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Jan 02 2013

When is a Cellphone a Computer? When it is Used for “Sexting” According to a NY Appeals Court

It used to be an old adage in NY criminal jurisprudence that penal statutes had to be “strictly construed.” The reasoning behind this made sense. If we were going to punish people and possibly put them behind bars, then we should put them on notice of the exact type of conduct that would put them in jeopardy of punishment. That way, folks could decide on a rational basis what level of risk that would be willing to take or whether their behavior constituted a crime at all. That all changed when the NYS Legislature enacted a new Penal Section 5.00 which states that penal statutes are to be interpreted “according to the fair import of their terms to promote justice and effect the objects of the law.” This leaves it wide open for courts to stretch words in statutes to fit a particular set of activities, should the court so choose.

And a court did so choose in People v. Holmes a decision issued today by the Fourth Department,the NY State Appellate Court that covers the upstate counties. The defendant had plead guilty to various crimes arising out of his sending sexually explicit text messages to a 16 year old girl (the age of consent in NY is 17). He appealed only that part of the charges that resulted in a felony conviction – a plea to Penal 235.22 – Disseminating Indecent Material to Minors in the Second Degree. His argument was that a basic integral component of the statute is that the indecent material be sent by “computer” to “computer.” Now the term “computer” is broadly defined in the Penal Law as “a device or group of devices which, by manipulation of electronic, magnetic, optical or electrochemical impulses, pursuant to a computer program, can automatically perform arithmetic, logical, storage or retrieval operations with or on computer data, and includes any connected or directly related device, equipment or facility which enables such computer to store, retrieve or communicate to or from a person, another computer or another device the results of computer operations, computer programs or computer data” (Penal Law §156.00 [1]). But even under this definition, it is a stretch to say a cell phone is a “computer” and in fact this is the first Appellate Court to rule that it does. Certainly, the average person reading this definition would not believe it applied to an ordinary cellphone and would instead think the statute was meant to protect kids in cyberspace.

But the court, citing Penal section 5.00, stated that for purposes of this statute it was close enough. In doing so , it relied on a case from Queens County in 1990, People v. Johnson that was focusing on whether a cell phone was a computer for purposes of the crime of unauthorized use of computer in violation of Penal Law section 156.05. There were (in my opinion) three errors in relying on this case): (1) In Johnson the court was also focusing on the use of a “computer service” as the case involved the sale of ATT calling card numbers that the buyer could type into the cellphone to bypass having to pay for calls;
(2) It’s one low level case from 1990 and no other court has relied upon it; it is of especially lower value in my opinion since the Judge who decided the case was Judge Heffernan of Queens County a notoriously pro-prosecutorial judge who was routinely vicious to defense lawyers. So certainly he would want to stretch any definition to make out a crime if he could do it;
(3)Unlike Johnson this defendant was charged with other crimes which clearly covered the conduct he engaged in. But because the alleged “computer data” was transmitted from one “computer” to another “computer” the charge went from a routine misdemeanor to a class D felony, punishable by up to 7 years in prison. If we are going to expose folks to 7 years in prison, the law should at least be clear about what actions will make that happen.

Look, not many people (myself included) will be crying any tears over someone who “sexts” minors, but it is important that courts not try to stretch the language in our Penal Code to fit higher crimes than the regular interpretation of the course of the defendant’s conduct would seem to warrant. Similarly creative expansion of legal terms could lead to crimes being crafted out of conduct that by a strict interpretation of the statute would appear legal.

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