People v. Kozlow

Jul 25, 2006
Versions:31 A.D.3d 788
821 N.Y.S.2d 212

Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the County Court, Westchester County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The evidence was legally insufficient to support the defendant‘s convictions of attempted disseminating indecent material to minors in the first degree (see Penal Law §§ 110.00, 235.22). The People failed to establish that the defendant‘s Internet communications with an undercover police officer whom he believed to be a minor “depict[ed]” sexual conduct within the meaning of Penal Law § 235.22 (1), since they contained no visual, “sexual images” (People v Foley, 94 NY2d 668, 681 [2000], cert denied 531 US 875 [2000]; see Penal Law § 235.21 [1], [2]). Accordingly, the judgment must be reversed and the indictment dismissed.

In light of this determination, it is unnecessary to address the parties’ remaining contentions. Crane, J.P., Krausman, Rivera and Dillon, JJ., concur.