People v. Foley

• Decision Date: 18 June 1999
• Citation: 692 N.Y.S.2d 248,257 A.D.2d 243
• Parties: , PEOPLE of the State of New York, Plaintiff-Respondent, v. Thomas R. FOLEY, Sr., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 248

692 N.Y.S.2d 248

257 A.D.2d 243, PEOPLE of the State of New York, Plaintiff-Respondent, v. Thomas R. FOLEY, Sr., Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 18, 1999.

Hebert Greenman, Buffalo, for defendant-appellant.

William Weber, for plaintiff-respondent.

PRESENT: PINE, J.P., HAYES, PIGOTT, JR., SCUDDER and BALIO, JJ.

HAYES, J.:

Defendant appeals from a judgment convicting him following a jury trial of two counts each of promoting a sexual performance by a child (Penal Law § 263.15) and attempted disseminating indecent material to minors in the first degree (Penal Law §§ 110.00, 235.22). Defendant challenges the constitutionality of Penal Law § 235.22 and contends that alleged errors that occurred during trial require reversal. The judgment should be affirmed.

I

Defendant had a computer equipped with a modem and software to enable him to gain access to the Internet. The Internet links computer users from across the world via an international network (see, Reno v. American Civ. Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874). Individuals gain access to the Internet through various avenues, including Internet service providers such as America Online, CompuServe, the Microsoft Network and Prodigy (see, Reno v. American Civ. Liberties Union, supra, at 850, 117 S.Ct. 2329). An individual may obtain and transmit text, sound, pictures, and moving video images using various methods. One of those methods is the use of a "chat room". In a chat room, individuals engage in real-time dialogue, i.e., when a message is typed, it appears almost immediately on the computer screen of other individuals in the chat room. In addition, an individual can send pictures to another individual in the chat room. The chat rooms foster an exchange of information or ideas on a particular topic. Two individuals may break away from the main chat room to have a private chat. Individuals in the chat room use "screen names" of their choosing.

The Internet allows millions of individuals to gain access to a wide variety of educational and entertainment material. While the Internet has innumerable benefits, it also has some negative aspects. Pedophiles have used the Internet to engage in sexually explicit communications with minors and then have attempted to arrange sexual encounters with those minors (see, Governor's Mem. approving L. 1996, ch. 600). Penal Law § 235.22 was enacted to prevent the abuse of children over the Internet and provides as follows:

"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 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."

There are four affirmative defenses to a prosecution under Penal Law § 235.22:

"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:

(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"

(Penal Law § 235.23 ).

II

A State Trooper assigned to the Computer Crime Unit logged onto the Internet on October 28, 1996 and entered a chat room entitled "KidsofFamilySex". The Trooper used the screen name "Aimee". Also in the chat room was a computer user, later identified as defendant, who used the screen name "JustMee". JustMee and Aimee engaged in a private chat. JustMee asked Aimee "Weana [sic] chat sex?", and Aimee answered "OK". Aimee identified herself as a 15-year-old girl who had sex with her father, while JustMee identified himself as a 51-year-old male. The conversation lasted approximately two hours, and was almost exclusively about sex. JustMee asked Aimee whether she had ever masturbated and how she liked having sex with her father. JustMee described how he would have sex with her, and encouraged Aimee to masturbate during their conversation. Aimee said that she lived in Utica, while JustMee said that he lived on Grand Island near Buffalo. During the conversation, JustMee sent a few pictures to Aimee of "preteen girls and men" engaging in sexual acts.

JustMee had three other private chats with Aimee during the period from November 12 through 20, 1996. Each conversation lasted at least two hours, and each time Aimee indicated that she was 15 years old. Each conversation centered around sex; JustMee would encourage Aimee to masturbate and to describe having sex with her father. JustMee told Aimee that he wanted to have sex with her and described how he would do so. JustMee sent Aimee more pictures of minors engaging in sexual acts with other minors and with adults. During the third conversation, JustMee described where he lived and said that he wished they could meet, but that they would have to be careful if they did meet. Aimee said that she had cousins in Buffalo and could possibly make the trip to Buffalo. During the fourth conversation, JustMee again discussed meeting with Aimee; he said that they would have to be discreet and meet in a parking area at night. JustMee said they would need to make arrangements ahead of time, and they discussed the possibility of meeting over Thanksgiving weekend.

The police obtained the identity of JustMee by service of a subpoena on the Internet service provider. On November 22, 1996, JustMee and Aimee engaged in their fifth on-line conversation. They discussed where they could meet in Buffalo. During that conversation, the police executed a no-knock search warrant at defendant's residence and found defendant 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.

III

Defendant contends that Penal Law § 235.22 is unconstitutionally overbroad and vague, that it is a content-based restriction that cannot survive strict scrutiny, and that it violates the Commerce Clause. Kings County Supreme Court is the only court to have addressed the constitutionality of the statute. Ruling on a defendant's pretrial motion to dismiss, the court (Marrus, J.) found that the statute was not unconstitutionally vague or overbroad and did not violate the Commerce Clause (see, People v. Barrows, 174 Misc.2d 367, 372-373, 664 N.Y.S.2d 410). After a jury trial, Barrows was found guilty of two counts of attempted disseminating indecent material to minors in the first degree (Penal Law §§ 110.00, 235.22) and one count of promoting an obscene sexual performance by a child (Penal Law § 263.10). He then moved, pursuant to CPL 330.30, to set aside the verdict on the ground that the statutes are unconstitutional and violate the First Amendment and the Commerce Clause. This time, the court (Demarest, J.) agreed with Barrows with respect to Penal Law § 235.22 and set aside the verdict with respect to those counts (People v. Barrows, 177 Misc.2d 712, 677 N.Y.S.2d 672). We conclude that Penal Law § 235.22 is not unconstitutional.

State statutes carry a strong presumption of constitutionality and should be stricken as unconstitutional only as a last resort (see, People v. Davis, 43 N.Y.2d 17, 30, 400 N.Y.S.2d 735, 371 N.E.2d 456, rearg. dismissed 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232, cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88). "The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court" (New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 73 L.Ed.2d 1113). The First Amendment overbreadth doctrine is, however, one of the few exceptions to that general principle (see, New York v. Ferber, supra, at 768, 102 S.Ct. 3348). Thus, defendant may attack an overly broad statute even though, as here, his conduct "could be proscribed by a law drawn with the requisite specificity" (New York v. Ferber, supra, at 769, 102 S.Ct. 3348; see, Alexander v. United States, 509 U.S. 544, 555, 113 S.Ct. 2766, 125 L.Ed.2d 441, reh. denied 510 U.S. 909, 114 S.Ct. 295, 126 L.Ed.2d 244).

The overbreadth doctrine is to be applied sparingly and only as a last resort (see, Broadrick v. Oklahoma, 413 U.S. 601, 613, 93...