People v. Kozlow

• Decision Date: 26 April 2007
• Docket Number: 49.
• Citation: 8 N.Y.3d 554,870 N.E.2d 118
• Parties: The PEOPLE of the State of New York, Appellant, v. Jeffrey KOZLOW, Respondent.
• Court: New York Court of Appeals Court of Appeals

870 N.E.2d 118

8 N.Y.3d 554

The PEOPLE of the State of New York, Appellant, v. Jeffrey KOZLOW, Respondent.

49.

Court of Appeals of New York.

April 26, 2007.

Janet DiFiore, District Attorney, White Plains (Robert K. Sauer and Anthony J. Servino of counsel), for appellant.

Stillman, Friedman & Shechtman, P.C., New York City (Nathaniel Z. Marmur of counsel), for respondent.

Andrew M. Cuomo, Attorney General, New York City (Barbara D. Underwood, Daniel Smirlock and Megan P. Davis of counsel), amicus curiae.

Michael E. Bongiorno, District Attorney, New York City (Karen Schlossberg and Mark Dwyer of counsel), for New York State District Attorneys Association, amicus curiae.

OPINION OF THE COURT

PIGOTT, J.

We hold that a defendant charged with attempted dissemination of indecent material to minors in the first degree under Penal Law § 110.00 and former § 235.22 (L. 1996, ch. 600, § 6) may properly be convicted under that statute even though his communications contained no nude or sexual images.

I.

On March 4, 2004, defendant Jeffrey Kozlow entered an Internet chat room and, by instant messaging, approached a person with the screen name "JohnInYonkers914," who immediately gave his age as 14. "[I]'m 42; [I]'m into younger guys," Kozlow wrote, "u into guys my age?" (Punctuation added.) Unbeknownst to Kozlow, JohnInYonkers914 was an undercover investigator. Later that month, the two exchanged photographs of themselves, fully clothed, the investigator sending photographs of an adolescent boy. Kozlow asked JohnInYonkers914 about his sexual orientation and, repeatedly, about masturbation. In April, Kozlow began to describe, in the text of his instant messages, sexual acts he enjoyed. He also described various imagined sexual encounters they might have, involving oral and anal sex. Kozlow did not, however, send any pornographic images or other pictorial representations of nudity or sex.

In May, the two made plans to meet in Westchester County. Although Kozlow repeatedly told JohnInYonkers914 that at first they were "just going to talk," he also mentioned that he would "get a room" if the two decided to have sex, and he described sexual acts in which they might engage. Kozlow cancelled these plans but, in June, after JohnInYonkers914 said that his parents had given him permission to travel into Manhattan by himself, Kozlow quickly suggested a meeting. The two agreed to meet at 11:30 A.M. on June 28, 2004 at a magazine store at Grand Central Terminal. Kozlow was arrested leaving the store at 11:28.

Kozlow was charged with five counts of attempted dissemination of indecent material to minors in the first degree (Penal Law § 110.00, former § 235.22). His bench trial commenced in County Court in May 2005. The evidence primarily consisted of transcripts of the instant messages and of e-mails. Kozlow moved to dismiss the charges, arguing, among other things, that Penal Law § 235.22 applied only when a defendant's communication to a minor involved indecent pictorial representations. County Court denied Kozlow's motion, and ultimately convicted him on all counts.

The Appellate Division reversed defendant's conviction and dismissed the indictment, reasoning that Kozlow's communications could not have "depicted" sexual conduct within the meaning of Penal Law § 235.22(1), since they included no visual, sexual images (31 A.D.3d 788, 821 N.Y.S.2d 212 [2006] ). A Judge of this Court granted leave to appeal, and we now reverse.

II.

In 1996, the New York State Legislature introduced statutes criminalizing the transmission of indecent material to minors over the Internet. Former Penal Law § 235.22 provided that, to be guilty of disseminating indecent material to minors in the first degree, a person must intentionally communicate by computer with a minor "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" (former Penal Law § 235.22[1] [emphasis added]).¹

Additionally, the person must use the computer communication to lure a minor "to engage in sexual intercourse, oral sexual conduct or anal sexual conduct, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit" (former Penal Law § 235.22[2] [L. 2003, ch. 264, § 29] ). This first-degree offense was designated a class D felony.

We begin with a brief observation about the ordinary meaning of the word "depict." While one meaning of "depict" is represent in a picture, and the etymology of the word lies in the Latin "pingere" ("to paint"), the word "depict" also has a standard sense of represent or portray in words and it has been used in that manner since the colonial era (see 4 Oxford English Dictionary 477 [2d ed. 1989] ).

