Friday, February 28, 2014

Methamphetamine, the Cell Phone and Hearsay

After he was convicted of “one count of dealing in methamphetamine as a Class A felony” in violation of Indiana Code § 35–48–4–1.1(b)(3)(B)(iii), Shane L. Duckworth appealed.  Duckworth v. State, 2014 WL 199952 (Indiana Court of Appeals 2014). On appeal, he argued that the judge “erred by admitting into evidence text messages that were extracted from his cell phone” at his trial.  Duckworth v. State, supra.

This, according to the opinion, is how the prosecution arose:

On June 18, 2012, Christopher Orman was at his sister's home at 1625 B Dresden in Evansville, Indiana. Orman received a telephone call from some acquaintances asking if they could come over to visit with him. Shortly thereafter, Duckworth and Eddie Payne arrived, bringing . . . methamphetamine as well as two duffel bags, each containing materials and precursors used in the manufacture of methamphetamine. Orman had allowed Duckworth and Payne to bring over the precursors, and allowed them to set up the methamphetamine lab in exchange for some methamphetamine for himself. Orman indicated he `just told them to throw [him] some, that's a term that they use.’ . . . 

When Duckworth and Payne were beginning the methamphetamine manufacturing process, Orman was in the kitchen . . . smoking some of the methamphetamine. Orman assumed the process would be `put together’ at his sister's home, but the actual manufacture of the methamphetamine would be started somewhere else. . . . Because he believed the manufacturing process would not be started there, he opened a window to fan out the fumes. . . .

On that night, Officer Cara Mattingly of the Evansville Police Department was working the third shift. Mattingly was in the neighborhood of 1625 B Dresden when she detected `a really strong chemical smell.’ . . . Mattingly had training in the identification and detection of methamphetamine and methamphetamine labs, and in her duties encountered them on approximately thirty occasions. She described the odors she encountered that night as `very strong,’ so much so that she could detect them at least two houses away from . . .1625 B Dresden. . . . Eventually, she determined the residence at 1625 to be the source of the odor.

During the manufacturing process . . . Duckworth decided to leave the residence to buy some `smoke bottles’ from Wal–Mart. . . . A `smoke bottle’ is a plastic soft drink or water bottle used in the last stages of the methamphetamine manufacturing process. . . . As Mattingly neared the home at 1625 B Dresden, she saw . . . and stopped Duckworth. Other members of the Evansville Police Department arrived on the scene. Mattingly read Duckworth his Miranda warnings, and [he] consented to a search of his pockets, in which he had clear plastic tubing. Mattingly immediately took the tubing into evidence.

Among the other officers who responded . . . was Drug Task Force member Brian Watson, Methamphetamine Suppression Unit Detective Brock Hensley. and Methamphetamine Suppression Unit Detective Patrick McDonald. Detective Hensley has encountered over 300 methamphetamine labs in his experience. . . .

When Watson arrived at the location where Mattingly stopped Duckworth and recovered the plastic tubing, he also smelled . . . a `strong chemical odor,’ which based upon his experience and training he associated with the manufacture of methamphetamine. . . . The other officers who had arrived to assist Mattingly went to the back door of the house where they saw Payne exiting the house. The officers stopped him there.

Orman slammed the door to the house shut and hid inside until a SWAT team arrived. Orman then attempted to exit the house through an attic window. Orman later told officers he tried to leave through the attic window because he was scared and knew there was a methamphetamine lab inside the house.

Duckworth told Watson . . . that Orman invited him over to the house to `get high.’ . . . He said Orman had the pseudoephedrine needed to manufacture the methamphetamine. Duckworth was familiar with the manufacturing process and could smell the odors emanating from 1625 B Dresden, which were consistent with those of a methamphetamine lab.

When Orman spoke with police officers, he told them Payne and Duckworth offered him methamphetamine in exchange for letting them manufacture [it] at the house. Orman was arrested by the police and was . . . charged with dealing and conspiracy to deal methamphetamine. Orman eventually pleaded guilty in exchange for a reduced sentence and intensive rehabilitation for addicts through drug court. . . .

