| People v Holmes |
| 2012 NY Slip Op 08906 [101 AD3d 1632] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Marlek E. Holmes, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedDecember 5, 2011. The judgment convicted defendant, upon his plea of guilty, of failure toregister change of address, failure to personally verify his address, disseminating indecentmaterial to a minor in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of,inter alia, disseminating indecent material to minors in the first degree (Penal Law §235.22). Defendant contends that the indictment is jurisdictionally defective because it accuseshim of acts, i.e., sending sexually explicit text messages to a 16-year-old girl, that do notconstitute a crime. According to defendant, the act of sending telephone text messages does notinvolve the use of "any computer communication system allowing the input, output, examinationor transfer, of computer data or computer programs from one computer to another" as required byPenal Law § 235.22 (1).
As a preliminary matter, we agree with defendant that he was not required to preserve hiscontention for our review, nor is it waived as a result of his guilty plea, inasmuch as it concerns anonwaivable jurisdictional defect (see People v Iannone, 45 NY2d 589, 600-601 [1978];cf. People v Cox, 275 AD2d 924, 924-925 [2000], lv denied 95 NY2d962 [2000]; see also People v Case, 42 NY2d 98, 99 [1977]). We conclude, however,that defendant's contention lacks merit. "The common-law policy that a penal provision shouldbe strictly construed has been expressly abolished by the Legislature" (People v Teicher,52 NY2d 638, 647 [1981]; see Penal Law § 5.00). Instead, "penal statutes are to beinterpreted 'according to the fair import of their terms to promote justice and effect the objects ofthe law' . . . and are not to be given hypertechnical or strained interpretations"(Teicher, 52 NY2d at 647, quoting § 5.00; see People v Ditta, 52 NY2d657, 660 [1981]). The term computer is broadly defined in the Penal Law as "a device or groupof devices which, by manipulation of electronic, magnetic, optical or electrochemical impulses,pursuant to a computer program, can automatically perform arithmetic, logical, storage orretrieval operations with or on computer data, and includes any connected or directly relateddevice, equipment or facility which enables such computer to store, retrieve or communicate toor from a person, another computer or [*2]another device theresults of computer operations, computer programs or computer data" (§ 156.00 [1])."Computer data" is defined as "a representation of information, knowledge, facts, concepts orinstructions which are being processed, or have been processed in a computer and may be in anyform, including magnetic storage media, punch cards, or stored internally in the memory of thecomputer" (§ 156.00 [3]).
Although the issue whether a telephone is included in the statutory definition of "computer"has not been addressed by an appellate court in this state, in People v Johnson (148 Misc2d 103 [1990]), the court concluded that it is. The court reasoned that "[t]he instrumentality atissue here is not merely a telephone . . . , but rather a telephone inextricably linkedto a sophisticated computerized communication system . . . This telephone system,of which the telephone itself is the essential first component, does comport with the statutorydefinition of 'computer' that is, the system is a 'group of devices which, by manipulation ofelectronic . . . impulses . . . can automatically perform. . . logical, storage or retrieval operations with or on computer data'. . . The system also meets the definitional inclusion of 'any connected or directlyrelated device, equipment or facility which enables such computer to . . .communicate to or from a person' " (id. at 106-107).
In light of the foregoing and the fact that the Court of Appeals has approved of constructionsof Penal Law § 235.22 that "criminalize the use of any 'sexually explicitcommunications' intended to lure children into sexual contact" (People v Kozlow, 8 NY3d 554,561 [2007], quoting People v Foley, 94 NY2d 668, 674 [2000], cert denied 531US 875 [2000]), we conclude that sending telephone text messages falls within the conductproscribed by section 235.22. Thus, the indictment is not jurisdictionally defective.Present—Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.