People v Barber

[*1] People v Barber 2014 NY Slip Op 50193(U) Decided on February 18, 2014 Criminal Court Of The City Of New York, New York County Statsinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2014
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Ian Barber, Defendant.



2013NY059761



For the Defendant:

Benjamin Dell

The Legal Aid Society

49 Thomas Street

New York, New York 10013

For the People:

Jennifer Abreu

Office of the District Attorney

New York County

One Hogan Place

New York, New York 10013

Steven M. Statsinger, J.

This case appears to the first in which a New York court has considered criminal charges stemming from what has come to be known as "revenge porn."[FN1] Defendant is accused of posting nude photos of the complainant, who was then his girlfriend, to his Twitter account and to have sent those same photos to her employer and sister, without her consent. After carefully considering the allegations in the Information, the Court concludes that defendant's conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged.

Specifically, defendant is charged with Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(1)(a) (Count One), Dissemination of an Unlawful Surveillance [*2]Image in the Second Degree, in violation of Penal Law §250.55 (Count Two), and Public Display of Offensive Sexual Material, in violation of Penal Law §245.11(a) (Count Three). For the reasons that follow, the Court GRANTS the motion to dismiss as to all counts.[FN2]

I. FACTUAL BACKGROUND

A. The Allegations

According to the Misdemeanor Complaint, on July 26, 2013, at approximately 3:00 p.m., the defendant posted naked pictures of Adriana Batch, who was then his girlfriend, on his Twitter account, and also sent those pictures to Ms. Batch's employer and sister.[FN3] Ms. Batch did not give the defendant permission or authority to do this. Defendant admitted to a detective that he posted and sent the pictures, but asserted that he informed or obtained permission from Ms. Batch before doing so.

B. Legal Proceedings

On August 2, 2013, the defendant was arraigned on a Misdemeanor Complaint charging him with Aggravated Harassment in the Second Degree, in violation of Penal Law §240.30(1)(a), Dissemination of an Unlawful Surveillance Image in the Second Degree, in violation of Penal Law §250.55, and Public Display of Offensive Sexual Material, in violation of Penal Law §245.11(a). Defendant was released on his own recognizance, and the case was adjourned to August 28, 2013, for conversion; specifically, a Supporting Deposition from Adrianna Batch.

On August 28, 2013, the People filed and served a supporting deposition from Ms. Batch, which converted the Misdemeanor Complaint into an Information, and the Court set a motion schedule.

Defendant filed the instant motion to dismiss on November 26, 2013. The People filed their response at the December 12, 2013, calendar call. The case has been sub judice since December 12, 2013.

II. DISCUSSION

The Information alleges that defendant posted naked pictures of Ms. Batch to his Twitter account and sent those same pictures to her employer and her sister, all without her knowledge or consent, and charges the defendant with Aggravated Harassment in the Second Degree, in violation of Penal Law § 240.30(1)(a) (Count One), Dissemination of an Unlawful Surveillance Image in the Second Degree, in violation of Penal Law §250.55 (Count Two), and Public Display of Offensive Sexual Material, in violation of Penal Law §245.11(a) (Count Three). For the reasons that follow, the court finds that the Information is facially insufficient as to all three counts.

A. The Information

Because this motion requires a detailed examination of the content of the accusatory instrument, the complete text of its factual recitation, as sworn out by Detective Anthony Cozzi, is set out below. I am informed by Adrianna Batch, of an address known to the District [*3]Attorney's Office, that she observed the defendant's Twitter account post naked pictures of herself and that she recognized the Twitter account as belonging to the defendant. Ms. Batch informed me that she did not give the defendant permission or authority to post naked pictures of herself. Ms. Batch also informed me that she observed that the defendant sent the pictures on Twitter to her employer and sister.The defendant stated in substance to me that he posted naked pictures of Ms. Batch on his Twitter account and that he did inform or obtain permission from Ms. Batch to post said naked pictures.

B. Facial Insufficiency in General

To be facially sufficient, an Information must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, 42 NY2d 98 (1977). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL §70.10 (2).

This standard does not require that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, it need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial insufficiency must assume that the factual allegations contained in the Information are true and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360. Under these standards, the accusatory instrument here is facially insufficient.

