188 Misc. 2d 588 | New York County Courts | 2001
OPINION OF THE COURT
The above-named defendant has been charged by a Grand Jury of this county with 19 counts of one form or another of
Defendant moves, inter alia, for in camera inspection of the Grand Jury minutes, for disclosure of the minutes and of the prosecution’s charge, and for dismissal or reduction of the indictment or the counts thereof. In particular, defense counsel questions the adequacy of the People’s charge concerning sexual performance, and questions whether there was any evidence in support of what he assumes was accomplice testimony. The prosecution has not opposed inspection of the Grand Jury minutes, and this branch of the motion is therefore granted. The Court has read the minutes, and now turns to the remaining branches of defendant’s motion.
The Court’s review of the transcript discloses no novel points of law or other reason making release of the minutes “necessary to assist the court in making its determination on the motion” (CPL 210.30 [3]); defendant’s request for such disclosure is therefore denied.
The prosecutor presenting the case to the Grand Jury commendably organized and identified the charges so that the Grand Jury could vote on each of the three charges (use, promoting and possessing a child’s sexual performance) as to each of five individual photographs (exhibits 5 through 9) and negatives (exhibits 11 through 15). All the photographs are of the defendant’s own six-year-old daughter alone (with one exception), are grainy, out of focus, and contain no unusual clothing, props or stage dressing; according to the defendant’s statement (exhibit 4), they were impromptu and initiated in fun by the girl herself. One photo (exhibit 8) includes the defendant’s hand. One photo (exhibit 9) depicts the girl’s bare
All the crimes charged in the first 15 counts include as an element “sexual conduct,” which is defined as:
“actual or simulated sexual intercourse, deviate sexual intercourse, sexual beastiality [sic], masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” (Penal Law § 263.00 [3].)
None of the photographs depict anything remotely resembling intercourse, bestiality, masturbation, or sado-masochistic abuse, actual or simulated. Thus, for any of these photographs to constitute legally sufficient evidence of any of the first 15 counts of this indictment, it must constitute a “lewd exhibition of the genitals.” Exhibit 7 is the only photograph in which genitals are visible, and in the absence of evidence of this element, every count based on exhibits 5, 6, 8 and 9 (to wit: counts 1, 2, 4, 5, 6, 7, 9, 10, 11, 12, 14 and 15) must be dismissed.
Whether or not there was sufficient evidence presented to support the Grand Jury’s vote to indict the defendant on counts 3, 8 and 13 (the counts based on exhibits 7 and 13 [13 is the negative of exhibit 7]) depends on the legal sufficiency of evidence that that photo constitutes an “exhibition” of genitals, as opposed to merely showing genitals, and more importantly, whether there was proof that such display was a “lewd exhibition,” a required element of these charges. Because a Grand Jury’s conclusion that a given photograph is a lewd exhibition is all that stands between indictment for a felony and a harmless family activity, it is vital that a Grand Jury be properly charged as to the legal meaning of this element. Because these terms are commonly used, yet not necessarily with the same meaning as required in a criminal statute, the jury has to be instructed as to the heightened significance of those words when they constitute an element of a crime. Finally, because the word “lewd” is so vulnerable to individual subjective interpretation, the jurors (not to mention the defendant) are entitled to an objective, preferably statutory or common-law, definition.
The Legislature was well aware of the history of obscenity and the now familiar United States Supreme Court conclusion concerning community standards, but charges involving obscenity appear in a different article of the Penal Law (art 235), and the focus of the two articles is quite different: the obscenity statutes deal with protection of the public and the ef
The People gave the Grand Jury no instruction either as to the definition of exhibition or lewd, thereby leaving the jurors without any guidance as to how to determine if the defendant’s conduct was criminal or not. The mere fact that there is no statutory definition for a term which is crucial to determining whether a defendant’s actions are criminal (the case as to both “lewd” and “exhibition”) does not relieve the People of their
The fact that the Grand Jury needed this guidance is apparent from the fact that it erroneously indicted this defendant on 12 other counts involving lewd exhibition of the genitals when (as to those counts) there was no display of genitals at all— exhibited, lewd or otherwise.
Count number 16 of the indictment charges the defendant with sexual abuse in the first degree. The instructions given to
The final three counts of the indictment allege endangering the welfare of a child in violation of Penal Law § 260.10 (1). For an indictment to surpass the statutory threshold (CPL 190.65), the prosecution is obliged to produce a prima facie showing that the defendant’s taking these pictures of her daughter was “likely to be injurious to the physical, mental or moral welfare,” of her daughter (count 18) and the other two children present (counts 17 and 19) and that she knowingly did so nevertheless. While no particular purpose or artistic value appears in these five photos, or in the defendant’s behavior with her children, the issue here is whether or not this incident was likely to be injurious to the children and known by the defendant to be so. Again, there is no evidence that this mother’s taking several pictures of her daughter, even naked, and even in the presence of the girl’s seven-year-old sister and five-year-old brother, is likely to be harmful to her or to them; neither was there any evidence from which the Grand Jury could have inferred that it was likely to be injurious to the children, nor any basis for its conclusion that the defendant knew that it was. Secondly, in view of the fact that the grand jurors had by then concluded that each of the five
For the foregoing reasons, and due deliberation having been had, the Court finds that due to the absence of instruction as to two crucial elements of the counts of this indictment, the integrity of this Grand Jury proceeding was impaired to the prejudice of the defendant, and that the indictment herein must be dismissed (CPL 210.35 [5]; see also, People v Ramos, 223 AD2d 495, lv denied 87 NY2d 1024; People v Doe, 178 Misc 2d 908).
It is hereby ordered that the defendant’s motion to dismiss the indictment is granted, and it is further ordered that the other branches of defendant’s motion are deemed moot, and it is further ordered that in accordance with CPL 210.45 (8), the current securing order is hereby terminated. If bail has been posted, it is exonerated; if the defendant is in custody, she is to be discharged forthwith.
. As well as 13, its negative.
. Other courts have recognized the need to define the term when it appears in similar statutes; see, e.g., United States v Dost, 636 F Supp 828, affd sub nom. United States v Wiegand, 812 F2d 1239, cert denied 484 US 856.
. While People v Batashure (75 NY2d 306) involves the role of the Grand Jury versus the District Attorney in determining sufficiency of evidence, as between the Grand Jury and the court, see People v Norman, 85 NY2d 609.