People v. Barrows
| Decision Date | 09 June 1998 |
| Citation | 677 N.Y.S.2d 672,177 Misc.2d 712 |
| Parties | , 1998 N.Y. Slip Op. 98,429 The PEOPLE of the State of New York, Plaintiff, v. James BARROWS, Defendant. |
| Court | New York Supreme Court |
Michael Harrison, New York City, for defendant.
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Adam Zion and Melissa Jackson of counsel), for plaintiff.
Defendant James Barrows was convicted following a lengthy jury trial of one count of Promoting an Obscene Sexual Performance by a Child in violation of Penal Law § 263.10 and two counts of Attempted Disseminating Indecent Material to Minors in the First Degree in violation of Penal Law § 110/235.22. Defendant has moved, pursuant to Criminal Procedure Law § 330.30(1), to set aside the verdict asserting that the statutes at issue are unconstitutional and violate the First Amendment and the Commerce Clause of the United States Constitution and that an appellate court would therefore be required to reverse as a matter of law. Defendant relies specifically upon the recent decision of the United States Supreme Court inReno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (hereafter "Reno"), and the decision from the Southern District of New York in American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y., 1997) (hereafter "American Libraries"). The arguments raised upon this motion were previously considered in the context of an Omnibus Motion early in the litigation by my colleague Justice Alan Marrus who denied the motion to dismiss upon the constitutional challenge. People v. Barrows, 174 Misc.2d 367, 664 N.Y.S.2d 410 (1997). Based upon the voluminous evidence adduced at trial before this Court, however, it is necessary to reconsider this argument. 1
This case involves the use of the Internet as a means by which Defendant James Barrows, operating from his personal computer in Madison, Connecticut, solicited an individual represented to be a thirteen-year-old female in Brooklyn for sexual purposes. The prosecution arose out of a "sting" operation initiated by the District Attorney of Kings County and the New York City Police Department to locate and apprehend purveyors of child pornography through the Internet.
In May of 1996, Deputy Inspector Robert Hayes, the Commanding Officer of the Detective Bureau assigned to the Kings County District Attorney's Office on Joralemon Street in Brooklyn, initiated an investigation into the use of the Internet by pedophiles as a means to gain access to child pornography and to vulnerable children themselves for the purpose of engaging them in pornographic communication and actual sexual activities. Using a fictitious identity as "Tori 83," a thirteen-year-old female named Victoria, born November 24, 1982, Inspector Hayes opened an account with America Online, a provider of access to the Internet, as well as computer products of its own design. Through America Online, Inspector Hayes was able to access "cyberspace" and enter "chat rooms" for "real-time" "conversations" with people all over the world. In addition to these "chats," in which up to 23 people are able to communicate simultaneously through typed messages which appear on a common screen visible to all participants, the participants are also able to send private "instant messages" to each other which are not visible to all, and may also send e-mail to any individual whose "address" on the Internet is known. 2 Also available are private "chat rooms" which are established by individual users who may invite others to enter but which may not be otherwise accessed. 3
Inspector Hayes began his investigation by entering the America Online "Pre-Teen Room" which provided a forum for "picture trading." It is unclear whether the participants are meant to be pre-adolescents or whether the photographs are meant to depict pre-adolescents or both. (The Pre-Teen Room has since been deleted from the services currently available through America Online). In his search for child pornography, Inspector Hayes would "log-on" during hours when children would be likely to use the computer: after 3:30 P.M. on weekdays and on weekends. As thirteen-year-old Tori, he received instant messages from hundreds of adult males from all over the country and the world. Enlisting the assistance of America Online to access subscriber information, he was able to obtain the geographical locations for the participants whose screen identities could well, like his own, be completely fictitious. By obtaining telephone numbers, usually from the computer user himself, pre-arranged calls were placed by female Detective Karen Gumbs to verify that the computer personality was actually an adult male. Detective Gumbs spoke with men in Washington, Oregon, Texas and New Jersey, as well as Defendant in Connecticut. The telephone conversations were sexually explicit and, much like the cyberchats in evidence, included offers to "teach" the purported adolescent concerning sexual activities and to meet with the teen female for such purpose.