C. Legal Analysis

1. Count Two - Dissemination of an Unlawful Surveillance Image in the Second Degree

Defendant moves to dismiss Count Two, which charges Dissemination of an Unlawful Surveillance Image in the Second Degree, as facially insufficient. Only one other court has had occasion to construe Penal Law § 250.55, which has been in effect only since 2003. Despite this dearth of case law, it is clear that this section, by its very terms, requires more than the mere posting of an image on a social networking site such as Twitter or the sending of an image other persons. See People v. Morriale, 20 Misc 3d 558 (Crim Ct NY County 2008) (defendant used a camera phone to surreptitiously record himself having sexual intercourse with the complainant, then sent the video to at least one other person). Since that is all that is alleged here, Count Two is facially insufficient.

Section 250.55 provides that a "person is guilty of dissemination of an unlawful surveillance image in the second degree when he or she, with knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in [*4]the first or second degree, intentionally disseminates such image or images."

The Court begins by parsing § 250.55 into its elements. Those elements are:

1. Dissemination: The Intentional dissemination of an image of the sexual parts of another person or persons;

2. Unlawful Conduct: Unlawful conduct in obtaining the image that would constitute a violation of Penal Law § 250.45 (Unlawful Surveillance in the Second Degree) or Penal Law § 250.50 (Unlawful Surveillance in the First Degree). In order to establish this second element, the statute requires proof that the defendant violated § 250.45 in obtaining the image in one or more of the following ways: a. For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; orb. For his or her own, or another person's sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; orc. For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person's knowledge or consent ; ord. Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.

Alternatively, the People can satisfy the Unlawful Conduct element by establishing that the defendant engaged in one or more of the above acts having been previously convicted of a violation of § 250.50 or § 250.45 within the past ten years. Penal Law § 250.50; and

3. Knowledge: The People must establish that the defendant knew of the unlawful conduct - described above - by which the image was obtained.

Here, the Information pleads facts only in support of the first element of § 250.55 - an intentional dissemination of naked pictures of the complainant. It pleads no facts at all regarding the manner in which the pictures were obtained, let alone the specific types of unlawful behavior identified in § 250.45, which is incorporated by reference into § 250.55. The Information also pleads no facts from which it could be inferred that defendant knew anything about the manner in which the photographs were obtained. [*5]

The Court notes that the accusatory instrument in Morriale was considerably more detailed than the Information here, yet it was still facially insufficient. Unlike the Information here, the Information there contained allegations about how the defendant obtained the images - he used a camera phone to record himself having sexual intercourse with the complainant without her knowledge or authority. 20 Misc 3d at 560. But it was still insufficient in that it failed to allege all of the elements of either § 250.45, in particular the requisite intent, the specific location, and the complainant's expectation of privacy, or of § 250.50, in particular the prior conviction. Id. at 560-61.

The Information here is even thinner. Accordingly, the charge of Dissemination of an Unlawful Surveillance Image in the Second Degree is dismissed as facially insufficient.

2. Counts One and Three are Also Facially Insufficient

Although defendant's motion to dismiss raises a facial sufficiency challenge only to Count Two, the requirement of a facially sufficient accusatory instrument is jurisdictional and nonwaivable. Alejandro, 70 NY2d at 136 ("an information which fails to contain nonhearsay allegations establishing if true, every element of the offense charged and the defendant's commission thereof ... is fatally defective") (citation and internal quotation marks omitted). Accordingly, the Court has an independent obligation to review for facial sufficiency as a means of assuring that it retains subject matter jurisdiction. See, e.g., People v. Martini, 36 Misc 3d 729, 731-32 (Crim Ct Queens County 2012); People v. Machado, 182 Misc 2d 194, 197-98 (Crim Ct Bronx County 1999). Having undertaken a sua sponte review of the Information, the Court readily concludes that it is facially insufficient as to Counts One and Three, as well. a. Count One - Aggravated Harassment in the Second Degree

In this case, the accusatory instrument does not allege that the defendant either communicated directly with the complainant or that he induced others to do so. Since the mere posting of content, however offensive, on a social networking site such as Twitter does not constitute Aggravated Harassment in the Second Degree, the Court grants defendant's motion to dismiss Count One.

"A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm." Penal Law § 240.30(1)(a). Clearly, it is essential to a charge of Penal Law §240.30(1)(a) that the defendant undertake some communication with the complainant. People v. Thompson, 28 Misc 3d 483 (Crim Ct Kings County 2010); People v. Miguez, 147 Misc 2d 482 (Crim Ct NY County 1990), aff'd 153 Misc 2d 442 (1992). In this case, however, the Information contains no factual allegation supporting the inference that the defendant had any communication at all with Ms. Batch. It does not even allege that she received a Tweet from him containing the pictures, only that she saw that defendant had posted them on his Twitter account and saw that he had emailed them to her employer and sister.

