| People v Kozlow |
| 2007 NY Slip Op 10551 [46 AD3d 913] |
| December 26, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jeffrey Kozlow, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Robert K. Sauer and Anthony J.Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Alessandro, J.), rendered July 27, 2005, convicting him of attempted disseminating indecentmaterial to minors in the first degree (five counts), after a nonjury trial, and imposing sentence.By decision and order of this Court dated July 25, 2006, the judgment was reversed (see People v Kozlow, 31 AD3d788 [2006]). By opinion of the Court of Appeals dated April 26, 2007, the decision andorder of this Court was reversed and the matter was remitted to this Court for further proceedings(see People v Kozlow, 8 NY3d554 [2007]).
Ordered that the judgment is affirmed.
The 42-year-old defendant had multiple communications via e-mail with "JohnInYonkers,"an individual that the defendant believed to be a 14-year-old boy. The two initially met in anInternet chat room. In fact, "JohnInYonkers" was an undercover investigator employed by theHigh Technology Crimes Bureau of the Westchester County District Attorney's Office, whichinvestigates crimes against children online.
The defendant described in various e-mail communications the sexual acts he would performupon "JohnInYonkers." The communications included those of April 14, April 23, May 13, andMay 24, 2004. On April 7, 2004 the defendant, presumably the older of the two Internet [*2]correspondents, offered to teach "JohnInYonkers," presumably theyounger of the two, about specific sexual behavior. During the communication of May 13, 2004the defendant inquired whether "JohnInYonkers" was a police officer, and the following daytransmitted to "JohnInYonkers" a train schedule so that the two could meet in New York City.While the defendant stated on various occasions that his initial meeting with "JohnInYonkers"would be limited to conversation, the defendant also indicated at other times that, after the initialmeeting, he and "JohnInYonkers" would "take it from there," get a room, and thereafter see oneanother as much as "JohnInYonkers" wanted.
Ultimately, on June 28, 2004 the defendant was arrested after walking to the pre-arrangedlocation at Grand Central Terminal in Manhattan at the approximate time that "JohnInYonkers"was scheduled to arrive for a first meeting.
Viewing the evidence in the light most favorable to the People, as we must (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt of each count of attempted disseminating indecentmaterial to minors in the first degree. The defendant's e-mails knowingly communicated sexualdepictions, by which he importuned, invited, or induced sexual contact with someone that hebelieved to be a minor (see Penal Law § 235.22).
The defendant maintains that the evidence shows that he merely intended to engage in anonline fantasy, and not to lure a minor into sexual contact. However, given the defendant's onlinedescriptions of the physical sexual contact he would perform with "JohnInYonkers," histransmittal of a train schedule, his effort to meet "JohnInYonkers" at a designated date and timeat Grand Central Terminal, and other evidence contained in the electronic communications, weare satisfied that the verdict was not against the weight of the evidence. The resolution of issuesof credibility is primarily a matter to be determined by the trier of fact, which saw and heard thewitnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]). Our dissenting colleague, in reviewing the weight of the evidence,overlooks the predatory seduction evidenced by the defendant's ongoing pattern of statementsand activities. The weight of the objective evidence is such that the trier of fact could resolveconflicting inferences against those of the defendant's arguments that are based upon self-servingassertions as to his subjective intent (see People v Rochester, 168 AD2d 519, 520[1990]).
Our dissenting colleague argues that the People impermissibly altered the theory of theprosecution during summation from importuning, inviting, or inducing sexual "contact," asalleged in the indictment, to sexual "conduct" for his benefit, which was not alleged in theindictment, and that the trial court, in overruling the defendant's objection on this ground, did notexpressly disavow a "conduct" theory upon finding the defendant guilty. However, a court ispresumed in a nonjury trial, as here, to have considered only competent evidence in reaching itsverdict (see People v Sims, 127 AD2d 805, 806 [1987]). Indeed, "[a] Judge is deemeduniquely capable of distinguishing those issues properly presented to him [or her] from thosenot" (People v Reyes, 116 AD2d 602, 603 [1986]) so as to warrant this presumption (see People v Marino, 21 AD3d430, 432 [2005], cert denied — US —, 126 S Ct 2930 [2006]) [nodanger that conviction rested upon prosecutor's fallacious summation]. This is not a case such asPeople v Haines (139 AD2d 591 [1988]), where the trial court not only overruled anobjection, but also made improper statements reinforcing the prosecutor's comments, nor is this acase where the verdict necessarily relies upon evidence unrelated to the specific allegations of theindictment, as in People v Rodriguez (164 AD2d 832 [1990]). To the contrary, the trialcourt in this [*3]instance expressly stated that it was familiar withand bound by the contents of the case file and would "make a decision based upon what ischarged in [sic] the evidence submitted in the trial" (emphasis added) (seePeople v Mitchell S., 151 Misc 2d 208, 212 [1991]). Since the trial court expressly bounditself to the indictment in the case file and to the evidence relating to the charges, any error inoverruling the defendant's objection is of no consequence.
