Opinion
No. 1501-1502.
September 18, 2007.
Order, Supreme Court, New York County (Renee A. White, J.), entered on or about July 12, 2005, which dismissed those counts of the indictment charging attempted dissemination of indecent materials to minors in the first degree, unanimously reversed, on the law, and the matter remanded for further proceedings, including consideration of the alternate argument for dismissal that was not ruled upon by the motion court. Appeal from order, same court and Justice, entered on or about October 18, 2005, which, upon reargument, adhered to the July 2005 order, unanimously dismissed as academic in light of the foregoing.
Robert M. Morgenthau, District Attorney, New York (Karen Schlossberg of counsel), for appellant.
Stillman, Friedman Shechtman, P.C., New York (Nathaniel Z. Marmur of counsel), for respondent.
Before: Andrias, J.P., Buckley, Catterson, Malone and Kavanagh, JJ.
The motion court dismissed the attempted dissemination counts on the ground that Penal Law § 235.22 covers only pictures, not words. However, in People v Kozlow, which involved this defendant's Westchester County conviction, the Court of Appeals held that a defendant may be convicted of attempted dissemination of indecent materials to minors in the first degree "even though his communications contained no nude or sexual images" ( 8 NY3d 554, 556), and it rejected defendant's argument "that Penal Law § 235.22 is void for vagueness if the word `depict' is interpreted to include textual descriptions" ( id. at 561).