People v. Horner

300 A.D.2d 841, 752 N.Y.S.2d 147, 2002 N.Y. App. Div. LEXIS 12430

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2002
• Status: Published

Opinions

—Peters, J.

Appeal from an amended order of the County Court of Chenango County (Sullivan, J.), entered October 29, 2001, which granted defendant’s motion to dismiss the indictment.

Defendant was indicted by a Chenango County grand jury on one count each of possessing a sexual performance by a child (Penal Law § 263.16) and attempted use of a child in a sexual performance (Penal Law §§ 110.00, 263.05). The charges arose from defendant’s possession of over 100 downloaded Internet-reproduced photographs featuring young boys, some nude and some wearing skimpy swimsuits or briefs, as well as the request by defendant that his grandnephew pose naked for him for photographs.

Thereafter, County Court granted defendant’s motion to dismiss the indictment. In determining the motion, County Court inspected the grand jury minutes and all confiscated photographs and requested that the People select those photographs which it claimed depicted “sexual conduct” as set forth in Penal Law § 263.00 (3). The People selected four such photographs marked as exhibits A, B, C and D: exhibit A depicts three nude boys playing on a beach, the genitalia of one appearing erect; exhibit B is of a naked boy, casually propped against a tree, again suggesting an erection; exhibit C is a grainy photograph of two boys lying together on a blanket, neither is nude; and exhibit D depicts two shirtless boys on a couch, one reclines with his legs open while the second reposes upon his chest, nestled between his open legs, while the first boy is loosening the string of the second boy’s swimwear as they both watch.

In ruling upon the motion, County Court focused its inquiry on exhibits A, B, C and D and determined that where the genitalia are not displayed, the conduct will not fall within the parameters of the statute. As to the nude photographs, County Court concluded that Penal Law article 263 contemplates activity of a more prurient nature than they depicted. Regarding the charge of attempted use of a child in a sexual performance, County Court found no evidence of “sexual conduct” and, therefore, found insufficient evidence to establish an essential element of the crime. The People appeal.

At the outset, we find that to the extent that County Court limited its consideration to only four of the photographs (exhibits A, B, C and D), despite having inspected all photographs which had been before the grand jury, this was error. Turning to the first count of possessing a sexual performance by a child, Penal Law § 263.16 details that a person may be found guilty of this crime when, “knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.” Sexual conduct by a child less than 16 years of age includes, inter alia, “lewd exhibition of the genitals” (Penal Law § 263.00 [3]).

We do not agree with County Court’s conclusion that both the exhibition of nude genitalia and activity of a prurient nature are required to make out a violation of this statute. The provisions of Penal Law § 263.00 (3) are to “be construed according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law § 5.00). Indeed, “the legislative history of [Penal Law] article 263 indicates that the Legislature intended to employ broad measures to eradicate child pornography in all its forms” (People v Keyes, 75 NY2d 343, 348); “cramped construction” must be rejected as “inconsistent with both * * * [its] language and * * * spirit” (id. at 347). Recognizing that the Legislature did not separately define “lewd exhibition of the genitals” when it provided that such conduct would constitute “sexual conduct,” a corpus of both federal and state decisional law guides us to the following factors articulated in United States v Dost (636 F Supp 828, afifd 813 F2d 1231) to assess whether the photographs here constitute “lascivious exhibition of the genitals or pubic area”:¹

“1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

“2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

“3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

“4) whether the child is fully or partially clothed, or nude;

“5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

“6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer” (United States v Dost, supra at 832; see United States v Knox, 32 F3d 733, cert denied 513 US 1109; United States v Villard, 700 F Supp 803, affd 885 F2d 117; People v Bimonte, 187 Misc 2d 677; People v Kongs, 30 Cal App 4th 1741, 37 Cal Rptr 2d 327).² Hence, one must consider the combined eifect of the setting, attire, pose and emphasis on the genitals and whether it is designed to elicit a sexual response in the viewer, “albeit perhaps not the ‘average viewer’, but perhaps in the pedophile viewer” (United States v Dost, supra at 832).

