People v. Keyes

• Decision Date: 17 June 1987
• Citation: People v. Keyes, 135 Misc.2d 993, 517 N.Y.S.2d 696 (N.Y. Cty. Ct. 1987)
• Parties: The PEOPLE of the State of New York v. William H. KEYES, Defendant.
• Court: New York County Court

Page 696

517 N.Y.S.2d 696

135 Misc.2d 993

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

Albany County Court.

June 17, 1987.

Sol Greenberg, Dist. Atty., for the people; Paul DerOhannesian II, Asst. Dist. Atty., of counsel.

Terence L. Kindlon, Albany, for defendant.

HARRIS, Judge.

Defendant was indicted for five counts of "Promoting a Sexual Performance by a Child", in violation of section 263.15 of the Penal Law, a Class D Felony, the allegations being, in summary, that the defendant, "knowing the character and content thereof did procure through the United States Postal Service, via the mail", certain magazines containing photographs of children under the age of 16 years, depicting said children engaged in sexual conduct, including deviate sexual intercourse, masturbation and lewd exhibition of genitals.

The gravamen of the charge against the defendant is solely the obtaining of certain proscribed photographs for his own private use. There is no charge or suggestion that the defendant had anything to do with the creation of these photographs, nor that he obtained them with intent to sell or distribute.

Defendant asserts that the alleged conduct is not proscribed by the statute, and that if it is, the statute is unconstitutional as applied to him.

The subject statute reads as follows:

"Section 263.15. Promoting a sexual performance by a child.

A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age."

"Promote" as defined by P.L. 263.00(5) means "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."

"Performance" means "any play, motion picture, photograph or dance ..." (P.L. 263.00(4)).

Thus, reduced to the specific, the defendant is charged with "procuring" a "photograph" depicting sexual conduct by a child less than sixteen years old.

The term "procure" is not specifically defined in the Penal Law. Every English language dictionary consulted by the Court, including Webster's Third New International Dictionary (Unabridged), indicates that the word "procure" has at least two general meanings, one of which is "to obtain" (either for one's self or for another) or "to gain possession of", and the other of which is "to get and make available for promiscuous sexual intercourse", from which the term "procurer" (known in the vernacular as a pimp), is derived.

Black's Law Dictionary (Revised Fourth Edition) defines "procure" as "To initiate a proceeding; to cause a thing to be done; to instigate; to contrive, bring about, effect, or cause ... To persuade, induce, prevail upon, or cause ... To obtain ... for another."

Elsewhere in the Penal Law the term "procure" appears only in the definition of "advance prostitution" contained in Penal Law, section 230.15(1), in the context of "procures ... patrons for prostitution." Nowhere in the Penal Law does the term "procure" appear in the context of obtaining something for one's own personal use.

The rules of statutory construction are set forth in McKinney's Statutes. Section 235 thereof recites "When a word is susceptible of two or more significations, the meaning to be given must be determined from the context of the statute, the purpose and spirit of it, and the intention of the lawmakers." (McKinney's Cons. Laws of N.Y., Book 1.)

The Court has obtained and examined the legislative bill jacket with respect to the enactment of Article 263 of the Penal Law. Nowhere in the legislative history of Article 263, as well as on the face of the statute itself, is there any suggestion that what was intended to be proscribed was anything other than the creation and distribution of sexual performances by a child less than sixteen years of age; more particularly, there is no suggestion whatsoever, in the legislative history, or the statute itself, that what was intended to be punished was the customer of a sexual performance, for his own private use--nor is there any language indicative of such an intent.

Indeed, although Penal Law, sec. 263.15, has been held by the United States Supreme Court to be constitutional as applied to the proprietor of a bookstore who was convicted of selling proscribed materials (New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113, ), it might well be that an interpretation of P.L. 263.15 that made mere private possession of the material herein-involved, for the defendant's own private use, would be unconstitutional under the U.S. Supreme Court's holding in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, the principle of which was adopted by the Appellate Division, Third Department, in People v. Marzano, 31 A.D.2d 52, 295 N.Y.S.2d 228.

In Marzano, supra, at 54, 295 N.Y.S.2d 228, interpreting...