[O]fficers . . . obtained a search warrant for Orman's sister's home. . . .

Duckworth v. State, supra.

The officers executed the warrant and seized a variety of evidence, all of which “was indicative of a methamphetamine lab that was in the process of manufacturing methamphetamine.”  They also took Duckworth’s

cell phone into evidence. Officer Kirk Kuester of the Vanderburgh County Sheriff's Department, who had received training in the investigation of cell phones and the extraction of information from cell phones, performed an extraction of information on Duckworth's cell phone.

In particular, Kuester conducted a logical and physical extraction of information from Duckworth's cell phone. Kuester extracted a phone book, a calendar, contacts information, text messaging, phone logs, and audio/video information. He prepared a report of the text messages extracted from Duckworth's cell phone.

Detective Hensley, who was familiar with the slang terminology used by manufacturers and users of methamphetamine, testified at trial that Duckworth's text messages included a multitude of examples of terms for methamphetamine use and manufacture.

Duckworth v. State, supra.

As noted above, Duckworth was charged “with dealing in methamphetamine” and went to trial. Duckworth v. State, supra.

During Duckworth's trial he objected to the admission of the cell phone and to the contents of the cell phone, which were extracted by Kuester. Duckworth contended that the contents were not authenticated and contained hearsay. Out of the presence of the jury, the trial court ruled that the evidence was admissible, over Duckworth's objection. At the conclusion of the jury trial, Duckworth was found guilty. Duckworth was sentenced to thirty-two years imprisonment.

Duckworth v. State, supra.

As noted above, Duckworth also argued, on appeal, that the trial judge erred in admitting the cell phone and its contents into evidence.  Duckworth v. State, supra.  The Court of Appeals began its analysis of his argument by explaining that the

standard of review for admissibility of evidence issues is whether the trial court's decision resulted in an abuse ofits discretion. Allen v. State, 813 N.E.2d 349 (Indiana Court of Appeals 2004).  The decision whether to admit evidence will not be reversed absent a showing of manifest abuse of a trial court's discretion resulting in the denial of a fair trial. Allen v. State, supra. Generally, errors in the admission or exclusion of evidence are to be disregarded as harmless unless they affect the substantial rights of a party. Allen v. State, supra. In determining whether an evidentiary ruling affected a party's substantial rights, the court assesses the probable impact of the evidence on the trier of fact. Allen v. State, supra.

Duckworth v. State, supra. 

The Court of Appeals then began its analysis with Duckworth’s argument that the contents of the cell phone were inadmissible hearsay, explaining that the

primary basis for Duckworth's objection to the admission of the evidence extracted from his cell phone is that it was comprised of hearsay evidence. Hearsay is a `statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Indiana Evidence Rule 801(c). Hearsay is not admissible unless it falls within one of the exceptions found in the evidence rules. Indiana Evidence Rule 802. Additionally, the same statement offered for another purpose is not hearsayGrund v. State, 671 N.E.2d 411 (Indiana Supreme Court 1996).

The text messages recovered from the cellphone that had been received by Duckworth were admitted to show the identity of the recipient and person responding to the text messages. The trial court allowed the admission of those text messages for that purpose.

Because the texts were admitted for another purpose, to establish the identity of the recipient and responder, and not to prove the truth of the contents of the text messages, the text messages were not excludable as inadmissible hearsay. As for the text messages sent by Duckworth, those were correctly admitted as statements made by a party opponent. Indiana Rule of Evidence 801(d)(2)(A) & (B).

Duckworth v. State, supra.  For more on the basic rule barring hearsay and the exceptions to that rule, check out this prior post.

