People v Crawford
Annotate this CaseDecided on December 15, 2006
Supreme Court, Monroe County
The People of the State of New York
against
Robert William Crawford, Defendant.
2006-0534
For the People:
Michael C. Green
Monroe County District Attorney
Douglas Randall, A.D.A.
47 South Fitzhugh Street, Suite 832
Rochester, New York 14614
For the Defendant:
Edward J. Nowak
Monroe County Public Defender
Thomas Winward, A.P.D.
10 North Fitzhugh Street
Rochester, New York 14614
Joseph D. Valentino, J.
Defendant is charged with two counts of attempting to disseminate indecent material to minors in the first degree (Penal Law §§ 110.00; 235.22). Defendant moved for an inspection of the Grand Jury minutes pursuant to CPL 210.30 and to dismiss or reduce the indictment for insufficiency or defects. Specifically, defendant moved to dismiss the indictment for failure to present visual sexual images relying on People v Kozlow, 31 AD3d 788. Defendant also moved for release of the Grand Jury minutes, for a Huntley hearing and to suppress evidence seized pursuant to a search warrant. A Huntley hearing was held November 20, 2006.
I.Inspection of Grand Jury Minutes
On a motion to dismiss an indictment under CPL 210.20 (1) (b), the evidence before the Grand Jury is examined for legal sufficiency, i.e., to determine whether there is competent [*2][*3]evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (CPL 70.10 [1]; see, People v Deegan, 69 NY2d 976, 978-979). The sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (People v Jennings, 69 NY2d 103, 114; see, People v Galatro, 84 NY2d 160). Even in a wholly circumstantial evidence case, the standard limits the reviewing court's inquiry to determining whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes (People v Deegan, supra, at 979). That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference (id.; see, People v Bello, 92 NY2d 523, 525-526). Under that standard of review, all questions as to the quality or weight of the proof should be deferred (People v Jennings, supra, at 115; see, People v Galatro, supra, at 164).
A Grand Jury need not be instructed with the same degree of precision required for a petit jury (see, People v Calbud, 49 NY2d 389, 394) and a prosecutor has discretion in giving instructions (see, CPL 190.30 [7]; People v Darby, 75 NY2d 449; People v Santmyer, 255 AD2d 871). The prosecutor is not required to seek out evidence favorable to the defendant or present all their evidence tending to exculpate the accused (see, People v Mitchell, 82 NY2d 509, 515; People v Lancaster, 69 NY2d 20, 27; People v Valles, 62 NY2d 36, 38). In most instances, the prosecutor satisfies his or her obligation to instruct the Grand Jury by reading the appropriate provisions of the Penal Law (People v Calbud, supra, at 394-395; People v Douglas, 288 AD2d 859, lv denied 97 NY2d 681).
The Court fully examined the stenographic minutes of the Grand Jury proceeding and the statute. Penal Law § 235.22 (1) provides, in pertinent part, that a person is guilty of disseminating indecent material to minors in the first degree when he or she engages in the following conduct:
"[K]nowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct . . . and which is harmful to minors, he [or she] intentionally uses any computer communication system . . . to initiate or engage in such communication with a person who is a minor" (emphasis supplied).
The word "depict" is not defined in this chapter of the Penal Law. Defendant argues that "depict" is limited to the dissemination of graphic images and relies on People v Kozlow, supra, 31 AD3d 788, which is apparently the only appellate authority to squarely address the issue. The People argue that "depict" is not limited to the transmission of pictorial images.
In People v Kozlow, supra, the Second Department reversed the defendant's conviction of first degree attempted dissemination of indecent materials to minors on the basis that no visual sexual images were contained in the internet communications with an undercover police officer whom the defendant believed to be a minor. The Second Department determined that the evidence was legally insufficient to support the conviction in the absence of visual sexual images and cited People v Foley, 94 NY2d 668, cert denied 531 US 875, without further discussion of "depict." Kozlow's judgment of conviction was reversed and the indictment dismissed.
The doctrine of stare decisis would generally require this Court to follow the precedent of the Second Department in the absence of a contrary rule by the Fourth Department. However [*4][*5]stare decisis requires an examination of the underlying rationale for the precedent (see, People v Saunders, 85 NY2d 339, 344; see also, People v Maher, 89 NY2d 456, 461- 462). In determining whether to apply or withhold stare decisis, a lower court is not limited to the actual holding of the case, but must look to the rationale of the case (see, People v Saunders, supra). Where the rationale is inapplicable, the holding of the higher court is inapplicable (id.).
"[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable" (Helvering v Hallock, 309 US 106, 119,). When the force of better reasoning prevails, the doctrine of stare decisis must be withheld (see, People v Bing, 76 NY2d 331, 338).
The Second Department's reliance on People v Foley, supra, to determine People v Kozlow, supra, is questionable. Foley involved the transmission of visual sexual images of preteen girls and men engaging in sexual acts and minors engaging in sexual acts with other minors and adults (People v Foley, supra, at 674). Foley did not discuss the definition of "depict." Therefore, Foley is distinguishable on its facts. Foley is significant in that it noted the disseminating statute "criminalizes the use of sexually explicit communications designed to lure children into harmful conduct."