Absent a statutory provision to the contrary, all of the aforementioned factors need not be present in order to find a “lewd exhibition of the genitals.” Neither Dost nor our statute prohibiting public lewdness (see Penal Law § 245.00) requires that the genitalia be uncovered (see People v Darryl M., 123 Misc 2d 723 [the defendant’s actions of repeatedly stroking his covered erect penis against the buttocks of females is behavior encompassed by the statute]; see also People v Kongs, supra [the defendant taking “crotch shots” of minors at family photo shoots³ falls within statutory prohibition despite genitalia being covered]). Where, as here, defendant is found to possess a series of “crotch shots” of young boys, some clothed and some nude, a prohibited exhibition of the genitalia can be found. The lewd character of the photograph and its prurient appeal is not a characteristic of the child photographed, but “ ‘of the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles’ ” (Alexander v State of Texas, 906 SW2d 107, 110 [Tex], quoting United States v Wiegand, 812 F2d 1239, 1244, cert denied 484 US 856). Applying these principles and mindful that it was exclusively within the province of the grand jury, and not County Court, to weigh the evidence (see People v Jensen, 86 NY2d 248, 252), we conclude, after reviewing all of the photographs before the grand jury, that this count of the indictment should have been upheld as supported by legally sufficient evidence.⁴

Next addressing the count stemming from defendant’s request of his grandnephew to pose naked for Internet photographs, we find, upon viewing the evidence before the grand jury in a light most favorable to the People (see People v Canale, 240 AD2d 839, 840), that it failed to support the charge of attempted use of a child in a sexual performance (see Penal Law §§ 110.00, 263.05). The victim, 14 years old at the time of the incident, testified that defendant showed him photographs of children between the ages of 6 and 16 which were printed off the Internet, took pictures of him clothed and later asked him to pose naked; the victim refused.

“A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00; see People v Warren, 66 NY2d 831, 832). To establish an attempt, it must first be demonstrated that defendant intended to commit a specific crime (see People v Warren, supra; People v Hamilton, 256 AD2d 922, 923, lv denied 93 NY2d 874). Second, there must be conduct tending to effect the commission of the crime. While such act need not constitute the last one necessary to complete the offense, it must carry “ ‘the project forward within dangerous proximity to the criminal end to be attained’ ” (People v Bracey, 41 NY2d 296, 300, quoting People v Werblow, 241 NY 55, 61; see Penal Law § 110.00). Considering these elements, we conclude that while defendant’s conduct may well be considered preparatory, it was insufficient to constitute a punishable attempt (compare People v Chanowitz, 298 AD2d 767).

Cardona, P.J. and Carpinello, J., concur.

1 . The statute challenged in United States v Dost (636 F Supp 828, supra) was 18 USC former § 2255 (2) (E). It proscribed “lascivious exhibition of the genitals or pubic area.” Despite the slightly dissimilar statutory standard and legislative history indicating that Congress purposely employed the term “lascivious” rather than ‘lewd” in order to make it clear that the exhibition of a child’s genitals need not meet the obscenity standard to be unlawful (id. at 831; 130 Cong Rec S3510, S3511 [Mar. 30, 1984 (statement of Sen. Specter)]), we see nothing in the legislative history of Penal Law article 263 that would draw any distinction between the two terms. Hence, in our view, the application of the Dost test is instructive.

2 . These factors “serve to distinguish between innocent family photo or artistic depiction of a nude child and the victimization of that child in the creation of child pornography” (United States v Villard, supra at 812).

3 . Events at which photographers take pictures of models of varying ages so the photographers and the models can develop portfolios.

4 . Contrary to the dissent, we do not find it necessary to remit the matter so that County Court can rule upon each photograph submitted to the grand jury and address the issue of whether the District Attorney’s mass submission of all of the seized photographs was so prejudicial as to taint the grand jury process. Inasmuch as this question is one of law and the record before the trial court does not differ from the record that is currently before this Court, deference to a trial court inquiry is not required (see People v Adessa, 89 NY2d 677, 684-685).

The “exceptional remedy” of dismissal of an indictment under CPL 210.35 (5) is reserved for “those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand |j]ury. * * * Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” (People v Huston, 88 NY2d 400, 409 [citation omitted]; see People v Avant, 33 NY2d 265, 271). Here, when the majority of the allegedly inapplicable photographs are excluded, there is, as noted above, sufficient photographic evidence remaining to sustain the first count of the indictment.