Next, the Court of Appeals took up Duckworth’s argument that the phone was not properly authenticated.  As I have explained in prior posts, to be admissible in court, evidence must be authenticated, i.e., must be shown to be what it is represented to be.  Indiana Rule of Evidence 901 incorporates this principle, stating that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” 

The court then addressed the authentication of Duckworth’s phone, noting that

In Hape v. State,903 N.E.2d 977 (Indiana Court of Appeals 2009), we stated the following with respect to the authentication of cellular phone evidence:

`Before the cellular telephones were admitted into evidence, a police officer testified about how the items seized from Hape, which included the telephones, were catalogued and tracked. The officer identified the exhibit on the record, and testified he had personally initialed the seals across the top and side of the bag. The State presented sufficient evidence to authenticate that the cellular telephones were the telephones retrieved from Hape, and their admission into evidence did not constitute error.’

Duckworth v. State, supra (quoting Hape v. State, supra).

The Court of Appeals then noted that as in Hape,

here, the officers recovered the cell phone from Duckworth, testified as to how the evidence was recovered and catalogued, identifying all of the exhibits including the cell phone itself. The officers testified that the text messages which were extracted were from the cell phone recovered from Duckworth. Duckworth did not object to the admission of the cell phone.

Duckworth v. State, supra.  The court also pointed out that, in Hape, it stated that Indiana Rule of Evidence 901(a)’s requirement of authentication “is satisfied by a showing that the images contained in the exhibits were recovered from [the defendant's] computer.” Hape v. State, supra.  The Hape court also stated that it saw “no reason why the writings or recordings generated and saved inside of a cellular telephone should be exempted from the same authentication requirement.”  Hape v. State, supra. 

The Court of Appeals then applied those standards to Duckworth’s argument:

Kuester testified about the manner in which the text messages were recovered, the standard method of operation for conducting the extractions, both logical and physical, and that Kuester had received extensive training in each of the methods of extraction. Therefore, there was ample evidence to support the admission of the evidence in question.

Assuming, arguendo, that the trial court erred by admitting the evidence at issue, such would constitute harmless error. There was sufficient other evidence to establish Duckworth's familiarity with the manufacturing process of methamphetamine, Duckworth's possession of materials used for the same, and that Duckworth brought in a duffel bag full of precursors used in the manufacture of methamphetamine. The use of slang drug terms in text messages, is cumulative of evidence already properly admitted in evidence. We find no reversible error here.

Duckworth v. State, supra. 

Wednesday, February 26, 2014

Emails, Endangering the Welfare of a Child and the Sex Offender Registry

This post examines an opinion the Missouri Court of Appeals issued recently in a civil case:  John Doe, a Missouri man’s alias, brought an action seeking a declaratory judgment “that he not be required to register as a sex offender under the federal or state sex offender registries.”  Doe v. Isom, 2014 WL 606555 (MissouriCourt of Appeals 2014).  As Wikipedia explains, a declaratory judgment is the

legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties. . . .

As to how Doe came to be on the sex offender registry, the opinion says that in May of 2008,

Doe hacked into the email account of A.R., the 15 year-old-daughter of Doe's ex-girlfriend. Doe discovered a prior email A.R. had sent to her friend, which contained a picture of A.R. touching her genitals. Doe then proceeded to email that photograph to 14 individuals listed in A.R.'s email contact list, as well as blind carbon copying A.R.'s high school principal.

Doe v. Isom, supra.  The opinion notes that (i) “A.R. admitted to taking and emailing the picture to her friend”; and (ii) “[i]t was alleged that several of the recipients of the email (which included the photograph) were under the age of 17.”  Doe v. Isom, supra. 

The opinion also explains that some time after this happened, the

St. Charles County Prosecutor's office filed a Substitute Information in Lieu of Indictment charging Doe with the following six counts: (1) one count of endangering the welfare of a child in the first degree, in violation of Section 568.045; (2) two counts of promoting child pornography to a minor in the second degree, in violation Section 573.035; (3) two counts of promoting child pornography in the second degree, in violation of Section 573.035; and (4) one count of tampering with computer users, in violation of Section 569.099.

