People v. Keyes

• Decision Date: 20 February 1990
• Citation: People v. Keyes, 553 N.Y.S.2d 81, 75 N.Y.2d 343, 552 N.E.2d 617 (N.Y. 1990)
• Parties: , 552 N.E.2d 617 The PEOPLE of the State of New York, Respondent, v. William H. KEYES, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 81

553 N.Y.S.2d 81

75 N.Y.2d 343, 552 N.E.2d 617

The PEOPLE of the State of New York, Respondent, v. William H. KEYES, Appellant.

Court of Appeals of New York.

Feb. 20, 1990.

Terence L. Kindlon, Albany, for appellant.

Sol Greenberg, Dist. Atty. (George H. Barber, Albany, of counsel), for respondent.

Gregory A. Loken, New York City, for Covenant House, amicus curiae.

OPINION OF THE COURT

ALEXANDER, Judge.

The primary question presented on this appeal is whether the procurement of child pornography for personal use falls within the ambit of Penal Law § 263.15, which criminalizes the promotion of a sexual performance by a child. We conclude that it does and affirm the order of the Appellate Division reinstating the indictment.

I

Defendant was charged in a five-count indictment with promoting a sexual performance by a child in violation of Penal Law § 263.15. Four counts alleged that, knowing the contents thereof, defendant procured child pornography through the mail and the fifth count alleged that, knowing the contents thereof, defendant procured child pornography in his home from an undercover officer. Defendant was arrested and indicted following the seizure, pursuant to a search warrant, of various items of child pornography at his home. The search warrant application alleged that magazines and videotapes portraying child pornography in various forms had been purchased by defendant from an undercover officer, who after an investigation, had contacted defendant first by telephone and later in person. According to the warrant application, defendant expressed an interest in receiving pictures of young boys, age 13-18, in sexually explicit poses. Defendant gave the officer his name and mailing address and suggested that the materials be sent in an envelope with no return address so that in the event defendant was caught, he could deny knowledge of the material. Defendant paid for child pornography in the form of magazines and videotapes which he received from the officer both through the mail and, on one occasion, by personal delivery to defendant at his home.

County Court granted defendant's motion to dismiss the indictment, reasoning that Penal Law § 263.15 was directed at the distribution of child pornography and did not prohibit the acquisition of such materials for personal use (135 Misc.2d 993, 517 N.Y.S.2d 696). The Appellate Division rejected County Court's narrow construction of the statute, concluding that the term "procure", as used in the statutory definition of "promote" in Penal Law § 263.00(5) included the acquisition of child pornography whether for one's own personal use or for distribution to others, reversed County Court's order and reinstated the indictment (141 A.D.2d 227, 535 N.Y.S.2d 162). An Associate Judge of this court granted leave to appeal.

On this appeal defendant argues that County Court correctly applied the rule of noscitur a sociis, which means "it is known from its associates", to construe the term "procure" in Penal Law § 263.00(5) by reference to the other listed terms in the statutory definition of "promote". That court concluded that the Legislature intended to limit the term "procure" to the acquisition of child pornography for the purpose of distributing the material to others. Thus, absent an allegation that he intended to distribute the child pornography to others, the indictment fails to state a crime within the meaning of the statute and should be dismissed. Alternatively, defendant contends that the indictment must be dismissed because the charge against him is merely the possession of child pornography, an activity which is constitutionally protected under the rationale of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. The People respond that the term "procure" as used in Penal Law § 263.00(5) should be construed in accordance with its plain and natural meaning "to obtain", thus rendering the procurement of child pornography illegal, whether it is obtained for personal use or for distribution. They further argue that this broader definition is consistent with and gives effect to the Legislature's expressed intention to eradicate child pornography. As to defendant's constitutional challenge to the application of the statute, the People point out that the indictment does not charge defendant with the possession of child pornography and further argue that the procurement and possession of such material may be constitutionally proscribed.

We now affirm.

II

In an effort to eradicate child pornography and thereby combat the sexual exploitation of children, the Legislature enacted Penal Law article 263 which makes criminal the use of a child in a sexual performance (Penal Law § 263.05), the promotion of an obscene sexual performance by a child (Penal Law § 263.10), and the promotion of a sexual performance by a child (Penal Law § 263.15). ^* In a legislative declaration enacted with this article, the Legislature found a "proliferation of exploitation of children as subjects in sexual performances" and declared that "[t]he public policy of the state demands the protection of children from exploitation through sexual performances" (L.1977, ch. 910, § 1). The Legislature further urged law enforcement officers to vigorously enforce the provisions of the article.

Defendant is charged with promoting a sexual performance by a child in violation of Penal Law § 263.15. That crime is committed when "knowing the character and content thereof, [one] produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age." "Promote" is defined by Penal Law § 263.00(5) as follows: "to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same" (emphasis added). A "performance" is "any play, motion picture, photograph or dance" (Penal Law § 263.00[4].

Characterizing the conduct with which he is charged as merely the possession of child pornography, defendant argues that such possession is insufficient to constitute a crime under Penal Law § 263.15 absent any allegation that he intended to distribute the materials to others. The indictment, however, tracks the statutory language--defendant is charged with "procuring" specific items of child pornography both through the mails and at his home. The issue, then, is whether, by using the term "procure" in Penal Law § 263.00(5), the Legislature intended to limit the reach of Penal Law § 263.15 by criminalizing the acquisition of child pornography only when that acquisition is accompanied by an intention to distribute the material to others. County Court concluded that the statute was so limited because, in its view, the Legislature did not intend Penal Law § 263.15 to encompass the conduct of consumers in the child pornography market. That court concluded that consistent with the other terms listed in the statutory definition of "promote" which relate to the manufacture or distribution of child pornography to others (see, Penal Law § 263.00[5], the term "procure" should be construed as meaning only to obtain or acquire child pornography with the intent of distributing it to others. We reject this cramped construction as inconsistent with both the language and the spirit of the statute.

It is settled that penal statutes are no longer strictly construed and that conduct falling within the plain and natural meaning of a statute may be punished as criminal (People v. Ditta, 52 N.Y.2d 657, 660, 439 N.Y.S.2d 855, 422 N.E.2d 515). Although the term "procure" is not defined in the Penal Law, the leading definition commonly assigned to the...