109 Misc. 2d 738 | N.Y. Sup. Ct. | 1981
OPINION OF THE COURT
The defendant was charged with attempted use of a child in a sexual performance (Penal Law, §§ 110, 263.05) and unrelated crimes. He pleaded guilty to that charge to cover the indictment. Subsequent to his plea, but prior to sentence, the Court of Appeals decided People v Ferber (52 NY2d 674) declaring a related provision of the statute (L 1977, ch 910) unconstitutionally overbroad under the First and Fourteenth Amendments. (Penal Law, § 263.15.) The defendant now moves to vacate his plea of guilty on the ground that section 263.05 of the Penal Law is likewise unconstitutional under the reasoning of the Ferber opinion. (CPL 330.30, subd 1.)
THE FACTS
The indictment alleged that the defendant attempted to employ a 15-year-old male to pose for sexually explicit photographs with young girls and other young males. A review of the Grand Jury minutes discloses that on October 26,1980 the defendant approached two young runaways in Pennsylvania Station. One of the young men was 16, the
THE ISSUES
Since the defendant admitted during allocution on the plea, that he knowingly induced and attempted to employ a child under 16 years of age to engage in a sexual performance as defined in the statute (Penal Law, §263.00, subds 1, 3), there is no issue as to the sufficiency of the evidence to sustain the conviction.
The first issue to be resolved is whether the defendant may constitutionally be subject to prosecution for the con
To the extent that the defendant’s proposed production of a film featuring these minors evokes First Amendment concerns, this potential communicative interest is clearly outweighed by the State’s interest in protecting the juveniles involved from psychological or physical harm. The United States Supreme Court has recognized that even forms of expression traditionally entitled to constitutional protection from governmental interference under the First Amendment may be limited to the extent necessary
The court further finds that the defendant is not a proper party to raise the constitutionality of section 263.05 of the Penal Law as applied to third persons. While the court is aware that this statute, like section 263.15 of the Penal Law might be “susceptible of application to protected expression” and therefore may potentially be overbroad (see Gooding v Wilson, 405 US 518, 522; Zwickler v Koota, 389 US 241, 250) the court does not foresee any real and substantial danger that the “statute’s very existence may cause otherg, hot before the court to refrain from constitutionally protected speech or expression” (Broadrick v Oklahoma, 413 US 601, 612). Rather, the court is of the opinion that section 263.05 of the Penal Law unlike section 263.15 of the Penal Law is directed primarily at conduct of a sort, which as previously noted, is “within the scope of otherwise valid criminal laws that reflect legitimate state interests” and that whatever derivative effect the statute may have upon protected expression is not so substantial
The statute at issue here, unlike the statute in People v Ferber (52 NY2d 674, supra) is, as previously noted, directed not at the content of films or other visual expressions depicting children in a nonobscene manner, but is directed at the conduct of those who employ children for sexual performances. The act of employment or inducement is not itself a form of expressive or communicative conduct within the meaning of “speech” under the First Amendment. To the extent that the prohibition of such conduct may have an incidental effect on the free exercise of visual expression, as for example by requiring the producer of sexually explicit movies or plays to use older performers, such cases as do arise may be treated on a case-by-case analysis of their factual situations. (Broadrick v Oklahoma, 413 US 601, 615-616, supra; United States v Thirty-seven Photographs, 402 US 363, 375, n 3; Dombrowski v Pfister, 380 US 479, 491-492; Young v American Mini Theatres, 427 US 50, 60-61; People v Smith, 44 NY2d 613, 623, supra.)
It is conceivable, of course, that child performers under 16 might be adversely affected in the exercise of their freedom of expression by the operation of this statute, by virtue of being restricted in their New York State employment from performances involving sexual conduct as defined in subdivision 3 of section 263.00 of the Penal Law. However, it is not certain that children have a constitutional right, coextensive with that of adults, to engage in nonobscene sexual performances. (See Ginsberg v New York, 390 US 629, 635, n 4, 638, supra; Bookcase, Inc. v Broderick, 18 NY2d 71, 77-78, app dsmd sub nom. Bookcase, Inc. v Leary, 385 US 12; see, also, Pinkus v United States, 436 US 293, 297-298.) This defendant, in any event, is not a member of the class of child performers, nor does the record warrant a finding that this defendant is entitled to any representative standing, since there does not appear to be any ongoing agency relationship between the defendant and the child performers, nor does the defendant appear to have any personal, parental, or substantial economic relation to any child performer. (See H.L. v
Accordingly, the defendant’s motion to vacate his plea of guilty on grounds of the unconstitutionality of section 263.05 of the Penal Law is denied.