People v. LYNN PINKOSKI
| Decision Date | 19 December 2002 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Appellant,<BR>v.<BR>TABATHA LYNN PINKOSKI, Respondent. |
| Court | New York Supreme Court — Appellate Division |
In September 2000, defendant took photographs of her six-year-old daughter (hereinafter the victim) posing in various stages of undress, while her five-year-old son and seven-year-old daughter were present. As relevant here, the photographs depict the victim lying on a bed with her raised buttocks exposed, squatting cross-legged on the floor with her bare buttocks exposed, standing with her shorts pulled down and her genitals exposed, pulling her shirt up with her bare chest exposed, and squatting with her buttocks exposed as an adult's hands spread her buttocks apart. These photographs and their negatives were the basis of a 19-count indictment handed down in March 2001. The indictment charges defendant with five counts of using a child in a sexual performance (see Penal Law § 263.05), five counts of promoting a sexual performance by a child (see Penal Law § 263.15), five counts of possession of a sexual performance by a child (see Penal Law § 263.16), one count of sexual abuse in the first degree (see Penal Law § 130.65 [3]) and three counts of endangering the welfare of a child (see Penal Law § 260.10).
Both testimonial and documentary evidence was presented to the grand jury. An employee of the Wal-Mart Photo Center testified that during his development of the film, he discovered the photographs of a partially clad young girl "posing for the camera." He reported the photographs to the store manager who promptly called the police. The police confiscated only the subject photographs; the remaining photographs and all the negatives were returned.
William Carpenter, a detective with the City of Cortland Police Department in Cortland County, testified that he met defendant at the children's elementary school. That meeting prompted an accompanied retrieval of the negatives from defendant's home and her later interview at the police department. When first confronted with these photographs, defendant expressed disgust and shock, denying any involvement. However, after a further interview, she provided a written statement in which she admitted that she took the photographs, but explained that the activity was unplanned—she had a camera in her hand when the victim jokingly suggested, "do you want to see my butt." While laughing, the victim laid on defendant's bed and then pulled down her shorts and underwear exposing her buttocks; defendant took a photograph. The victim then got up off the bed and squatted on the floor cross-legged while still partially clothed; defendant took a photograph. Once dressed, the victim inquired about the differences between boys and girls as discussed in her school sex education program called Little Bear,[1] and then pulled down her shorts and underwear; defendant "accidentally took a photograph of [the victim's] vagina." With the victim thereafter "ask[ing] * * * about her butt," defendant again took a photograph, not realizing that the camera was on, when the victim pulled her butt cheeks apart with her hands. Concluding by pulling up her shorts, the victim then lifted up the front of her shirt showing her bare chest; defendant took another photograph. In her statement, defendant admitted to knowing that both her five-year-old son and seven-year-old daughter were present in the bedroom while the photographs were taken and, watching from the hallway, was her boyfriend, Henry Randall. Clearly aware of her inappropriate conduct, she admitted, "I know that I should not have taken photographs of [the victim] with her shorts pulled down exposing herself," and conceded, "I also probably should not have taken photographs while my other children were in the bedroom watching."
After the police interviewed Randall, defendant's interview continued and her statement further evolved, now disclosing that she had not been entirely truthful. Pertaining to the photograph separating the victim's buttocks, defendant explained that she Defendant then offered a new explanation for her conduct: Randall's testimony before the grand jury recounted how he accidentally stumbled upon this incident, expressing "shock" at defendant's behavior. He confirmed that the victim was not fully clothed when photographed and that defendant was the one who held the victim's "butt cheeks" apart.
At the conclusion of all testimony, the grand jury was provided with a description of the charges, the elements of the crimes, definitions of all relevant terms as set forth in Penal Law § 263.00, and the available affirmative defense. It was instructed on the applicable standard of proof and told to consider all 19 counts. After voting to return the full indictment, County Court granted defendant's motion to dismiss. The People appeal.
In assessing the proffer made to the grand jury, we view the evidence in the light most favorable to the People to determine whether this evidence "`if unexplained and uncontradicted * * *would warrant conviction by a petit jury'" (People v Jensen, 86 NY2d 248, 251, quoting People v Jennings, 69 NY2d 103, 114). As long as the grand jury could have rationally drawn the inference of guilt, we must find the evidence legally sufficient (see People v Carroll, 93 NY2d 564, 568-569; People v Canale, 240 AD2d 839, 840).
Addressing the dismissal of those counts predicated upon photographs of the victim's buttocks and bare chest as not constituting a "lewd exhibition of the genitals" within the meaning of sexual conduct as defined in Penal Law § 263.00(3),[2] we can find no error. Generally, we will not supply, by implication, a provision in a statute when it is reasonable to believe that its absence was intended by the Legislature (see McKinney's Cons Laws of NY, Book 1, Statutes § 74; see Pajak v Pajak, 56 NY2d 394, 397; Matter of Flynn v State Ethics Commn., Dept. of State, State of N.Y., 208 AD2d 91, 94, affd 87 NY2d 199). With a penal statute, it is further presumed that its terms are to "be...
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