People v. Poplaski
| Decision Date | 17 August 1994 |
| Citation | 616 N.Y.S.2d 434,162 Misc.2d 209 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Timothy POPLASKI, Defendant. |
| Court | New York District Court |
Denis Dillon, Dist. Atty. by Shaun K. Hogan, Mineola, for People.
Legal Aid Soc. of Nassau County by Andrea Carapella, Hempstead, NY, for defendant.
The defendant's application for an Order--
I. Dismissing the accusatory instruments herein because Penal Law 260.10(1) violates the defendant's rights under Article I, Sec. 6 of the Constitution of the State of New York as well as his rights under the First, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States;
II. Dismissing the accusatory instruments herein pursuant to CPL §§ 170.30(1)(a), 170.35(1)(a), 100.15 and 100.40 because (a) it is facially insufficient and defective; and (b) it violates the defendant's rights under Article I, Sec. 6 of the Constitution of the State of New York as well as his rights under the First, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States;
III. Suppression of the use as evidence at trial of any record or potential testimony reciting or describing statements of the defendant, whether made to a public servant or a private citizen, made or obtained involuntarily, within the meaning of CPL § 60.45, pursuant to CPL § 710.30, or in the alternative, directing that a hearing be held prior to trial, pursuant to CPL § 170.60(4), for the purpose of making the finding of fact necessary to determine the instant motion;
IV. Suppression of the use of evidence consisting of tangible property obtained by means of an unlawful search and seizure under circumstances precluding admissibility thereof in a criminal trial, or in the alternative, directing that a hearing be held prior to trial, pursuant to CPL § 710.60(4), for the purpose of making the finding of fact necessary to determine the instant motion;
V. Directing the People to provide the defendant with a copy of the defendant's past criminal history and prior bad or immoral acts which the People intend to use at trial to impeach the credibility of the defendant should the defendant choose to testify; and, if there is a past criminal history or any bad or immoral acts on the part of the defendant, directing a hearing be held to determine whether these prior convictions and/or bad acts may be used by the People during cross-examination of the defendant.
The defendant, Timothy Poplaski, allegedly contacted six boys ranging in age from twelve to fifteen, through a computer bulletin board. Once he made contact, the defendant allegedly had numerous phone conversations with said children where he claimed an ability to hypnotize them and directed them to masturbate.
On April 7, 1994, the Nassau County Police arrested the defendant and charged him with four counts of Endangering the Welfare of a Child in violation of Penal Law § 260.10(1). The Police then transferred the defendant to the Sex Crimes Squad of the Nassau County Police Department. While at the Sex Crimes Squad, the defendant provided the Police with a written statement chronicling his involvement in the crimes charged. In addition, the defendant executed a consent to search form. Thereafter, the Police seized property from the defendant's residence including, but not limited to, his computer and related items.
The defendant maintains that the Police coerced him into making his statement and into consenting to a search of his residence. During this time period, the defendant was not represented by counsel.
Currently, the defendant is charged with six counts of Endangering the Welfare of a Child in violation of Penal Law § 260.10(1).
A. Penal Law § 260.10(1) does not violate the defendant's right to free speech.
The defendant's contention that Penal Law § 260.10(1) is meant to "curtail acts and not speech," and therefore does not prohibit the defendant's alleged behavior, is contrary to the legislative intent of the statute. The Court has previously held that the legislative intent of this statute is to protect the physical health, morals, and well-being of children, and this solicitude relates not only to sexual offenses but to other dangers as well. People v. Bergerson, 17 N.Y.2d 398, 271 N.Y.S.2d 236, 218 N.E.2d 288 [1966]; Mem. of City of N.Y. in support of (1970, ch. 389, 1970 N.Y. Legisl.Ann., at 52.) The law's focus is on the potential for endangering a child's welfare. People v. Benu, 87 Misc.2d 139, 385 N.Y.S.2d 222 (1976). There is nothing in the language of the statute, its legislative history, or the case law to indicate this statute is meant to "curtail acts and not speech." People v. Rice, 17 N.Y.2d 881, 271 N.Y.S.2d 307, 218 N.E.2d 341 (1966); People v. Ahlers, 98 A.D.2d 821, 470 N.Y.S.2d 483 (1983). Therefore, the Court finds that the statute does proscribe the defendant's alleged activity.
The right to free speech is not absolute. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). The United States Supreme Court has explicitly defined certain classes of speech, including the lewd and obscene, the profane, the libelous, and the insulting or fighting words, which the government may regulate. Id. at 572, 62 S.Ct. at 769. Where a particular type of speech does not fall under the above categories, the government may still impose regulations where a compelling government interest exists.
