statute). Accordingly, speech used as a vehicle to engage in criminal conduct is not protected by the First Amendment. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) ("[i]t 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"); United States v. Kufrovich, 997 F. Supp. 246, 254 (D. Conn. 28 A-259 1997) ("criminal conduct is not protected under the First Amendment simply because it involves the use of speech"). Speech used to foster the sexual exploitation of children also does not enjoy any Constitutional protection. See Osborne v. Ohio, 495 U.S. at 109-10. For example, in United States v. Kufrovich, 997 F. Supp. at 254, the Federal District Court in Connecticut held that a defendant's conviction for using an Internet communication to knowingly persuade, induce, entice, or coerce a minor to engage in a sexual act in contravention of 18 U.S.C. §§ 2422(b)"® did not violate the First Amendment because the proscribed speech was “the ‘very vehicle of the crime itself” (citation omitted). Likewise, in United States v. Powell, 1 F.Supp.2d 1419, 1422 (N.D. Ala. 1998), aff'd without op. 177 F.3d 982 (11th Cir. 1999), the court noted that 18 U.S.C. § 2422(b) did not run afoul of the First Amendment because it criminalized "the use of interstate commerce for the purpose of * 18 U.S.C. § 2422(b) provides in pertinent part: "[w]hoever, using the mail or any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, tO engage in prostitution or any sexual activity for which any person can be charged with a criminal Offense, or attempts to do so shall be fined under this title, imprisoned not more than 15 years, or both." 29 A-260 persuading, inducing, and enticing a person under eighteen years of age to engage in a sexual act which is already illegal.’ This concept also has been applied in a somewhat different context by New York courts, which have permitted adults to be held criminally responsible for making sexual communications to a child. For example, if an adult meets a minor on a street comer and hands the minor sexually explicit materials or tries to induce a minor to engage in sexual activity, the adult, at the very least, can be charged with Endangering the Welfare of a Child under Penal Law § 260.10. See People v. Rice, 17 N.Y.2d 881 (1966) (using obscenities to ask two girls aged 12 and 13 to perform an “immoral act" supported endangering conviction); People v. Dunavin, 173 A.D.2d 1032, 1034 (3d Dep't. 1991) (defendant properly convicted of endangering for showing two girls aged 7 and 10 a sexually explicit film and pinching their buttocks); People v. Ahlers, 98 A.D.2d 821, 822-23 (3d Dep't. 1983) (defendant '? The Supreme Court has also ruled that the First Amendment will not protect speech use as a vehicle to harm children. For example, in New_York v. Ferber, 458 U.S. at 761-64, the Court rejected a First Amendment challenge to a New York statute (Penal Law § 263.15) that outlawed promotion of a sexual performance by a child under the age of sixteen. The Court held that the speech at issue in Ferber -- a person's right to promote, distribute, or advertise child pornography -- was not protected by the First Amendment because such speech was "intrinsically related to the sexual abuse of children." Id. at 759. The circulation of child pornography was related to the sexual abuse of children because it "exacerbated" the harm already suffered by the children who were first victimized when these materials were originally produced. Id. Thus, the Court upheld the statute on First Amendment grounds because the State's compelling interest in protecting children from the evils of child pornography overwhelmingly" outweighed any “expressive interest[]" a person had in distributing or promoting child pornography. Id. at 763-64. 30 A-261 Properly convicted of endangering because he encouraged a child to engage in sodomy); People v. Poplaski, 162 Misc. 2d 209 (Dist. Ct. Nassau Cty 1994) (defendant who spoke to boys between the ages of 12 to 15 over the telephone that he constitutionally guaranteed"). These cases demonstrate that while an adult unquestionably has the right to engage in sexually oriented speech, he or she does not have an unbridled right to communicate such speech to children. The import of these decisions is that speech used to harm the listener is not immunized by the First Amendment. The communications proscribed by Penal Law § 235.22 are criminalized because they are used to induce Children into performing a variety of illegal sexual acts. Communications of this type are wholly unrelated to the exchange of ideas that the First Amendment seeks to foster and protect and antithetical to the State's compelling interest in “’safeguarding the physical and psychological well-being of a minor.’” New York v. Ferber, 458 U.S. at 756 (citation Omitted). For these reasons, Penal Law § 235.22 is consistent with the free speech provisions of the State and federal constitutions. See New York v. Ferber, 458 U.S. at 761-64; Giboney v. Empire Storage & Ice Co., 336 USS. 490, 498; United States v. Kufrovich, 997 F, Supp. at 254. In any event, even if the Court finds that Penal Law § 235.22 is a content-based statute, it passes Constitutional muster under the Strict-scrutiny test that applies to such statutes. A content-based limitation on speech will be upheld if the state demonstrates that the limitation "iS Necessary to serve a compelling State interest and that it is narrowly drawn to achieve that end." Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 45 (1983). In this case, the State, undeniably, has an overwhelming interest in the "prevention of sexual exploitation and abuse of children." New York v. Ferber, 458 U.S. at 757 (describing this 31 A-262 interest as one of “surpassing importance"); see also Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989) (state has a "compelling interest in protecting the physical and psychological well-being of minors"). Moreover, Penal Law § 235.22 is necessary to further the state's compelling interest in protecting its children from pedophiles because the harms that it seeks to, eradicate “are real, not merely conjectural, and. the [statute] will in fact alleviate these harms in a direct and material way." Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622, 664 (1994). The statute was enacted because the Legislature recognized that pedophiles were using the Internet to harm minors by luring them into sexua! activity. Through this new medium, as demonstrated here. in Barrows, and in cases throughout the country,” pedophiles have been attempting to lure children into sexual activity through the transmission of child pornography and other sexually explicit materials. The statute alleviates these harms in a “direct and material way" by deterring pedophiles from using the Internet to engage in this conduct and by punishing them for attempting to lure a child into performing a sexual act. Not only is Penal Law § 235.22 necessary to further the State's compelling interest in protecting children from pedophiles, but it is narrowly tailored to effectuate that interest because it does not “unnecessarily interfer[e] with First Amendment freedoms." Sable Communications v. FCC, 492 U.S. at 126. Because both prongs of Penal Law § 235.22 must be satisfied, no protected ° See Amanda Garrett, Undercover Deputy Foils Chat Room Sex Scheme, Cleveland Plain Dealer, November 2, 1999 at Al (recounting numerous cases where cyber-pedophiles have attempted to lure police officers, posing as children, into sexual encounters, and noting that since 1995, the F.B.I. has investigated 3,000 “cases involving sexual exploitation of children on the Internet”). 32 A-263 sexual expression comes within the ambit of the statute unless the defendant uses the communications proscribed by statute as a vehicle to lure a child into sexual activity. Cf. Reno v. ACLU, 521 U.S. at 877. And because a state may lawfully regulate sexually explicit materials that are "harmful to minors" (see, Ginsberg v. New York, 390 USS. 629, 633 (1968)), prohibiting the transmission of such materials in the limited circumstance when a person seeks to use those communications to lure a child into Sexual activity does not "unnecessarily interfer[e] with First Amendment freedoms." Sable Communications v. FCC, 492 U.S. at 126. POINT TWO PENAL LAW § 235.22 DOES NOT VIOLATE THE COMMERCE CLAUSE EITHER FACIALLY OR AS APPLIED BECAUSE IT SERVES A COMPELLING STATE INTEREST WITHOUT UNDULY BURDENING INTERSTATE COMMERCE Penal Law § 235.22 protects New York's recognized compelling interest in Safeguarding the welfare of its children. Regulation of this type of criminal conduct is traditionally reserved to the States. See Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) ("Under our federal System, the ‘States possess ‘primary authority for defining and enforcing the criminal law"') (citations omitted)). The Commerce Clause does not prevent the State from Prosecuting individuals when they attempt to sexually exploit children in New York via the Internet. The Commerce Clause delegates to the federal government the power "[t]o regulate Commerce -.. among the several States. " U.S. Constitution, Art. I, , Ss, 3: Although the dormant Commerce Clause may forbid states from passing or enforcing A-264 laws that discriminate against or unduly burden interstate trade, Associated Industries of Missouri_v. Lohman, 511 U.S. 641, 646-47 (1994); Kassel _v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662, 669 (1981), the States nonetheless "retain authority under their general police power to regulate matters of ‘legitimate local concern,’ even though interstate commerce may be affected." Lewis v. BT Investment Mgrs, Inc., 447 U.S. 27, 36 (1980). In this case, defendant can raise no valid Commerce Clause challenge because the criminal activity regulated by Penal Law § 235.22 is a valid exercise of the State's police powers. Moreover, defendant's actions that subjected him to criminal prosecution were wholly intrastate, and had no impact at all on any interstate commerce. Finally, even if some prosecutions under this Statute might have a minimal connection to interstate commerce, any such burden is outweighed by New York's substantial interest in protecting its children from pedophiles. A. Penal Law § 235.22 is a Valid Exercise of the State's Police Powers Penal Law § 235.22 is a criminal statute that by its terms has nothing to do with commerce. Criminal conduct is an area over which the States have primary authority. See Brecht _v. Abrahamson, 507 U.S. at 635. It would constitute a serious departure from established precedent to deem criminal activity, especially directed toward children, a form of "commerce" protected by the Constitution. United States v. Lopez, 514 U.S. 549, 567 (1995) (distinguishing "congressional authority under the Commerce Clause" from a "general police power of the sort retained by the States"); General Motors Corp. v. Tracy, 519 U.S. 278, 299 (1997) (fundamental objective of the dormant Commerce > A-265 Clause is to "preserve a national market for competition"). As the Appellate Division correctly held in this case: [t]he 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 .... [W]e 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. People v. Foley, 257 A.D.2d 243, 253 (4th Dept. 1999). There is no valid reason that the State's traditional criminal authority cannot be extended to the Internet, even though the Internet may have some commercial uses. After all, states man prosecute individuals who commit crimes that occur on the interstate highways, see People v. Cooper, 90 N.Y.2d 292 (1997) (driving while intoxicated); People v. Cooper, 78 N.Y.2d 476 (1991) (vehicular manslaughter); People v. Kibbe, 35 N.Y.2d 407 (1974) (robbery and murder on highway), or through the use of a telephone. See