The defendant's remaining contentions are without merit. Rivera, Krausman and Dillon, JJ.,concur.
Crane, J.P. (dissenting and voting to reverse the judgment of conviction, on the law and thefacts, and to dismiss the indictment): During summations in this bench trial, the prosecutor urgedthe trial court to convict the defendant on a theory that was not charged in the indictment. Whenthe defendant objected and clearly stated the ground for his objection, the court overruled theobjection, opaquely adding later that it was bound by the case file and would make a decisionbased on the evidence. Because the prosecutor's change in theory violated the defendant'sconstitutional right to be prosecuted by indictment voted by a grand jury (see NY Const,art I, § 6; People v Perez, 83 NY2d 269, 273 [1994]; People v Grega, 72NY2d 489, 495 [1988]), I vote to reverse his conviction, and, because any conviction on thetheory that was charged in the indictment was against the weight of the evidence, I vote todismiss the indictment.
Penal Law § 235.22 (disseminating indecent material to minors in the first degree)provides in pertinent part:
"A person is guilty of disseminating indecent material to minors in the first degree when:
1. knowing the character and content of the communication which, in whole or in part,depicts . . . sexual conduct . . . which is harmful to minors, heintentionally uses any computer . . . to . . . engage in suchcommunication with a person who is a minor; and
2. by means of such communication he importunes, invites or induces a minor to engage in. . . sexual contact with him, or to engage in . . .sexual conduct for his benefit."[emphasis added].
The indictment, which contained five counts of attempted disseminating indecent material tominors in the first degree, charged the defendant only under the theory that the defendant soughtto lure a person he believed to be a minor into sexual contact with him (hereinafter thephysical-contact theory). The bill of particulars was consistent with the indictment, limiting thecharges to the physical-contact theory. The indictment did not charge that the defendant sought tohave a person he believed to be a minor engage in sexual conduct for the defendant's benefit(hereinafter the defendant's-benefit theory). The defendant's-benefit theory could, ifcharged, have [*4]permitted a conviction without evidencethat the defendant sought to be in the minor's physical presence at any time. In other words, thedefendant's-benefit theory would have been satisfied with proof that the defendant importuned,invited, and induced the person he believed to be a minor to engage in sexual conduct, e.g.,masturbation, during their cyber chats, for the defendant's benefit, e.g., the defendant's arousal.
Nevertheless, perhaps concerned that the evidence on the physical-contact theory was tooweak to sustain a conviction—a concern that, as I discuss below, would have been wellfounded—the prosecutor urged the Judge in this bench trial to find the defendant guilty onthe uncharged defendant's-benefit theory. By overruling the defendant's precise objections to thisimpermissible alteration in the theory of the prosecution, and thereby allowing the People toconstructively amend the indictment, the County Court erred (see People v LaPetina, 34 AD3d 836, 839 [2006], affd 9NY3d 854 [2007]; People v Taplin,1 AD3d 1044, 1045 [2003]; People v Brown, 221 AD2d 353, 353-354 [1995];People v Chicas, 204 AD2d 476, 477 [1994]).
My colleagues in the majority do not state any contrary view as to the impropriety of thePeople's change in theory. Instead, they conclude that, because this was a bench trial, and in lightof the court's comment after summations, there is no danger that the fact-finder convicted thedefendant on an improper basis (but see People v Haines, 139 AD2d 591, 592 [1988];but cf. People v Giocastro, 210 AD2d 254 [1994] [reversal after bench trial on weight ofthe evidence]). I cannot share their confidence in that conclusion because it fails to take intoaccount the fact that the court overruled the defendant's objection to the improper amendmentand never disclaimed reliance on the defendant's-benefit theory. In short, because the Trial Judge,as the trier of fact, never abjured the uncharged defendant's-benefit theory, he may haveconvicted the defendant on an accusation for which the grand jury failed to indict him (seeCPL 200.70 [1]; People v Grega, 72 NY2d at 498; People v Kaminski, 58NY2d 886, 887 [1983]; cf. People v Martinez, 83 NY2d 26, 32-35 [1993], certdenied 511 US 1137 [1994]; People v Shealy, 51 NY2d 933, 934 [1980]; Peoplev Barnes, 50 NY2d 375, 379 n 3 [1980] [nonjury trial]; People v Rodriguez, 164AD2d 832, 833 [1990] [nonjury trial]; People v Haines, 139 AD2d 591, 592 [1988][nonjury trial]). Thus, I conclude that the convictions must be reversed.
