People v. Foley

OPINION OF THE COURT

The main issue in this appeal focuses on the constitu

In October 1996, a State Trooper assigned to the Computer Crime Unit logged onto the Internet and entered a chat room entitled “KidsofFamilySex.” The Trooper used the screen name “Aimee_” and began a discussion with defendant, Thomas R. Foley, Sr., who was using the screen name “JustMee.” JustMee inquired whether Aimee_wanted to “chat sex?” Aimee_ answered “OK,” identifying herself as a 15-year-old girl who had sex with her father. JustMee identified himself as a 51-year-old male. The conversation lasted approximately two hours and was almost exclusively about sex. JustMee asked Aimee_how she enjoyed having sex with her father, described how he would have sex with her and encouraged her to masturbate during their conversation. Aimee_mentioned that she lived in Utica and JustMee informed her that he lived near Buffalo. During the conversation, JustMee sent several pictures to Aimee_of “preteen girls and men” engaging in sexual acts.

During November 1996, JustMee had three other private online chats with Aimee__In each conversation Aimee_ indicated that she was 15 years old. The conversations centered around sex; JustMee would encourage Aimee_to masturbate and to describe having sex with her father. He said that he wanted to have sex with her, described how he would do so, and sent her pictures of minors engaging in sexual acts with other minors and with adults. In their third conversation, JustMee expressed his interest in meeting Aimee_but cautioned that they would have to be careful. Aimee_answered that she had cousins in Buffalo and that she could possibly arrange a visit. During their fourth conversation, JustMee again discussed their meeting, stating that they would have to be discreet and make the arrangements ahead of time. The discussion turned to the possibility of meeting over Thanksgiving weekend.

The police obtained the identity of JustMee when they served a subpoena on the Internet service provider. As JustMee and

Defendant was indicted on three counts of promoting an obscene sexual performance by a child (Penal Law § 263.10), three counts of promoting a sexual performance by a child (Penal Law § 263.15), three counts of obscenity in the third degree (Penal Law § 235.05 [1]) and two counts of attempted disseminating indecent material to minors in the first degree (Penal Law §§ 110.00, 235.22 [1], [2]). Prior to trial, defendant moved to dismiss the indictment on several grounds, among them that the statute defining each count of the indictment was unconstitutional. County Court denied the motion.

During trial, defendant introduced the testimony of a computer expert who explained that with current technology, computer images could be easily manipulated. Of the many graphics sent by defendant to Aimee_, however, the expert could only point to one that appeared as if it had been altered. The jury was permitted to examine the pictures and was instructed as follows:

“Section 263.25 of the Penal Law of the State of New York reads: Whenever it becomes necessary, for the purposes of the article, to determine whether a child who participated in a sexual performance was under the age of 16 years, the Court or jury may make such determination by any of the following: Personal inspection of the child, inspection of a photograph or motion picture which constituted the sexual performance, oral testimony by a witness to the sexual performance as to the age of the child based upon the child’s appearance, expert medical testimony based upon the appearance of the child in the sexual performance, and any other method authorized by any applicable provision of law or by the rules of evidence at common law.”

The jury found defendant guilty of two counts of promoting a sexual performance by a child and two counts of attempted disseminating indecent material to minors in the first degree.

The Appellate Division unanimously affirmed the conviction, holding that Penal Law § 235.22 is constitutional. The Court

Penal Law § 235.22 provides:

“A person is guilty of disseminating indecent material to minors in the first degree when:

“1. Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sadomasochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor-, and

“2. By means of such communication he importunes, invites or induces a minor to engage in sexual intercourse, deviate sexual intercourse, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit [emphasis added].”

Our analysis in this appeal focuses on two requirements that must be established before an individual can be subjected to criminal liability under the statute. First, an individual must intentionally use a computer system to initiate or engage in the transmission of actual or simulated depictions of sexual activity for the purpose of communicating with a minor, knowing the character and content of such communication (Penal Law § 235.22 [1]). The communication must be “harmful to

Defendant contends that constitutionally protected speech among adults on the Internet may be affected by the statute because the statute does not require an individual “know” that he or she is communicating with a minor. For example, a “chat room” participant who sends a sexually explicit graphic image file with an accompanying message inviting other “chat room” participants to get together for lawful sexual activities runs the risk that a minor may have access to the “chat room” and receive the transmission. Such a participant, according to defendant, could thus be exposed to criminal liability.