When deciding whether to allow such a restriction, the Court must first decide whether or not there exists a countervailing state interest. In this case, there is a compelling state interest to protect the well-being of children. Although in the abstract any restriction on speech impinges on the defendant's right to free speech, the issue before the Court is whether the Court's obligation to protect the compelling state interest or the protection of the well-being of children outweighs the defendant's right to have sexually explicit phone conversations with children.
The government's interest in protecting children is firmly established in case law, In the Matter of Anne "B.B.", 202 A.D.2d 806, 609 N.Y.S.2d 111, 113 (1994); Juman v. Louise Wise Services, 159 Misc.2d 314, 608 N.Y.S.2d 612 (1994); In the Matter of Katherine B., 189 A.D.2d 443, 596 N.Y.S.2d 847 (1993). On the contrary, restrictions on the defendant's right to have sexually explicit conversations with children is not constitutionally guaranteed. The Court need not and does not rule on the defendant's right to have sexually explicit conversations with adults nor on the method used to facilitate such conversation. Consequently, the Court holds that the statute is not an unconstitutional restriction on the defendant's right to free speech.
B. Penal Law Section 260.10(1).
In order for a statute to be Constitutional, the "statute must give notice to the accused of the illegality of his act." People v. Warden, Rikers Island Men's House of Detention, 90 Misc.2d 654, 656, 395 N.Y.S.2d 602, 604 (Supreme Court Bronx County 1977). When reviewing the constitutionality of a statute, the Court gives the legislative act a strong presumption of constitutional validity. Id. 395 N.Y.S.2d at 606. In order to prevail in a constitutional challenge to a criminal statute, the defendant has the burden to prove the unconstitutionality of the statute beyond a reasonable doubt. Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539 (1965).
The Court holds that Penal Law § 260.10(1) does give the defendant notice of the illegality of his acts. Penal Law § 260.10(1) "uses ordinary terms to express ideas which find adequate interpretation in common usage and understanding," People v. Byron, 17 N.Y.2d 64, 67, 268 N.Y.S.2d 24, 27, 215 N.E.2d 345, 347 (1966), and is certainly sufficient to give warning of what the statute prohibits. People v. Bergerson, 17 N.Y.2d 398, 271 N.Y.S.2d 236, 218 N.E.2d 288 (1966). The statute sufficiently gives notice to a reasonable man that he may not knowingly engage in conduct which is likely to be injurious to the physical, mental, or moral welfare of a child. People v. Illardo, 48 N.Y.2d 408, 423 N.Y.S.2d 470, 399 N.E.2d 59 (1979).
In determining constitutional vagueness, the Court does not test the statute in the abstract, but rather measures it with respect to the actual conduct of the defendant. United States v. Tana, 618 F.Supp. 1393 (S.D.N.Y.1985); United States v. Payden, 598 F.Supp. 1388 (S.D.N.Y.1984); reversed 759 F.2d 202 (2nd Cir.1985) remand, 609 F.Supp. 1273, affirmed 768 F.2d 487; People v. Harris, 129 Misc.2d 577, 493 N.Y.S.2d 733 (N.Y.City Crim.Ct.1985); see also People v. Miller, 106 A.D.2d 787, 484 N.Y.S.2d 183 (3rd Dept.1984). In the case before the Court, the defendant knowingly contacted six children between the ages of twelve and fifteen and allegedly encouraged, instructed, and directed them to masturbate. The Court holds that this is precisely the sort of behavior that the statute intends to prohibit. The defendant has therefore failed to meet its burden with regard to vagueness, and the Court holds that the statute is not overly broad or vague.
II. The court denies the defendant's motion to dismiss pursuant to CPL 170.30, 170.35, 100.15 and 100.40.
pursuant to CPL 170.30
, 170.35
, 100.15
and 100.40.
The Court holds that the criminal informations satisfy the requirements stated in CPL 100.15 and 100.40, and should therefore not be dismissed pursuant to CPL 170.30 and 170.35. In order for a criminal information to be sufficient, CPL 100.15 and 100.40 require that it contain both an accusatory part designating the offenses charged and a factual part containing non-hearsay allegations which provide reasonable cause to believe that the defendant committed the offense.
The information in this case...
To continue reading
Request your trial
-
People v. Simmons
...N.Y.S.2d 369 [defendant pinched 7-year-old and 10-year-old girls' buttocks and showed them sexually explicit film]; People v. Poplaski, 162 Misc.2d 209, 616 N.Y.S.2d 434 [information sufficient charging endangerment that described telephone conversations wherein defendant directed boys ages......