On March 24, 2009, Doe pled guilty in the Circuit Court of St. Charles County, to the class C felony of endangering the welfare of a child in the first degree, in violation of Section 568.045, and the class A misdemeanor of tampering with computer users, in violation of Section 569.099. Doe received, inter alia, a suspended execution of sentence and was placed on probation for a term of five years.

Doe v. Isom, supra. 

About six months after he pled guilty, Doe’s Probation Officer directed him to the

St. Louis Metropolitan Police Department Sex Offender Registration Office to determine whether Doe was required to register as a sex offender. After a determination that he must register, Doe filed his initial registration with Missouri's Sex Offender Registry on September 11, 2009.

Soon thereafter, Doe filed motions for his removal from the sex offender registries in the Circuit Court of St. Charles County. However, these motions were denied by the trial court in St. Charles County premised upon the reasoning that Doe's removal from the sex offender registry had to be filed in the jurisdiction where Doe resided -- the City of St. Louis.

Doe v. Isom, supra. 

Almost three years later, Doe filed a

Petition for Declaratory Judgment for Removal from the Sex Offender Registry and Destruction of Records in the Circuit Court of the City of St. Louis. Doe sought a declaratory judgment that he not be required to register as a sex offender under the federal or state sex offender registries. Almost a year later, on January 30, 2013, the trial court entered an Order and Judgment granting Doe's Petition, finding Doe was not obligated to register under either federal or state law, and that his registration be removed from all sex offender registries.

Doe v. Isom, supra. 

Colonel Daniel Isom, Chief of Police for the Metropolitan Police Department, City of St. Louis, the St. Louis Circuit Attorney's Office and the Missouri State Highway Patrol then appealed the declaratory judgment in favor of Doe, which is how this action arose.  Doe v. Isom, supra.  The opinion refers to them as the “Appellants.”  Doe v. Isom, supra. 

The Court of Appeals began its analysis of the issues in the case by explaining that in

2006, the United States Congress passed, and the President signed, the Adam Walsh Child Protection and Safety Act of 2006 (`AWA). See Pub.L. No. 109–248 (2006). For the purpose of `protect[ing] the public from sex offenders and offenders against children,’ Title I of AWA . . . created the federal Sex Offender Registration and Notification Act (`SORNA’), 42 U.S. Code § 16901 et seq., a `comprehensive national system for the registration of those offenders.’ 42 U.S. Code § 16901. SORNA `requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries.’ Reynolds v. U.S., 132 S.Ct. 975 (2012). . . .

[T]o accomplish this purpose, SORNA requires states to `maintain a jurisdiction-wide sex offender registry’ that complies with the standards set forth by SORNA. 42 U.S. Code § 16912(a). . . . In Missouri, the corresponding registry to that of SORNA's federal registry has been in force since 1995. R.W. v. Sanders, 168 S.W.3d 65 (Missouri Supreme Court en banc 2005). However, since 1995 there have been substantial amendments to what is known as Missouri's Sex Offender Registration Act (`SORA’), Sections 589.400-589-425. Roe v. Replogle, 408 S .W.3d 759 (Missouri Supreme Court en banc 2013).

Doe v. Isom, supra. 

The Appellants made two arguments:  First, they argued that the trial court erred in granting Doe’s request for a declaratory judgment because he “is a `sex offender for purposes of SORNA, and is therefore obligated to register under both SORNA and SORA.”  Doe v. Isom, supra.  Second, they argued that

even if Doe is not deemed a `sex offender’ for purposes of SORNA, the trial court erred in finding Doe did not have an obligation to register under SORA, because the offense to which Doe pled guilty was `sexual in nature.’ Thus, Appellants contend Doe has an obligation to register under SORA, regardless of his registration obligations under SORNA.

Doe v. Isom, supra. 

