People v. Fraser

• Decision Date: 16 February 2000
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>PAUL FRASER, Appellant.
• Court: New York Supreme Court — Appellate Division

264 A.D.2d 105

704 N.Y.S.2d 426

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.PAUL FRASER, Appellant.

February 16, 2000.

Michael A. Arcuri, District Attorney of Oneida County, Utica (Michael A. Colluzza of counsel), for respondent.

Mark A. Wolber, Utica, for appellant.

HAYES, J. P., WISNER, SCUDDER and LAWTON, JJ., concur.

OPINION OF THE COURT

PIGOTT, JR., J.

Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of possessing a sexual performance by a child (Penal Law § 263.16). Defendant contends that a visual image stored in a computer hard drive is not a "photograph" within the meaning of Penal Law § 263.00 (4), and that County Court erred in denying his requests to charge the affirmative defense set forth in Penal Law § 235.15 (1) and the justification defense set forth in Penal Law § 15.20 (2) (a). The judgment should be affirmed.

I

At about 9:00 A.M. on June 12, 1998, the operations manager of a consulting and computer repair business in Rome, New York received a telephone call from defendant. Defendant indicated that he wanted to have the hard drive on his computer replaced but only if he could be present while the work was being performed. The manager agreed to do so, and defendant brought in his computer later that morning. The manager disassembled the computer, obtained a new hard drive, and began to copy the files from defendant's old hard drive to the new one. A problem developed in the power supply in defendant's computer, which resulted in damage to the new hard drive. Defendant was informed that a new power supply would have to be installed in his computer and that it could not be done right away. Defendant reluctantly agreed to leave his computer at the store.

The manager replaced the power supply and installed a new hard drive. As he copied the files from defendant's old hard drive to the new one, the manager observed that some of the file names appeared "suspicious-looking." He immediately suspected that the files contained child pornography based on the file names and the "suspicious nature of the customer." After he reassembled defendant's computer, he asked a technician to copy the contents of defendant's old hard drive to a hard drive of a computer located in the store. Defendant arrived at the store unexpectedly and the manager returned defendant's computer and old hard drive to him. Later that day, the manager and two technicians viewed the copied files and observed pictures of young children engaged in sexual activity with adults. The manager telephoned the Rome Police Department and was referred to the State Police. A State Trooper arrived at the store the following day and removed the store's hard drive containing defendant's files. A search warrant was executed at defendant's home, and defendant's computer was seized.

Defendant was indicted and charged with two counts of possessing an obscene sexual performance by a child (Penal Law § 263.11) and two counts of possessing a sexual performance by a child (Penal Law § 263.16). Prior to trial, the People moved to dismiss the two counts of possessing an obscene sexual performance by a child, and proceeded solely on the two counts of possessing a sexual performance by a child.

Penal Law § 263.16 provides: "A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age." Performance is defined in Penal Law § 263.00 (4) as "any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience." The indictment charged defendant with violating Penal Law § 263.16 by possessing "numerous computer graphic files which contained images of children less than sixteen years of age engaged in sexual conduct."

In support of a pretrial suppression motion, defendant, who is a licensed social worker specializing in treating sexually related disorders, indicated his intention to rely upon the affirmative defense set forth in Penal Law § 235.15 (1), which provides: "In any prosecution for obscenity, or disseminating indecent material to minors in the second degree in violation of subdivision three of section 235.21 of this article, it is an affirmative defense that the persons to whom allegedly obscene or indecent material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing, disseminating or viewing the same." The People made a motion in limine seeking to preclude defendant from introducing evidence in support of an affirmative defense pursuant to Penal Law § 235.15 (1). The prosecutor argued that the affirmative defense had no application to the present prosecution because defendant was not being prosecuted for obscenity or disseminating indecent material to minors. The court agreed, granted the motion and refused defendant's request to charge the jury with that affirmative defense.

At the close of the People's proof, defendant moved to dismiss the charges on the ground that the People had failed to prove that he possessed a sexual performance by a child. Defendant argued that a graphic image on a hard drive is not a photograph, and further argued that he could not be convicted of possessing a visual representation because there was no proof that he ever exhibited the images to an audience, as required by Penal Law § 263.00 (4). The People countered that a visual image stored on a hard drive may be construed as fitting within the definition of a "photograph," given the legislative intent to eradicate the market for child pornography in all forms. The court agreed with the People and denied the motion to dismiss the indictment. The court also granted the People's request to charge that, as a matter of law, a photograph "may include a computer graphic image."

Defendant testified on his own behalf that he is a licensed social worker and that he downloaded child pornography from the Internet in connection with research he was conducting to develop therapeutic treatment methods for Internet child pornographers. He testified that he was a member of a task force made up of mental health professionals and formed by the Oneida County Department of Mental Health, with encouragement from the Oneida County District Attorney's office, to develop such treatment programs. He further testified that he had informed other members of the task force, including the Deputy Commissioner of the Oneida County Department of Mental Health, that he was engaged in research concerning persons who deal in child pornography on the Internet. According to the testimony of other members of the task force, including the Deputy Commissioner, defendant indicated to them that he was conducting research concerning child pornography on the Internet and sending questionnaires to persons he identified as disseminators of child pornography on the Internet. He never informed them, however, that he was downloading child pornography from the Internet nor had anyone in the task force given defendant permission to do so.

At defendant's request, based upon defendant's testimony that the District Attorney's office was involved in the task force of which defendant was a member, the court charged the jury with the justification defense pursuant to Penal Law § 15.20 (2) (d). That section provides that it is a defense to criminal liability that defendant engaged in prohibited conduct because he had a mistaken belief that the conduct was legal as the result of an interpretation of a statute or law "officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law." The court refused defendant's request to charge the justification defense pursuant to Penal Law § 15.20 (2) (a). That section provides that it is a defense to criminal liability that defendant engaged in prohibited conduct because he was operating under a mistaken belief that the conduct was legal based on "an official statement of the law contained in * * * a statute or other enactment." Defendant was convicted as charged and sentenced to probation for five years and 500 hours of community service. Defendant appeals.

II

Defendant contends that the court erred in charging the jury that a photograph may include a computer graphic image because the term "photograph," which is not defined in the Penal Law, when given its ordinary meaning, requires that an image be produced on paper and be visible to the unaided eye. A computer graphic image, unlike a photograph, is visible to the unaided eye only when processed through a computer and displayed on a monitor.

Penal statutes "must be construed according to the fair import of their terms to promote justice and effect the objects of the law" (Penal Law § 5.00; see also, People v Keyes, 75 NY2d 343, 348). In enacting a statute, "it is impossible for the Legislature to consider every societal and technological change that may occur and the effect those changes may have upon the particular conduct it is seeking to regulate" (Rutledge v State, 745 So 2d 912, 916 [Ala]). Like the court in Rutledge (supra, at 916), "[w]e do not believe that the Legislature is required to amend the law to accommodate every advancement in technology."

When the Legislature enacted the statutes prohibiting possession of child pornography, its purpose was to prohibit the possession of child pornography in every form as a means of eradicating the market for such material. As Governor Pataki noted, "Someone who possesses child pornography does so at the expense of an exploited child, and society cannot hope to eradicate this evil unless the market for these perverse materials is...