Penal Law § 235.22 (1) provides that a person is guilty of disseminating indecent material to a minor if, knowing the content of the communication, he “intentionally” uses any communication system to initiate or engage in such communication with a person who is a minor. The placement of the word “intentionally” in Penal Law § 235.22 (1) should be read to modify everything that follows. Where a statute contains only one reference to a particular mental state (such as “intentionally”), there is a presumption that the mental state applies to “every element of the offense unless an intent to limit its application clearly appears” (Penal Law § 15.15 [1]). Thus, contrary to defendant’s assertion, the statute should be

Defendant suggests that the legislative history of Penal Law § 235.22 indicates that the statute was not to be so circumscribed. We conclude that the statute provides for the mental state of “intent” to limit the proscribed conduct. As one of the sponsors of the legislation stated, “[t]he purpose of this bill is [to] deter individuals who would use computer networks to lure children into sexual relations by intentionally transmitting indecent materials to children through the-computer networks. The bill would not hold liable a computer network or other individual who did not intentionally transmit the materials to minors” (Letter from Senator Sears to Governor, July 11, 1996, Bill Jacket, L 1996, ch 600).

Finally, we reject defendant’s assertion that the term “harmful to minors” found in Penal Law § 235.22 (1) is over-broad because it allows New York to impose its community standards nationwide. The term “harmful to minors” is specifically defined according to the guidelines enunciated by the Supreme Court in Miller v California ( 413 US 15 , 24) and is further limited to actual or simulated “nudity,” “sexual conduct” or “sado-masochistic abuse” (see, Penal Law § 235.22 [1]; § 235.20 [2], [3], [5]). It is difficult to envision a situation where this conduct would not be considered harmful to minors outside New York when the statute seeks specifically to prohibit the intentional dissemination of this type of material to a minor in conjunction with the sender’s enticement or invitation to the child to engage in sexual activity.

In short, the legitimate reach of Penal Law § 235.22 outweighs its “arguably impermissible applications” (New York v Ferber, supra, 458 US 747 , 773). Thus, we conclude that the statute is not substantially overbroad.

Vagueness

Defendant also challenges Penal Law § 235.22 as unconstitutionally vague, arguing that the luring prong of Penal Law § 235.22 (2) defines the prohibited conduct in unacceptably ambiguous terms. According to defendant, the phrase “importunes, invites or induces” and the phrase “sexual conduct for his benefit” not only fail to provide adequate notice of what is prohibited but also permit the arbitrary and discriminatory application of the law by both law enforcement

A statute is unconstitutionally vague if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, and it is written in a manner that permits or encourages arbitrary or discriminatory enforcement (Grayned v City of Rockford, 408 US 104 , 108; see also, People v Shack, 86 NY2d 529 , 538-539; People v Bright, supra, 71 NY2d, at 382 ). A vague law impermissibly delegates basic policy matters to law enforcement officials, Judges and juries for resolution on an ad hoc, subjective basis “with the attendant dangers of arbitrary and discriminatory application” (Grayned v City of Rockford, supra, 408 US, at 109 ). However, imprecise language does not render a statute fatally vague so long as that language “ ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices’ ” (People v Shack, supra, 86 NY2d 529 , 538, citing United States v Petrillo, 332 US 1 , 8).

In Reno, the major defect of the Communications Decency Act was its vagueness. Absent any definitions for the terms “indecent” and “patently offensive,” the Act lacked the precision that the First Amendment requires when a statute regulates the content of speech ( 521 US, at 874 ). The Supreme Court noted that the open-ended nature of the proscribed material added to the threat that the statute would censor speech that, in fact, would fall outside its scope (id.).

Unlike the terms “indecent” or “patently offensive” held to be vague in the Communications Decency Act, each and every term of Penal Law § 235.22 is either defined in the Penal Law or has a plain and ordinary meaning (see, Penal Law § 235.20). The term “benefit” as used in “for his benefit” is defined as “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary” (Penal Law § 10.00 [17]). While “importune,” “invite” and “induce” are not defined terms, a person of ordinary intelligence would reasonably know that the statute is meant to prevent the intentional luring of minors to engage in sexual conduct through the dissemination of harmful, sexual images.

Moreover, we find no possibility of arbitrary or discriminatory enforcement of the statute. The combination of the precise terms described in the statute and the clearly pronounced elements “adequately defines the criminal conduct for the police

Content-Based Restriction

In addition to contesting the validity of Penal Law § 235.22 on First Amendment overbreadth and vagueness grounds, defendant asserts that the statute is an unconstitutional content-based restriction. Because Penal Law § 235.22 proscribes “sexually oriented” communications, defendant maintains that it is an impermissible regulation on speech.

Content-based speech restrictions are presumptively invalid and will not survive strict scrutiny unless the government can show that the regulation promotes a compelling State interest and that it chose the least restrictive means to further the articulated interest (see, Sable Communications v Federal Communications Commn., 492 US 115 , 126; Boos v Berry, 485 US 312 , 321; see also, People ex rel. Arcara v Cloud Books, 68 NY2d 553 , 559).