The Court of Appeals began its analysis of the first argument by explaining that the “dispositive question before this Court is whether Doe's guilty plea to endangering the welfare of a child in the first degree, under [Missouri Statutes § 568.045], makes him a `sex offender,’ subject to SORNA's and SORA's registration requirements.”  Doe v. Isom, supra.  It then explained that SORNA defines a “sex offender” as an

`individual who was convicted of a sex offense.’ 42 U.S .Code § 16911(1). . . . Apart from exceptions not applicable here, `sex offense,’ in turn, is either:

(i) a criminal offense that has an element involving a sexual act or sexual contact with another;

(ii) a criminal offense that is a specified offense against a minor;

(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18;

(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105–119(10 U.S. Code 951 note); or

(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).

42 U.S. Code § 16911(5).

The Court of Appeals found that “[u]nder the facts of this case, only subparagraph (ii) . . . could provide a basis to require Doe to register as a sex offender under SORNA”, i.e., was his guilty plea to “`a criminal offense that is specified against a minor?” Doe v. Isom, supra. It explained that in deciding whether Doe qualified as a “sex offender” under that provision, it would address two issues: 

(1) we will consider whether a violation of Section 568.045 is a `criminal offense’ as defined by SORNA; and (2) we will decide whether Doe's particular conviction for endangering the welfare of a child in the first degree was `a specified offense against a minor.’

Doe v. Isom, supra.

It found, first, that Doe’s guilty plea to violating Missouri Statutes § 568.945 was a plea to a “criminal offense” under the sex offender statutes.  Doe v. Isom, supra. It reached this conclusion because 42 U.S. Code§ 16911(6) defines a “criminal offense” as a “State, local tribal, foreign or military offense”.  Doe v. Isom, supra.

The court then took up the second issue, i.e., whether the plea was to a “specified offense against a minor.”  Doe v. Isom, supra.  It noted that A “a subsequent subsection of SORNA . . . expands the definition of the phrase `specified offense against a minor’ to include `all offenses by child predators [.]’” Doe v. Isom, supra (quoting 42 U.S. Code § 16911(7)) (emphasis in the original).  The Court of Appeals explained that it t did not find it necessary to consider whether the offense qualified under any of the other sections of 42 U.S. Code § 16911 because it found the “`catchall provision’” codified in § 16911(7) “to be dispositive” of the issue.  Doe v. Isom, supra.

The court then took up the second issue, i.e., whether Doe’s plea to endangering the welfare of a child was a “specified offense against a minor”. Doe v. Isom, supra. The court found that, in addressing this issue, it had to “define `sex offense.’” Doe v. Isom, supra. It noted that

[a]ccording to the United States Attorney General, [the term `sex offense’] `is intended to ensure coverage of convictions under statutes defining sexual offenses in which the status of the victim as a minor is an element of an offense, such as specially defined child molestation or child prostitution offenses, and other offenses prohibiting sexual activity with underage persons.’

Doe v. Isom, supra (quoting Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 73 Federal Register 38030–01, 38050 (July 2, 2008)).

The Court of Appeals explained that Doe pled guilty to violating Missouri Statutes § 568.045(1)(1), which makes it a crime to “knowingly” act “in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old”. Doe v. Isom, supra.  It then explained that while “this particular crime `is not in and of itself a sexual offense’”, but “the offense of endangering the welfare of a child in the first degree can relate to sexual offenses.”  Doe v. Isom, supra (emphasis in the original).

The court then found that Doe’s offense of

endangering the welfare of a child in the first degree, indeed, related to a sexual offense. As referenced in the trial court's Order and Judgment, Doe's offense involved `act[ing] in a manner that created substantial risk to the life and health of A.R., a child less than seventeen years old by disseminating nude pictures of A.R. touching her genitals to her friends, students at her school, and to other adults.’ (emphasis added)

Obviously, the charging document demonstrates that Doe's conduct was not merely tinged with a sexual nature; an adult male circulating nude and provocative images of an individual under the age of seventeen to other individuals clearly constitutes `conduct that by its nature is a sex offense against a minor’ -- the sexually-laced conduct Congress sought to include in SORNA's registration requirements.