Defendant James Barrows first contacted Tori 83 on August 21, 1996, in the "Pre-Teen Room" using the "screen name" "Captain Jake." Captain Jake sent Tori an instant message as follows:
Captain Jake: Hi from CT, MWM 39, you
Tori 83: Xcool, I'm much younger, but I don't care
Captain Jake: I like older girls. Do you like older men?
Tori 83: Does MWM mean married?
Captain Jake: Yes, it does.
Captain Jake: Married White male.
Captain Jake: What do you look like?
Captain Jake: Victoria, what a nice name.
Tori 83: I like older men because they know more.
Tori 83: I like Tori better.
Captain Jake: I know a lot and I am not just cyber. I like to meet.
To it's ot meet. [sic]
Captain Jake: What do you like to do, or are you a virgin?
Captain Jake: Okay, Tori it is.
Tori 83: That's cool. I only met one guy from the computer
before. It was really fun he was 26.
Captain Jake: What did you do with him?
Tori 83: Do you like younger girls?
Captain Jake: Yes, I do.
Captain Jake: Are you a cop?
Tori 83: Cool, we met on a friend boat. We had about five
hours together. He was from NJ.
Tori 83: I'm going to be 14 in November. You got to be
kidding.
Captain Jake: No, I am not kidding. There are a number of cops
online that want to arrest people who like younger
girls.
I have to go. I would love to get an e-mail from you
and we can make plans.
Captain Jake: Okay?
Captain Jake: Sorry, have to go. Can't wait, send e-mail. I am
real. We can have fun together.
Captain Jake: Please respond.
(People's Exhibit 3)
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Tori did not respond because, asInspector Hayes explained, he did not want to arouse Defendant's suspicions that he was "a cop" by appearing too eager.
The next contact with Defendant occurred on October 14, 1996, when Tori again received an instant message from Captain Jake while in the America Online Pre-Teen Room inviting her to "play" in a private chatroom, "XX Jake." The private "chat" continued for several pages, included very graphic descriptions of various sex acts and culminated in Defendant's providing his telephone number upon Tori's offer to telephone using a calling card. The conversation included Captain Jake's descriptions of prior sexual activities with his thirteen-year-old step-sister and a discussion of Tori's age, physical development and attendance in the eighth grade. Captain Jake declared, "I want to do you", but cautioned, "I can go to jail for having sex with a minor" (Exhibit 6).
On October 14, acting as Tori 83's voice, Detective Gumbs placed a telephone call to the number supplied by Captain Jake. The telephone was answered by a male who identified himself as Captain Jake. 4 Both Inspector Hayes and Detective Gumbs testified to the contents of the conversation during which Captain Jake said he was masturbating and gave Tori explicit instructions to do the same. Following Tori's confirmation that she was thirteen years old, Captain Jake said he wanted to meet her to engage in sex. Telephone records for the number called identified the subscriber as Defendant James Barrows of 75 Fawn Brook Circle, Madison, Connecticut. At 6:43 P.M., approximately four hours after the telephone conversation, Tori received e-mail from Captain Jake thanking her for the call and reiterating his desire to meet her for "real," as opposed to phone, sex indicating, "Of course, after we meet, I will want to do a lot more than chat, but we must start with a meeting to find out what will happen"(Exhibit 7). This communication also included very graphic details of just what he expected "to do" and closed, "Erotically yours, Captain Jake." The telephone call of October 14 was the only live contact between "Tori" and Defendant prior to their meeting on December 23, 1996.
People's Exhibit 35 is Captain Jake's "profile" printed out on December 13, 1996, as follows:
Member number Jake. Dominant MWM. 5' 10"', 175 pounds, seven and-a-half inches, dark blond, blue, location New Haven County, Connecticut USA.
Travel all of North East, Birthdate: 2/17, 39 plus. Sex: Male. Marital status: Married. Computers PC. Hobbies: AOL, sailing, wine, realtime. Erotic. Creative. Sensuous sex. D/S, B/D. 5
Occupation: Management consultant. Spend nights in motels, come and visit.
Personal quote: Only sailors get blown off shore. I am a sailor.
Inspector Hayes did not receive D...
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