The only remaining question is the appropriate corrective action (see CPL 470.10[3]). Because any conviction on the physical-contact theory was against the weight of theevidence, I conclude that the indictment must be dismissed, rather than that the case be remittedfor a new trial on that theory. I agree with the majority that a conviction on the physical-contacttheory was supported by legally sufficient evidence, if the Internet communications are read infragments, isolated from their full context. In determining whether the evidence was legallysufficient, we must, of course, consider whether "after viewing the evidence in the light mostfavorable to the prosecution, any rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt" (People v Contes, 60 NY2d 620, 621[1983], quoting Jackson v Virginia, 443 US 307, 319 [1979]; see People v Conway, 6 NY3d869, 872 [2006]; People vSanti, 3 NY3d 234, 246 [2004]; People v Rossey, 89 NY2d 970 [1997])."Ultimately, so long as the evidence at trial establishes 'any valid line of reasoning andpermissible inferences [that] could lead a rational person' to convict, then the conviction survivessufficiency review" (People v Santi, 3 NY3d at 246, quoting People v Williams,84 NY2d 925, 926 [1994]; see People v Bleakley, 69 NY2d 490, 495 [1987]). Thus, Iagree that, measured by that standard, the evidence of the defendant's guilt under thephysical-contact theory is legally sufficient.
Nevertheless, I conclude that any verdict of guilt at this trial on that theory—the only[*5]one we may consider because it was the only one with whichthe defendant was charged—was against the weight of the evidence (see CPL470.15 [3] [b]; [5]), particularly when the communications are considered in their entirety and infull context. As the Court of Appeals has so recently reaffirmed, the first question we must askon factual review of a verdict is whether an "acquittal would not have been unreasonable" (People v Danielson, 9 NY3d 342,348 [2007]; see People v Romero, 7NY3d 633, 643 [2006]; People v Bleakley, 69 NY2d at 495). Here, I conclude thatan acquittal would not have been unreasonable. Therefore, we must "weigh conflictingtestimony, review any rational inferences that may be drawn from the evidence and evaluate thestrength of such conclusions. Based on the weight of the credible evidence, [we must then]decide[ ] whether the [fact-finder] was justified in finding the defendant guilty beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 348 [2007]). Doing so in this case, I agree with the words ofJudge Frederick Crane, who, writing for the Court of Appeals in People v Crum (272 NY348, 350 [1936]), said, "[A] reading of this record causes me to hesitate. I am not convinced."First, it must be observed that, unlike in most weight-of-the-evidence reviews, credibility ofwitnesses plays little part in the analysis here; the evidence was almost entirely supplied by theactual written communications between the defendant and Investigator Pascal Storino, writing as"John in Yonkers 914," purportedly a 14-year-old boy. Thus, our factual review is composedalmost entirely of "review[ing the] rational inferences that may be drawn from the evidence andevaluat[ing] the strength of such conclusions" (People Danielson, 9 NY3d 342, 348[2007]). Upon my reading of the communications between the defendant and InvestigatorStorino, I conclude that it was the investigator who importuned, invited, and induced thedefendant to meet for the purpose of actual sexual contact and not the other way around. Thedefendant was reluctant, and he agreed to meet at all only after Investigator Storino persistedover a lengthy period of time. Consequently, I am persuaded that any verdict of guilt under thephysical-contact theory was against the weight of the evidence. Given this conclusion, a retrial onthis theory is forbidden by statute (see CPL 470.20 [5]; People v Romero, 7NY3d at 644 n 2). Instead, the only proper corrective action is to dismiss the indictment(see CPL 470.20 [5]).
By vivid contrast, the evidence that the defendant importuned, invited, or induced a personhe believed to be a 14-year-old boy to engage in sexual conduct for his benefit is overwhelming;it is all over this record, and, had the defendant been charged under this theory, convictions on allfive counts charged in the indictment would have been almost certain. The grand jury, however,did not charge the defendant under this theory—and the People never took the simple stepof obtaining a superseding indictment—and it is fundamental, therefore, that thefact-finder could not convict him of any count under this theory (see People v Haines,139 AD2d 591, 592 [1988]).
I respectfully dissent.