Sexually explicit communication is affected by the statute and thus the statute is content-based (see, Reno v American Civ. Liberties Union, supra, 521 US 844 , 868); Penal Law § 235.22 prohibits the dissemination of a certain category of images to minors (Penal Law § 235.22 [1]). The justification for the statute is related to the impact on the minor listener and cannot be properly analyzed as a content-neutral, time, place and manner restriction (Reno v American Civ. Liberties Union, supra, at 868; compare, City of Erie v Pap’s A.M., — US —, 120 S Ct 1382 , 1391). We nevertheless hold that Penal Law § 235.22 survives First Amendment strict scrutiny, because as noted earlier, it curtails the use of speech in a way which does not merit First Amendment protection and is a carefully tailored means of serving a compelling State interest (see, New York v Ferber, supra, 458 US 747 , 773).

The primary legislative purpose behind the statute is “to protect the children of this State from high-tech cybersex abuse and actual sexual abuse” (Governor’s Mem approving L 1996, ch 600, 1996 McKinney’s Session Laws of NY, at 1901). The State plainly has a “compelling” interest in protecting children

The speech-conduct sought to be prohibited by Penal Law § 235.22 — the endangerment of children through the dissemination of sexually graphic material over the Internet— does not merit First Amendment protection. In any event, the statute does not effectuate a total ban on the dissemination of sexual content communication, but merely limits its use (compare, City of Erie v Pap’s A.M., supra, — US —, 120 S Ct 1382 , 1392-1393; Sable Communications v Federal Communications Commn., supra, 492 US 115 , 129). Although the statute may incidentally burden some protected expression in carrying out its objective, Penal Law § 235.22 serves the compelling interest of preventing the sexual abuse of children and is no broader than necessary to achieve that purpose (see, People ex rel. Arcara v Cloud Books, supra, 68 NY2d 553 , 558).

The Commerce Clause

Defendant’s final assault on Penal Law § 235.22 is premised on the Commerce Clause. Relying on a recent Federal court de cision — American Libs. Assn. v Pataki ( 969 F Supp 160 [SD NY]) — defendant contends that Penal Law § 235.22 unduly burdens interstate trade.

In American Libs., the court struck down Penal Law § 235.21 (3) as a violation of the Commerce Clause. Penal Law § 235.21 (3) prohibits sending a sexually explicit depiction to a minor over the Internet. Because the Internet represents an instrument of interstate commerce, the court deemed Penal Law § 235.21 (3) to be “closely concerned with interstate commerce, and scrutiny of the [statute] under the Commerce Clause” was therefore “entirely appropriate” (id., at 173). The court

Penal Law § 235.22 does not discriminate against or burden interstate trade; it regulates the conduct of individuals who intend to use the Internet to endanger the welfare of children. Although Penal Law § 235.22 contains some of the same language as the provision in Penal Law § 235.21 (3) struck down in American Libs., the statute challenged here contains the additional “luring” prong. We are hard pressed to ascertain any legitimate commerce that is derived from the intentional transmission of sexually graphic images to minors for the purpose of luring them into sexual activity. Indeed, the conduct sought to be sanctioned by Penal Law § 235.22 is of the sort that deserves no “economic” protection (see, New York v Ferber, supra, 458 US 747 , 761-762). Thus, we conclude that Penal Law § 235.22 is a valid exercise of the State’s general police powers (see, Lewis v BT Inv. Mgrs., 447 US 27 , 36).

Finally, we address defendant’s constitutional challenge to Penal Law § 263.15, which prohibits promoting a sexual performance by a child. Although the Supreme Court in New York v Ferber (supra, 458 US 747 ) has held that Penal Law § 263.15 is not unconstitutionally overbroad, defendant attempts to revisit the matter. Defendant notes that today’s computer technology permits the manipulation of images such that the concerns addressed in Ferber regarding the harm caused to children as a result of the production of sexual performances are not presented here. Defendant argues that in the absence of an express instruction from the trial court that the People must prove the actual use of children in the prohibited performances, the statute is fatally overbroad.

Penal Law § 263.15 prohibits the promotion of any performance which includes sexual conduct by a child younger than 16 years of age. In Ferber, the Supreme Court held that the value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct was de minimis ( 458 US, at 762 ). Since this class of material bears heavily on the welfare of children, in the balance of competing interests, “it is permissible to consider these materials as

We are unpersuaded by defendant’s speculative and broad reading of Penal Law § 263.15. Defendant fails to demonstrate any real or substantial overbreadth to invalidate the statute.

The statutory scheme allows the fact finder to make a determination on the evidence submitted whether the performance involves an individual under the age of 16 (Penal Law § 263.25). In this case, defendant was permitted to introduce expert testimony challenging whether the images transmitted by defendant to Aimee_actually depicted children or had been digitally spliced to “manufacture” the picture of a child performing a sexual act. Of the many images transmitted by defendant to Aimee_, defendant’s expert could point to only one that may have been digitally altered. Defendant did not object to the trial court’s charge on Penal Law § 263.25. The jury was thus instructed to consider, from the evidence before it, whether or not a child who participated in the performance was under the age of 16. Under these circumstances, we cannot conclude that, as applied to defendant, the statute is unconstitutionally overbroad. We reject defendant’s remaining contentions.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Rosenblatt concur.

Order affirmed.