Penal Law § 240.30(1) "was intended to include communications which are obscene ..., threats which are unequivocal and specific, ... [and] communications which are directed [*6]to an unwilling recipient under circumstances wherein substantial privacy interests are being invaded in an essentially intolerable manner' ." People v. Smith, 89 Misc 2d 789, 791 (App Term 2d Dept 1977), emphasis added and citations omitted. Here, defendant is not alleged to have sent anything to Ms. Batch; r ather, he is alleged only to have posted naked photographs of Ms. Batch on his Twitter account, and to have sent them to her employer and to her sister. Absent any communication directly to the complainant, this conduct does not constitute Aggravated Harassment in the Second Degree.

Not only does the Information not allege that defendant himself sent anything to Ms. Batch, if also fails to allege that he induced others to communicate with her. This case is accordingly unlike People v. Kochanowski, 186 Misc 2d 441 (App Term 2d Dept 2000), where the defendant caused a website to be created that displayed suggestive photographs of the complainant, his ex-girlfriend, along with her address and telephone number and suggested that third parties contact her for sex, which they in fact did. Here, by contrast, defendant simply posted the his materials on Twitter without any contact with Ms. Batch or suggestion that she be contacted. The court in Kochanowski held that by using a computer, the defendant and a co-worker "cause[d] a communication to be initiated by mechanical or electronic means or otherwise' ... . The means by which communication to the victim was made was the telephone, a device plainly within the ambit of the statute ." Id. at 443, citations omitted, emphasis in original. Defendant there violated § 240.30(1)(a) - even though he did not "plac[e] the phone call to his victim himself " - because he "used others to do so." Id. at 444.

In the instant case, the defendant did not cause a communication to Ms. Batch to be initiated by mechanical or electronic means, or indeed at all. He did not communicate with Ms. Batch directly via computer, nor did he use the computer to encourage others to do so. He merely posted photographs to his Twitter account, where Ms. Batch saw them, and sent them to third parties, who apparently showed them to her. Importantly, however, there is no allegation that they did so at defendant's behest.

This case is accordingly similar to People v. Dupont, 107 AD2d 247 (1st Dept 1985), where the defendant distributed printed material accusing the complainant of homosexuality and dishonest business dealings. The material was, however, never distributed directly to the complainant. In reversing the defendant's conviction for Aggravated Harassment in the Second Degree, the court held that "the harassment statute" was intended to "punish[] .. annoying and harassing communications transmitted directly to the complainant. It was not designed to prevent the dissemination, let alone the publication of vexatious material about an individual. There may be civil remedies for such conduct. Offensive as the defendant's activities may have been, they did not violate the statute." Id. at 252. Here, similarly, there is there is no allegation of a "direct communication ... [an] interference with privacy, nor is there a use or tying up of phone lines. There is merely the distribution of [*7][materials over Twitter], offensive though it may be. Such conduct is plainly not within the hard core' of the statute's proscriptions." Id.[FN4]

Accordingly, defendant's motion to dismiss the charge of Aggravated Harassment in the Second Degree on the ground of facial insufficiency is granted.

b . Count Three - Public Display of Offensive Sexual Material - Penal Law § 245.11(a)

Count Three alleges a violation of Penal Law § 245.11. The Court concludes that merely posting nude pictures on a Twitter account or sending them to a small number of private individuals does not violate this section.

Penal Law § 245.11 provides that

A person is guilty of public display of offensive sexual material when, with knowledge of its character and content, he displays or permits to be displayed in or on any window, showcase, newsstand, display rack, wall, door, billboard, display board, viewing screen, moving picture screen, marquee or similar place, in such manner that the display is easily visible from or in any: public street, sidewalk or thoroughfare; transportation facility; or any place accessible to members of the public without fee or other limit or condition of admission such as a minimum age requirement and including but not limited to schools, places of amusement, parks and playgrounds but excluding rooms or apartments designed for actual residence; any pictorial, three-dimensional or other visual representation of a person or a portion of the human body that predominantly appeals to the prurient interest in sex, and that: (a) depicts nudity, or actual or simulated sexual conduct or sado-masochistic abuse. . . .