 Doe v. Isom, supra (emphasis in the original).

The court also rejected Doe’s argument that his conduct was

not `against a minor’ but, rather, was `passive in nature as it pertained to the minor victim.’ Again, we reject this argument because `against a minor’ merely means the conduct as applied to the age of the victim and the `inquiry goes no further than determining whether the victim was a minor.’ U.S. v. Dodge, 597 F.3d 1347 (U.S. Court of Appeals for the 11th Circuit 2010).  Here, because no question exists that Doe endangered the welfare of minor, the word `against’ is a non-issue. U.S. v. Dodge, supra.

Doe v. Isom, supra.

Since the Court of Appeals found that “Doe meets the definition of `sex offender’ under SORNA, and is thereby required to register as a sex offender under federal law, Doe is . . . subject to the registration requirements of SORA.”  Doe v. Isom, supra. It therefore reversed the trial court’s granting Doe a declaratory judgment in his favor and remanded the case “for a finding consistent with this opinion.”  Doe v. Isom, supra.

Monday, February 24, 2014

Revenge Porn, Naked Pictures and Harassment

After he was charged “with Aggravated Harassment in the Second Degree, in violation of [New York] Penal Law § 240.30(1)(a), Dissemination of an UnlawfulSurveillance Image in the Second Degree, in violation of [New York] PenalLaw § 250.55, and Public Display of Offensive Sexual Material, in violationof [New York] Penal Law § 245.11(a)”, Ian Barber filed a motion to dismiss the charges as “facially insufficient.”  People v. Barber, 2014 WL 641316 (Criminal Court, City of New York 2014).

The judge who has the case begins his opinion by noting that “[t]his 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.’” People v. Barber, supra. He explains that the revenge porn “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.’” People v. Barber, supra.

The judge then explained that according to the document that charged Barber with the crimes noted above,

on July 26, 2013, at approximately 3:00 p.m., [Barber] 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.  Ms. Batch did not give [him] permission or authority to do this. [Barber] 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.

People v. Barber, supra.  In a footnote, he explains that the charging document “does not specify the means by which [Barber] is alleged to have sent the pictures to these individuals, but the most reasonable inference is that it was by email.” People v. Barber, supra. 

The judge then noted that, since Barber was moving to dismiss the charges as “facially insufficient”, ruling on the motion required “a detailed examination of the content of the accusatory instrument”, i.e., the information that charged him.  People v. Barber, supra.  He explained that the “complete text of its factual recitation, as sworn out by Detective Anthony Cozzi” was as follows:

`I am informed by Adrianna Batch, of an address known to the District Attorney's Office, that she observed [Barber’s] Twitter account post naked pictures of herself and that she recognized the Twitter account as belonging to [him]. Ms. Batch informed me that she did not give [Barber] permission or authority to post naked pictures of herself. Ms. Batch also informed me that she observed that [he] sent the pictures on Twitter to her employer and sister.’

`[Barber] 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.’

People v. Barber, supra. 

The judge then took up the motion to dismiss, explaining that 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. [New York Criminal Procedure Law] § 100.40(1)(a)-(c). . . Reasonable cause to believe a person has committed an offense `exists when evidence or information which appears reliable discloses facts . . . 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.’ [NewYork Criminal Procedure Law] § 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 N.Y.2d 103 (New York Court of Appeals 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 N.Y.2d 354 (New York Court of Appeals 2000). 

A court reviewing for facial insufficiency must assume the factual allegations in the Information are true and must consider all reasonable inferences that may be drawn from them. [New York Criminal Procedure Law] §§ 100.40, 100.15; People v. Jackson,18 N.Y.3d 738 (New York Court of Appeals 2012).

People v. Barber, supra. 