Turning to legislative intent, the purpose of the New York State Legislature in enacting Penal Law § 235.22 in 1996 (see L. 1996, ch. 600, § 6) may be discerned from the range of concerns expressed by its proponents and sponsors. In the mid-1990s, law enforcement officials and legislators were alarmed by the increasing use of computers by pedophiles to contact minors. Lawmakers proposed section 235.22 partly in response to the highly publicized case of Alan Paul Barlow (see Governor's Mem. approving L. 1996, ch. 600, 1996 McKinney's Session Laws of N.Y., at 1901; Letter of Westchester County District Attorney to Governor Pataki, Feb. 13, 1996, Bill Jacket, L. 1996, ch. 600, at 25). Posing as a 13-year-old boy, Barlow, a 51-year-old resident of Seattle, Washington, wrote sexually explicit e-mails to a 14-year-old girl in Westchester County. He was arrested in New York in June 1994 after arranging to meet the girl near her home, and was charged with endangering the welfare of a child — a misdemeanor.² The sponsors of the 1996 legislation, explaining how such incidents justified the proposed laws, described the e-mail communications they sought to criminalize as predominantly textual. "Typically, the pedophile, posing as a minor, makes contact, wins the confidence of the minor and slowly begins to draw the victim into discussions of sex and sexuality." (Senate Introducer's Mem. in Support of L. 1996, ch. 600, 1996 McKinney's Session Laws of N.Y., at 2524 [emphasis added].)

We therefore reject defendant's contention that the Legislature intended to limit the scope of Penal Law § 235.22 to sexual predators who use images, rather than words, to lure minors. Nowhere in the history of the statute do we find evidence of such a narrow intent. On the contrary, it is clear that the legislators intended to criminalize the activities of adults who engage minors in "sexually infused communication" (Senate Introducer's Mem. in Support at 2524 [emphasis added] ).

Moreover, the Legislature was surely aware that a sexually explicit text may be used as a means of seduction just as effectively as a sexual image. The lawmakers observed that pedophiles first try to win the confidence of their victims (Senate Introducer's Mem. in Support at 2524); they could not have thought that this process was limited to the transmission of pornographic images. Indeed, the logic of communication dictates just the opposite—that images alone would not enable the sender to entice a minor to a meeting. Defendant's argument, therefore, that the Legislature was seeking to criminalize the luring of a child into a sexual encounter by transmission of visual images, while leaving a loophole allowing a predator to lure a child into sex through transmission of words alone, falls of its own weight. As the Attorney General points out in his amicus brief urging reversal, such an interpretation would render the law almost useless; a recent national study suggests that only 18% of perpetrators of Internet-related sex offenses against minors transmitted sexual pictures to their victims (see Janis Wolak et al., Internet-initiated Sex Crimes against Minors: Implications for Prevention Based on Findings from a National Study, 35 J Adolescent Health 424.e11, 424.e16-424.e17 [2004], available at ).

Defendant alternatively contends that the Legislature may have intended a limited proscription of transmission of visual depictions of sexuality to minors because of concern that the statute would run afoul of constitutional challenges if it applied to purely textual communications. We note, however, that the sponsors of the bill expressly mentioned several respects in which it was drafted so as to be "consistent with the recently passed Federal Communications Decency Act and Constitutional requirements" (Senate Introducer's Mem. in Support at 2524). For example, the bill provides a defense for those who make good faith efforts to avoid contacts with minors, and the sponsors note that the accompanying definition of "harmful to minors" was intended to be consistent with Federal law (id. at 2524-2525).³ But nowhere do any legislators suggest that the word "depict" was chosen to ensure consistency with Federal law.

It is certainly true that the preexisting language of Penal Law § 235.21 distinguishes between a "visual representation or image ... which depicts nudity, sexual conduct or sado-masochistic abuse" (Penal Law § 235.21[1][a]) and "explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse" (Penal Law § 235.21[1][b]). The words "depicts ... nudity, sexual conduct or sado-masochistic abuse" were repeated in the 1996 amendments, in both section 235.21(3) and section 235.22(1), and the corresponding language regarding verbal descriptions and narrative accounts was not used. But we cannot conceive that this outcome was the result of a deliberate decision to limit the scope of the statute to pictorial representations, at the time that it was being expanded into the multifaceted area of computer communications. On the contrary, we think it...