People v. Kozlow, 8 N.Y.3d 554 (2007)

A defendant can be convicted of attempted dissemination of indecent material to minors, even if the communication contains no nude or sexual images, because the term “depict” in the statute includes textual descriptions.

Summary

Jeffrey Kozlow was convicted of attempting to disseminate indecent material to a minor after engaging in sexually explicit online conversations with an undercover investigator posing as a 14-year-old. The communications involved detailed descriptions of sexual acts but no images. The Court of Appeals reversed the Appellate Division’s decision, holding that the term “depict” in Penal Law § 235.22 includes textual descriptions of nudity or sexual conduct, not just visual representations. The Court emphasized the legislature’s intent to criminalize using communication to lure minors, irrespective of whether images were involved, and rejected the argument that the statute was unconstitutionally vague.

Facts

Kozlow initiated contact with an undercover investigator posing as a 14-year-old in an internet chat room. He exchanged messages with the investigator, revealing he was “into younger guys.” The two exchanged fully clothed photos. Kozlow then began sending sexually explicit messages describing sexual acts and potential encounters, but never sent any pornographic images or pictorial representations of nudity or sex. They planned to meet, but Kozlow was arrested before the meeting occurred.

Procedural History

Kozlow was charged and convicted in County Court on five counts of attempted dissemination of indecent material to minors. The Appellate Division reversed the conviction, holding that the communications did not “depict” sexual conduct because they lacked visual images. The Court of Appeals granted leave to appeal and reversed the Appellate Division’s decision.

Issue(s)

1. Whether the term “depict” in Penal Law § 235.22(1) is limited to visual images, or whether it encompasses textual descriptions of nudity, sexual conduct, or sado-masochistic abuse.
2. Whether Penal Law § 235.22 is unconstitutionally vague if “depict” includes textual descriptions.

Holding

1. Yes, because the word “depict” has a standard meaning to “represent or portray in words,” and legislative intent shows the statute was meant to capture adults who engage minors in “sexually infused communication” regardless of whether images are sent.
2. No, because the statute “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices”.

Court’s Reasoning

The Court of Appeals reasoned that the ordinary meaning of “depict” includes representing or portraying something in words, in addition to representing it in a picture. The Court examined the legislative intent behind Penal Law § 235.22, noting that legislators were concerned with the use of computers to lure minors into sexual encounters and sought to criminalize the activities of adults who engage minors in “sexually infused communication.” The Court found no evidence that the legislature intended to limit the statute’s scope to cases involving visual images. The Court stated, “Nowhere in the history of the statute do we find evidence of such a narrow intent. On the contrary, it is clear that the legislators intended to criminalize the activities of adults who engage minors in “sexually infused communication”. The Court further observed that a sexually explicit text can be as effective as a sexual image in seduction. The Court also rejected the argument that the statute was unconstitutionally vague. The Court relied on prior holdings that the statute provided sufficient warning as to the proscribed conduct when measured by common understanding and practices. The court referenced People v Shack, stating “A legislative decision to use language that is imprecise and open-ended “does not render a statute fatally vague if that language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices’ ”.