People v. Duboy
| Citation | 540 N.Y.S.2d 905,150 A.D.2d 882 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Dennis J. DUBOY, Appellant. |
| Decision Date | 11 May 1989 |
| Court | New York Supreme Court — Appellate Division |
Bernard H. Bryan, Albany, for appellant.
Sol Greenberg, Dist. Atty. (Michael J. Connolly, of counsel), Albany, for respondent.
Before MAHONEY, P.J., and KANE, WEISS, LEVINE and HARVEY, JJ.
Appeals (1) from a judgment of the County Court of Albany County (Harris, J.), rendered January 10, 1986, convicting defendant upon his plea of guilty of the crimes of use of a child in a sexual performance and sodomy in the second degree, and (2) by permission, from an order of said court, entered February 29, 1988, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Following allegations that he performed sexual acts with and photographed nude children, and the discovery at his apartment pursuant to a search warrant of various books, magazines and photographs of nude children performing sexual acts, defendant was charged in two indictments with various sex crimes. As part of a negotiated plea agreement to satisfy the indictments, defendant pleaded guilty to single counts of use of a child in a sexual performance and sodomy in the second degree. He was sentenced as a second felony offender to concurrent terms of incarceration of 7 1/2 to 15 years for use of a child in a sexual performance and 3 1/2 to 7 years for sodomy. Defendant appeals from this judgment of conviction, as well as from an order denying his motion to vacate the judgment on the grounds that, inter alia, he was denied effective assistance of counsel and Penal Law § 263.05 is unconstitutionally overbroad and violative of his privacy rights. We affirm the judgment and order.
Under Penal Law § 263.05, a person is guilty of use of a child in a sexual performance if "knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance". A sexual performance is "any performance or part thereof which includes sexual conduct by a child less than sixteen years of age" (Penal Law § 263.00[1] ). A performance is limited to "any play, motion picture, photograph or dance" and includes "any other visual representation exhibited before an audience" (Penal Law § 263.00[4] ). Sexual conduct is defined as "actual or simulated sexual intercourse, deviate sexual intercourse, sexual beastiality [sic ], masturbation, sado-masochistic abuse, or lewd exhibition of the genitals" (Penal Law § 263.00[3] ). Defendant, at his plea allocution, admitted photographing a child less than 16 years of age who was masturbating, activity not seriously challenged as being within the scope of this statute.
Defendant's primary claim is essentially that acts within the statute performed in the privacy of one's residence, as distinguished from those performed by commercial child pornographers, are entitled to constitutional protection. We cannot agree. In People v. Keyes (141 A.D.2d 227, 230-231, 535 N.Y.S.2d 162, lv. granted 73 N.Y.2d 979, 540 N.Y.S.2d 1013, 538 N.E.2d 365 [1989] ), we recently rejected a similar argument in a challenge to the constitutionality of Penal Law § 263.15 and recognized that the State's compelling interest in regulating child pornography is not dependent on whether the material is distributed commercially or possessed privately since the focus is on the harm to the child. This logic is equally applicable to Penal Law § 263.05 which, therefore, is not...
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