Opinion
20043-2019
09-16-2019
The PEOPLE of the State of New York, Plaintiff, v. E.R., Defendant.
Attorney for Defendant: Terry Brostowin, Esq., For the People on the motion: ADA John Carfagno
Attorney for Defendant: Terry Brostowin, Esq., For the People on the motion: ADA John Carfagno
Defendant is charged with two counts of unlawful disclosure of an intimate image NYC Admin. Code § 10-177(b)(1). The defendant moves, pursuant to CPL § 170.30(1)(a), CPL § 170.35(1)(a) and CPL § 100.40, to dismiss this count arguing that the charge is facially insufficient.
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the offenses charged ( C.P.L. §§§ 100.15[3], 100.40[1](b), 70.10 ). These facts must be supported by non-hearsay allegations that, if true, establish every element of the offense ( C.P.L. § 100.40 [1] (c) ). However, conclusory allegations are insufficient, and where the factual portion fails to establish every element of the offense charged, a motion to dismiss for facial insufficiency must be granted ( People v. Dumas , 68 NY2d 729 [1986] ; People v. Alejandro , 70 NY2d 133 [1987].
When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People (People v. Bender , 14 Misc 3d 1223A [Crim Ct, New York County 2007]; citing People v. Gonzalez , 184 Misc 2d 262 [App. Term 1st Dept. 2000] ). Also, the court is not required to ignore common sense or the significance of the conduct alleged. Id. Certain facts may be inferred circumstantially from the allegations in the instrument, provided "common human experience" would permit a reasonable person to accept such inference ( People v. Reyes , 126 Misc 2d 399, 400 [Crim Ct, New York County 1984] ; citing People v. Borrero , 26 NY2d 430 [1970] ).
Here, the People filed and served a Domestic Incident Report that was deemed an information on April 5, 2019. The factual allegations contained in the criminal complaint provide, in pertinent part, as follows: that on or about March 26, 2019 at 8:07 p.m., the defendant sent two intimate photos of the complainant to her boyfriend, A.R., on Facebook. It is alleged that the photos showed the complainant's breasts and that her face was clearly visible. The complainant informed the police officer that she knows that it was defendant that sent the two photos to her boyfriend because the messages came from defendant's Facebook, which she knows to his Facebook account. The complainant also informed the police officer that she did not give the defendant permission or authority to possess, view, or share the above-mentioned photos and that the defendant's actions caused her substantial emotional harm. On March 27, 2019, the complaining witness signed the domestic incident report, acknowledging that false statements are punishable under the law.
Unlawful Disclosure of an Intimate Image— N.Y.C. Admin. Code § 10-180
The complaint refers to NYC Admin. Code § 10-177, which was re-codified as of March 1, 2019 to PL § 10-180.
N.Y.C. Admin. Code § 10-180(b)(1) provides that it "is unlawful for a covered recipient to disclose an intimate image, without the depicted individual's consent, with the intent to cause economic, physical or substantial emotional harm to such depicted individual, where such depicted individual is or would be identifiable to another individual either from the intimate image or from the circumstances under which such image is disclosed." A "covered recipient" is defined as "an individual who gains possession of, or access to, an intimate image from a depicted individual, including through the recording of an intimate image." N.Y.C. Admin. Code § 10-180(a).
"Intimate image" is defined as:
a photograph, film, videotape, recording or any other reproduction of an image of a depicted individual that has been disclosed or threatened to be disclosed in a manner in which, or to a person or audience to whom, the depicted individual intended it would not be disclosed, at the time at which the covered recipient gained possession of, or access to, the intimate image. An intimate image does not include any image taken in a public place as defined in section 240.00 of the penal law, except if, at the time the image was recorded, an individual in the depicted individual's position would reasonably have believed that no one other than the covered recipient could view the applicable intimate body parts or sexual activity while such body parts were exposed or such activity was occurring. Id.
Defendant argues that the complaint does not sufficiently set forth the facts to support the charge of N.Y.C. Admin. Code § 10-177, which is now recodified as "security measures at certain eating or drinking establishments." Defendant notes that subsection § 10-177(b)(1) of the statute refers to regulation of video surveillance, and argues that there is no nexus between the narrative section of the accusatory instrument that allege facts of an evidentiary charge supporting a charge under N.Y.C. Admin. Code § 10-177(b)(1). In response, the People, apparently ignoring the recodification of the statute, argue that there is no requirement that the alleged images be the result of digital surveillance, citing N.Y.C. Admin. Code § 10-177(3), which as discussed above has been re-codified to N.Y.C. Admin. Code § 10-180. The People further argue that the factual allegations in the complaint state that the complainant observed the defendant send two photographs that showed her naked breasts to the complainant's boyfriend and that her face is visible, satisfying the requirements under the statute.
The People have failed to correctly identify the statutory charge against defendant, something that should have readily been apparent to the People given defendant's motion is based on the version of N.Y.C. Admin. Code § 10-177 that was in effect on the date the complaint was filed. This alone warrants dismissal.
The complaint in this matter was filed on April 5, 2019 and N.Y.C. Admin. Code § 10-177 was re-codified to N.Y.C. Admin. Code § 10-180 on March 1, 2019.
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However, in addition, the complaint fails to plead that defendant is a "covered recipient," under the statute. People v. Ahmed , 2019 WL 2426537, 2019 NY Slip Op. 29170 (Crim. Ct., NY Cty 2019) ; N.Y.C. Admin. Code § 10-180 (a). Prior to finalizing the statutory language, the New York City Council revised the initial bill from applying to "any person" to only "covered recipients" because "any person" was too broad and "could potentially hold an individual liable or criminally responsible for sharing an image that he or she was unaware of its source." People v. Ahmed , 2019 WL 2426537 *3, citing New York City Council, Committee on Public Safety, Report of the Governmental Affairs Division on Proposed Int. No. 1267-A, November 1, 2017 at p. 19. In this instance, the complaint is silent as to how the two photos came into defendant's possession or who took them.
When viewing the accusatory instrument in a light favorable to the People, as required at this stage of the proceedings, (see , People v. Bender , 14 Misc 3d 1223A [Crim Ct, New York County 2007]; citing People v. Gonzalez , 184 Misc 2d 262 [App. Term 1st Dept. 2000] ), the court finds that the information does not meet the minimum requirements to sustain the charges of unlawful disclosure of an intimate image under N.Y.C. Admin. Code § 10-180 (formerly § 10-177 ) and must be dismissed.
Accordingly, count one of the information, N.Y.C. Admin. Code § 10-180 (formerly § 10-177 ) is dismissed for facial insufficiency. However, this is a case where there might be additional facts available to the People that, if properly pled, could cure the insufficiency. Thus, while the Court is dismissing the information, it does so with leave to the People to file a superseding information subject to the relevant provisions of CPL § 30.30. Sealing is stayed for 30 days.
Accordingly, the defendant's motion to dismiss pursuant to CPL §§ 100.40, 170.35 and 170.30 is granted in its entirety.
The foregoing is the decision and order of the court.