Peopie v. Bell, 73 N.Y.2d 153 (1989) (bribery through use of telephone); People v. Shack, 86 N.Y.2d 529 (1995) (aggravated harassment via telephone). See also People v. Broady, 5 N.Y.2d 500, 509-10 (1959) (New York statute that proscribed wiretapping withstood a dormant Commerce Clause Challenge because the statute was not "an attempted regulation of telephonic communications, but simply was a ‘local police measure’ designed to protect the People of this State against unwarranted intrusions into their privacy"). The Internet is not significantly different from these other instrumentalities of commerce -- the highways or the telephones -- so as to remove it entirely from state criminal 35 A-266 regulation when it is used to effectuate a crime, especially a crime against children. Moreover, even though the Internet may, in some circumstances, be used as an instrumentality of commerce, Penal Law § 235.22 has little or no connection to any type of commercial activities within the traditional sweep of the Commerce Clause. As discussed in Point One, supra, this statute specifically targets only. those individuals who use the Internet to transmit sexually explicit materials in an effort to lure children into illegal sexual activity. Not only is this an area in which New York has a special local interest, Globe Newspaper Co., 457 U.S. at 607, but it also is an area that deserves no "economic" protection. Cf. New York v. Ferber, 458 U.S. 747, 757-63 (1982) (states may bar distribution of child pornography even when produced in other states); see also Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993) (state law against display of obscenity to children did not violate the Commerce Clause). And although the Commerce Clause bars economic protectionist regulation, it is not economic "protectionism" for states to ban "traffic in noxious articles, whatever their origin." Philadelphia v. New Jersey, 437 U.S. 617, 629 (1978). Nor is there any reason for this Court to find that Penal Law § 235.22 is unconstitutional merely because the district court, in American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997), invalidated on Commerce Clause grounds a related statute, Penal Law § 235.21(3), which made it a crime to send a sexually explicit depiction to a minor over the Internet. The decision of this lower federal court is not binding on this Court. See People v. Kin Kan, 78 N.Y.2d 54, 60 (1991). Moreover, the ALA court itself recognized that 235.22 differs materially from the Statute invalidated in that decision. Penal Law § 235.21(3) prohibited the online transmission of sexually explicit materials to A-267 minors. By contrast, 235.22 requires that the State prove the elements of the ALA statute and also prove that the defendant tried to lure a minor into engaging in sexual activity with him or for his benefit. This additional requirement effectively removes legitimate communications from the statute's reach -- a concern that troubled the ALA court, see 969 F. Supp. at 179-81 -- by focusing on the actual sexual exploitation of children. Indeed, ALA expressly distinguished 235.22 from the Statute it invalidated on precisely this basis: Moreover, 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 b communicating with them via the Internet. See N.Y. Penal Law § 235.21(1); N.Y. Penal Law § 235.22(2). The local benefit to be derived from the Challenged section of the Statute is therefore confined to that narrow class of cases that does not fit within the parameters of any other law. ALA v. Pataki, 969 F.Supp. at 179 (emphasis added). Given that the ALA court itself recognized that its holding did not reach the statute at issue here, the case Supports the State's position, rather than petitioner's. Given the State's traditional criminal authority, this Court Should find that Penal Law § 235.22's regulation of criminal activity on the Internet is not prohibited under the Commerce Clause. Indeed, any decision to the contrary is anathema to the Supreme Court's warning against "pil[ing] inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of 37 A-268 the sort retained by the states" (Lopez, 514 U.S. at 567), and is contrary to this State's recognized power to protect its children from sexual abuse. B. A Commerce Clause Challenge is Inappropriate in this Case, which Involved Purely Intrastate Communications Not only does Penal Law § 235.22 constitute a legitimate exercise of the State's police powers, but a Commerce Clause challenge is inappropriate here because the relevant conduct is wholly intrastate. Even if there might be some circumstances in which Penal Law § 235.22 might have a minimal impact on interstate activity (see subpoint C, infra), that is not the case here. Defendant was convicted for criminal conduct that occurred wholly within the State of New York. Thus, even if every Internet communication between persons in different states were deemed inviolate from state regulation, defendant could not be heard to complain that his.rights or the federal government's authority to regulate were infringed by New York. A party generally cannot challenge the constitutionality of a statute unless he is aggrieved by its particular application to him. As the Supreme Court stated in Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973), "embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a Statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before A-269 the Court." See also Electrolert Corporation v. Bury, 737 F.2d 110, 144 (D.C. Cir. 1984),?! This Court has refused to review a Commerce Clause challenge when a purely domestic entity attempts to claim injury on behalf of out-of-state Parties. For instance, in O'Kane v. State of New York, 283 N.Y. 439, 449 (1940), the Court declined to address a Commerce Clause challenge, Stating: The constit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1190%3A2. Public record. Not legal advice.