The judge began his analysis of the Information with the dissemination of an unlawful surveillance image, which he found facially insufficient.  People v. Barber, supra.  He explained that New York Penal Law § 250.55 states that someone 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 the first or second degree, intentionally disseminates such image or images.’

People v. Barber, supra. 

The judge then parsed the crime into its constituent elements:  dissemination; unlawful conduct; and knowledge.  People v. Barber, supra.  He found the Information only pled facts that established the first element:  “an intentional dissemination of naked pictures of the complainant.”  People v. Barber, supra. 

He also found it pled no facts that established the second element:  unlawful conduct.  People v. Barber, supra.  The judge noted that “to establish this second element, the statute requires proof that the defendant violated [New York Penal Law] § 250.45 in obtaining the image in one or more of” four ways:

a. For his . . . amusement, entertainment, or profit, or for the purpose of degrading . . . a person, he . . . intentionally uses or installs. . . 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; or

c. For no legitimate purpose, he . . . intentionally uses or installs . . . 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; or

d. Without the knowledge or consent of a person, he . . . intentionally uses . . . 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.

 People v. Barber, supra  (quoting [New York Penal Law] § 250.45).

The judge found the Information “pleads no facts at all regarding the manner in which the pictures were obtained, let alone the specific types of unlawful behavior identified in [New York Penal Law] § 250.45, which is incorporated by reference into [New York Penal Law] § 250.55.”  People v. Barber, supra.  He also found it “pleads no facts from which it could be inferred that [Barber] knew anything about the manner in which the photographs were obtained.”  People v. Barber, supra.  The judge therefore dismissed the charge of unlawfully disseminating an unlawful surveillance image as “facially insufficient.”  People v. Barber, supra. 

He then took up the charge of aggravated harassment in violation of Aggravated Harassment in the Second Degree, in violation of [New York] Penal Law § 240.30(1)(a).  People v. Barber, supra.  The judge explained that someone is guilty of this offense

`when, with intent to harass, annoy, threaten or alarm another person, he . . . communicates with a person, anonymously or otherwise, by telephone, . . . or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.’ [New York] 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. . . .

In this case, the Information contains no factual allegation supporting the inference that [Barber] 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 [he] had posted them on his Twitter account and saw that he had emailed them to her employer and sister.

People v. Barber, supra. 

The judge therefore dismissed the aggravated harassment charge because Barber

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 [his] behest.

People v. Barber, supra. 

Finally, the judge took up the remaining charge:  public display of offensive sexual material in violation of New York Penal Law § 245.11(a).  People v. Barber, supra.  

Section 245.11(a) states that someone 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. . . viewing screen, moving picture screen, marquee or similar place, in such manner that the display is easily visible from or in any. . . place accessible to members of the public. . .; 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. . . .

People v. Barber, supra. 

The judge found the Information in this case was facially insufficient to plead “two elements” of this offense.  People v. Barber, supra. 

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 -- 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 obvious that article 245 was aimed at protecting the public -- 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 N.Y.2d 626 (New York Court of Appeals 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 (Criminal Court, Bronx County 1972), that the statute was intended to cover.

People v. Barber, supra. 

The judge also found that the information failed 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 [New York Penal Law] § 245.11. . . . [I]t 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’ 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 (Justice Court, Townof 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.’  People v. Oshry, supra.

By contrast, People v. Lou Bern Broadway, Inc., 68 Misc.2d 112 (Criminal Court, City of New York 1971), . . .  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 . . . do not fall within the proscription of the statute.’ People v. Lou Bern Broadway, Inc., supra.  Here, as in Lou Bern, the allegation of a depiction of nudity, by itself, does not violate § 245.11.’

People v. Barber, supra (emphasis in the original).  

The judge held that because the Information “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” it was “facially insufficient.”  People v. Barber, supra.  He therefore dismissed all the charges, noting that “[Barber’s] conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged.”  People v. Barber, supra.