The trial courts in People v Skya, 6 Misc 3d 188; People v Gallicchio, 189 Misc 2d 182, addressed "depict" in the context of sexually explicit on-line communications without visual sexual images and this Court is persuaded by the sound reasoning in these decisions. Skya relied on the reasoning in Gallicchio that the definition of "depict" was not "limited to a visual image, but includes a written communication of sexually explicit language." Under the statute, "the communication must both depict sexual conduct and must also be harmful to a minor" (People v Gallicchio, supra, at 187). Penal Law §235.20 (6) sets forth the definitions specifically applicable to the disseminating statute and the term "harmful to minors" includes "that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse." As such, this phrase is sufficiently all-inclusive so as to include purely textual depictions as well as pictorial ones (People v Gallicchio, supra).
Accordingly, the sexually explicit on-line communications involved here satisfy the definition of "depict" (see, People v Skya, supra; People v Gallichio, supra).
Turning to defendant's remaining contentions, the Grand Jury proceeding was not defective by reason of any improper, incomplete or incorrect instructions or by reason of any other defect in the proceeding. The jury was fully charged with respect to the principles of law that were required for this particular case. The Court concludes that the evidence was legally sufficient to establish the offenses charged. Competent evidence, which if accepted as true, would establish every element of the offenses charged (see, People v Mikuszewski, 73 NY2d 407). Dismissal of an indictment is an exceptional remedy and it is not warranted in this case (see, People v Darby, 75 NY2d 449). Therefore, defendant's motion to dismiss or reduce the indictment is denied in all respects.
Defendant's request for release of a copy of the Grand Jury minutes is denied (see, Matter of Brown v Rotker, 215 AD2d 378, lv denied 86 NY2d 706).
II.Defendant's Statements
[*6][*7]FINDINGS OF FACT
At the hearing, the prosecution presented the testimony of Tracy Cass, an investigator with the New York State Police. She testified that on May 11, 2006, she assisted Investigator Dennis Enser of the State Police with an arrest of defendant at the Rochester Public Library on South Avenue in the City of Rochester. She placed defendant in handcuffs. Without any questioning by the investigators, defendant stated "I didn't do anything. I wasn't doing anything wrong." Cass led him out of the library and he asked what the charges were. Cass explained that it had to do with his soliciting sex with a 13-year old online. Defendant responded, among other statements, that he never solicited sex from her and he stopped doing that a long time ago. Cass told defendant to stop talking, advised him of his Miranda rights and waited for a patrol car. Cass did not ask defendant any questions. Defendant told Cass that he wanted a lawyer. Thereafter, without any question from Cass, defendant stated that his "buddy told [him] to be careful because of her age. He is going to get a kick out of this." Cass did not make any threats or promises to defendant or force or coerce defendant to speak to her. Defendant did not appear sick, injured, intoxicated or under the influence of drugs.
The above constituted the relevant testimony and evidence presented during the hearing.
CONCLUSIONS OF LAW
Regarding defendant's oral statements, in New York, a confession or admission is admissible at trial only if its voluntariness is established by the People beyond a reasonable doubt (see, People v Valerius, 31 NY2d 51). The issue is whether, under the totality of the circumstances, defendant's statements were obtained in violation of his constitutional right against self-incrimination and/or right to counsel. The prosecution has the burden to negate the issue and to establish voluntariness beyond a reasonable doubt.
Regardless of whether Cass properly advised defendant of his Miranda rights, the Court concludes that defendant's oral statements to Cass were spontaneous and not the product of police interrogation and, as such, Miranda warnings were not required (see, People v Wearen, 19 AD3d 1133, lv denied 5 NY3d 834). Defendant's oral statements were not the product of coercion, pressure, or any other improper form of inducement (see, People v Guthrie, 222 AD2d 1084, lv denied 87 NY2d 973; People v Williams, 222 AD2d 468, lv denied 88 NY2d 887). Therefore, the Court determines that defendant's statements as noticed in the CPL 710.30 notice were obtained with due regard to his constitutional rights, and as such, his statements are duly admissible at trial.
III.Search Warrant
Defendant contends that information from his Yahoo, Inc. account was improperly seized pursuant to an improperly issued search warrant. The People oppose suppression on the grounds that defendant does not have a legitimate expectation of privacy in documents maintained by a third party.
A "[d]efendant lacks standing to challenge the seizure of documents that are maintained by third parties because he [or she] has no privacy interest in them" (People v Daniel, 206 AD2d 856, 857, lv denied 84 NY2d 906; see, Fisher v United States, 425 US 391; People v Di Raffaele, 55 NY2d 234 [the defendant had no legitimate expectation of privacy in the records maintained by the telephone company with respect to either his own telephone or that of his friend]; People v Orzel, 192 AD2d 818, 819 [the defendant lacked standing to object to the seizure of telephone company records pursuant to unauthorized subpoenas, having no possessory or proprietary [*8][*9]interest in or legitimate expectation of privacy respecting the contents of records maintained by a telephone company]; People v Doe, 96 AD2d 1018, 1019 [the defendant's bank records belong to the bank and the customer has no proprietary or possessory interest in them]). Therefore, defendant lacks standing and his motion to suppress the information supplied to the police from Yahoo, Inc. pursuant to the search warrant is denied.
Accordingly, it is
ORDERED that defendant's motion to dismiss the indictment is denied. Defendant's motion to suppress his statements is denied. Defendant's motion to suppress evidence seized from Yahoo, Inc. is denied.
The above constitutes the Decision and Order of this Court.
Dated:Rochester, New York
December 15, 2006
____________________________________
Hon. Joseph D. Valentino
Justice Supreme Court
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