People v. Foley
| Decision Date | 11 April 2000 |
| Citation | 94 N.Y.2d 668,709 N.Y.S.2d 467,731 N.E.2d 123 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS R. FOLEY, SR., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, L. L. P., Buffalo (Roger W. Wilcox, Jr., and Paul J. Cambria, Jr., of counsel), for appellant.
Michael A. Arcuri, District Attorney of Oneida County, Utica (William M. Weber of counsel), for respondent.
Eliot Spitzer, Attorney General, New York City (Preeta D. Bansal, Robin A. Forshaw, Mark H. Levine and James M. Hershler of counsel), in his statutory capacity under Executive Law § 71.
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 overbroad and vague, that it is a content-based restriction that cannot survive strict 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 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 on-line chats with Aimee_. In each conversation Aimee_ indicated that she was 15 years old. The conversations centered around sex; JustMee would encourage Aimee_ to masturbate and to describe having sex with her father. He said that he wanted to have sex with her, described how he would do so, and sent her pictures of minors engaging in sexual acts with other minors and with adults. In their third conversation, JustMee expressed his interest in meeting Aimee_ but cautioned that they would have to be careful. Aimee_ answered that she had cousins in Buffalo and that she could possibly arrange a visit. During their fourth conversation, JustMee again discussed their meeting, stating that they would have to be discreet and make the arrangements ahead of time. The discussion turned to the possibility of meeting over Thanksgiving weekend.
The police obtained the identity of JustMee when they served a subpoena on the Internet service provider. As JustMee and Aimee_, in their fifth on-line conversation, discussed where they could meet in Buffalo, the police executed a no-knock search warrant at defendant's residence and found him typing at his computer. Defendant admitted that he had used the screen name JustMee and had several chats with Aimee_, whom he believed to be 15 years old.
Defendant was indicted on three counts of promoting an obscene sexual performance by a child (Penal Law § 263.10), three counts of promoting a sexual performance by a child (Penal Law § 263.15), three counts of obscenity in the third degree (Penal Law § 235.05 [1]) and two counts of attempted disseminating indecent material to minors in the first degree (Penal Law §§ 110.00, 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 noted that Penal Law § 235.22 is a precise means of accomplishing the Legislature's objective to protect children from sexual abuse by prohibiting the dissemination of graphic images to a minor depicting nudity, sexual conduct or sadomasochistic abuse that is "harmful to minors," and the use of that material to lure the minor to engage in sexual activity. The Court determined that Penal Law § 235.22 is neither impermissibly vague nor overbroad. The Court further determined that the statute met First Amendment standards as a carefully drawn means of serving a compelling State interest. Finally, the Court concluded that the statute did not violate the Commerce Clause and rejected defendant's contention that Penal Law § 263.15 is unconstitutionally overbroad. We affirm.
Penal Law § 235.22 provides:
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 minors" as defined by Penal Law § 235.20 (6).1 Second, the statute requires that an individual must "[b]y means of such communication" importune, invite or induce the minor to engage in sexual activity for his or her benefit (Penal Law § 235.22 [2]). The statute was enacted to address the growing concern that pedophiles are using the Internet as a forum to lure children (see, Governor's Mem approving L 1996, ch 600, 1996 McKinney's Session Laws of NY, at 1900-1901).
As a preamble to our analysis, we note that an enactment of the Legislature, a coequal branch of government, is presumed to be valid, and that one seeking to invalidate a statute bears the heavy burden of showing that it is unconstitutional (People v Bright, 71 NY2d 376, 382; People v Davis, 43 NY2d 17, 30).
Defendant contends that, on its face, Penal Law § 235.22 is overbroad because it exposes individuals to criminal liability who unintentionally address a minor through sexually oriented communication. We reject defendant's challenge.
As a general rule, a court will not hear a challenge to a statute from a person to whom the statute may be constitutionally applied on the ground that its application to others, not before the court, may possibly impair their constitutional rights (New York v Ferber, 458 US 747, 767; Broadrick v Oklahoma, 413 US 601, 610; see also, People v Hollman, 68 NY2d 202, 208). An exception has been carved out in the area of the First Amendment.
It has been recognized that "statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society" (Broadrick v Oklahoma, supra, 413 US 601, 611-612). Thus, a statute that attempts to proscribe constitutionally protected speech will not be enforced unless a limiting construction effectively removes the apparent threat to constitutionally protected expression (id., at 613).
A statute is subjected to less scrutiny where the behavior sought to be...
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