Court: Porn not limited to images
April 26, 2007
By YANCEY ROY
ALBANY -- Reversing earlier rulings, the state's highest court Thursday ruled prosecutors can charge someone with disseminating indecent materials to minors over the Internet even when the materials are limited to words, not pictures.
In a 5-2 decision, the Court of Appeals said that the crucial word at the heart of the case, "depict,'' does not only mean images. A lower court had dismissed the charges against Jeffrey Kozlow, who was arrested as part of a Westchester County sting operation in 2004, because his e-mails contained graphic language but no images.
The high court said, in effect, the lower court was being too technical.
"Nowhere in the history of the statute do we find evidence of such narrow intent,'' Judge Eugene Pigott Jr. wrote for the majority. "On the contrary, it is clear that the legislators intended to criminalize the activities of adults who engage minors in sexually infused communication.
"Moreover, the Legislature was surely aware that a sexually explicit text may be used as a means of seduction just as effectively as a sexual image,'' Pigott continued. "They could not have thought that this process was limited to the transmission of pornographic images. Indeed, the logic of communication dictates just the opposite -- that images alone would not enable the sender to entice a minor to a meeting.''
Kozlow's win at the mid-level had prompted the Legislature earlier this year to pass a bill to make clear that "words'' as well as images fall under the state's indecency law. Gov. Eliot Spitzer signed the measure last month. That law could not, however, apply retroactively to Kozlow?s case.
According to court documents, Kozlow was a 41-year-old Manhattan attorney snared in an Internet sting in 2004 run by the Westchester County district attorney's office. For several months, Kozlow sent e-mails to what he thought was a 14-year-old boy, graphically describing sexual acts. At one point, he allegedly sent a photograph of himself fully clothed. Investigators arranged to meet Kozlow at a newsstand in Grand Central Terminal, where he was arrested.
Westchester County Court convicted Kozlow of five counts of attempted dissemination of indecent materials to a minor. He was sentenced to five years probation.
But the Appellate Division, a mid-level court, reversed the decision. The court said that prosecutors failed to establish that Kozlow had "depict(ed)'' sexual material since the messages "contained no visual sexual images.''
Two judges on the Court of Appeals agreed that prosecutors should have been held to that strict standard. If lawmakers wanted words to be covered by the law, they should have said so, specifically, said Judges Robert Smith and Theodore Jones.
"The primary meaning of `depict' in every dictionary I have consulted, is to represent by a picture,'' Smith wrote. ``As all these dictionaries say, `depict' can also be used as a synonym for `describe,' but if the Legislature intended to reach both pictures and words the obvious way to do so was to say `depicts or describes.'''
Further, in two previous cases, lawyers for the state argued that the statute referred only to images, not words, Smith said.
Kozlow?s case now goes back to the mid-level Appellate Division. It can weigh the facts of the case -- that is, whether there is enough evidence to convict him -- but not the validity of the charges.
http://www.uticaod.com/apps/pbcs.dll.../NEWS/70426011
April 26, 2007
By YANCEY ROY
ALBANY -- Reversing earlier rulings, the state's highest court Thursday ruled prosecutors can charge someone with disseminating indecent materials to minors over the Internet even when the materials are limited to words, not pictures.
In a 5-2 decision, the Court of Appeals said that the crucial word at the heart of the case, "depict,'' does not only mean images. A lower court had dismissed the charges against Jeffrey Kozlow, who was arrested as part of a Westchester County sting operation in 2004, because his e-mails contained graphic language but no images.
The high court said, in effect, the lower court was being too technical.
"Nowhere in the history of the statute do we find evidence of such narrow intent,'' Judge Eugene Pigott Jr. wrote for the majority. "On the contrary, it is clear that the legislators intended to criminalize the activities of adults who engage minors in sexually infused communication.
"Moreover, the Legislature was surely aware that a sexually explicit text may be used as a means of seduction just as effectively as a sexual image,'' Pigott continued. "They could not have thought that this process was limited to the transmission of pornographic images. Indeed, the logic of communication dictates just the opposite -- that images alone would not enable the sender to entice a minor to a meeting.''
Kozlow's win at the mid-level had prompted the Legislature earlier this year to pass a bill to make clear that "words'' as well as images fall under the state's indecency law. Gov. Eliot Spitzer signed the measure last month. That law could not, however, apply retroactively to Kozlow?s case.
According to court documents, Kozlow was a 41-year-old Manhattan attorney snared in an Internet sting in 2004 run by the Westchester County district attorney's office. For several months, Kozlow sent e-mails to what he thought was a 14-year-old boy, graphically describing sexual acts. At one point, he allegedly sent a photograph of himself fully clothed. Investigators arranged to meet Kozlow at a newsstand in Grand Central Terminal, where he was arrested.
Westchester County Court convicted Kozlow of five counts of attempted dissemination of indecent materials to a minor. He was sentenced to five years probation.
But the Appellate Division, a mid-level court, reversed the decision. The court said that prosecutors failed to establish that Kozlow had "depict(ed)'' sexual material since the messages "contained no visual sexual images.''
Two judges on the Court of Appeals agreed that prosecutors should have been held to that strict standard. If lawmakers wanted words to be covered by the law, they should have said so, specifically, said Judges Robert Smith and Theodore Jones.
"The primary meaning of `depict' in every dictionary I have consulted, is to represent by a picture,'' Smith wrote. ``As all these dictionaries say, `depict' can also be used as a synonym for `describe,' but if the Legislature intended to reach both pictures and words the obvious way to do so was to say `depicts or describes.'''
Further, in two previous cases, lawyers for the state argued that the statute referred only to images, not words, Smith said.
Kozlow?s case now goes back to the mid-level Appellate Division. It can weigh the facts of the case -- that is, whether there is enough evidence to convict him -- but not the validity of the charges.
http://www.uticaod.com/apps/pbcs.dll.../NEWS/70426011
Was about to post almost the same thing 
- Relates to the Penguin Books/Lady Chatterley's Lover case...
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