Statutes "punishing indecent exposure, though broadly drawn, must be carefully construed to attack the particular evil at which they are directed." People v. Price, 33 NY2d 831, 832 (1973). In light of this admonition, the Information here is insufficient as to two elements of the offense.

First, the Information fails to sufficiently plead facts from which it can be inferred that there was a "public display" of the pictures of Ms. Batch. The terms of the statute clearly do not encompass either posting an image on Twitter - a subscriber-based social networking service[FN5]- or sending images to a small number of private individuals, who might not even look at the email or open the attachments. Both of these are private acts. As the Court of Appeals has observed, "it is [*8]obvious that article 245 was aimed at protecting the public—in essence, unsuspecting, unwilling, nonconsenting, innocent, surprised or likely-to-be offended or corrupted types of viewers' ... from the sight of offensive activities and materials." People v. McNamara, 78 NY2d 626, 631 (1991). Even taking into account the vast technological changes since 1971, when § 245.11 was enacted, the actions alleged here simply do not constitute the "indiscriminate thrust upon unwilling audiences," People v. Isaac, 69 Misc 2d 758, 760-61 (Crim Ct Bronx County 1972), that the statute was intended to cover.

The Information also fails to sufficiently plead facts from which it can be inferred that the pictures at issue "predominantly appeal[ed] to the prurient interest in sex" as required by § 245.11. As to this element, it is not enough to simply plead that the images were of a naked person, which is all the Information here alleges. The statute clearly requires both that the image "depict[] nudity"[FN6] and that the image "predominantly appeal to the prurient interest in sex."

Case law amply supports the proposition that nudity alone is not enough. In People v. Oshry, 131 Misc 2d 888, 897 (Just Ct Town of Clarkstown 1986), a photograph of a man fondling the bare buttocks of a woman appealed to the "prurient interest." It was a "highly sensual, erotic picture bluntly suggestive of dynamic sexual conduct between the parties. It invites, even commands one to consider the imminence of further sexual conduct since the hands are grasping or holding the buttocks and their bodies are clearly pressed against each other." Id. By contrast, People v. Lou Bern Broadway, Inc., 68 Misc 2d 112, 112 (Crim Ct NY County 1971), aff'd, 73 Misc 2d 497 (App. Term 1st Dept. 1971), rev'd, 32 NY2d 816 (1973), involved a prosecution under § 245.11 for a large photograph of a nude woman in a "prone position with her buttocks exposed and visible," displayed outside a movie theater along with several smaller photographs of women "apparently nude, with opaque or translucent coverings over buttocks and breasts." The Court of Appeals concluded that "the displays in this case, as a matter of law, do not fall within the proscription of the statute." 32 NY2d at 816. Here, as in Lou Bern, the allegation of a depiction of nudity, by itself, does not violate § 245.11.

The Information here fails to allege any sort of public display, and alleges only that the images contained nudity, without any facts in support of the "prurient interest" element. Count Three is accordingly facially insufficient.

III. CONCLUSION

For the foregoing reasons, all Counts of the Information are dismissed as facially insufficient. In light of this, the other branches of the defendant's omnibus motion are denied as moot.

This constitutes the Decision and Order of the court.

Dated: February 18, 2014_______________________

New York County, New YorkSteven M. Statsinger [*9]

Judge of the Criminal Court Footnotes

Footnote 1: This phenomenon has become common enough to have its own Wikipedia page, which defines the conduct as "sexually explicit media that is publicly shared online without the consent of the pictured individual." http://en.wikipedia.org/wiki/Revenge_porn (last accessed February 11, 2014). That is precisely what is alleged in this case.

Footnote 2: In reaching this decision the Court has considered, in addition to the relevant statutes and case law, the defendant's dismissal motion and the People's opposition papers.

Footnote 3: The Misdemeanor Complaint does not specify the means by which defendant is alleged to have sent the pictures to these individuals, but the most reasonable inference is that it was by email.

Footnote 4: Finally, the Court also finds that the Information is facially insufficient on an alternative theory defendant violated § 240.30(1) when he sent the pictures to her employer and sister. More facts than that would need to be pled to proceed on this theory.

Footnote 5: Apparently Twitter permits some limited ability for non-account holders to receive Tweets. See https://support.twitter.com/articles/20170004-fast-following-on-sms (last accessed February 13, 2014). But those who wish to see them must actively look for them.

Footnote 6: "Nudity" means: "the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state." Penal Law § 245.10.