Defendant is charged with attempted disseminating indecent material to minors in the first degree (Counts 1,2, and 3); attempted endangering the welfare of a child (Counts 4, 5, 6 and 7); and attempted criminal sexual act in the third degree (Count 8.)

The Grand Jury found "no true bill" regarding a charge of attempted rape third degree.

A Stipulation in Lieu of Motions was completed and signed by the District Attorney of Nassau County by Assistant District Attorney Stephen V. Treglia, Esq. and Brian J. Davis, Esq., Attorney for the Defendant, on May 29, 2008 and "Approved and So Ordered" by this Court on that date. As part of that Stipulation, Defendant requested that the Court inspect the Grand Jury minutes, reserving his right to submit a memorandum of law regarding dismissal of Count 8 of the Indictment.

The Court has inspected the Grand Jury minutes, in camera, and finds that it is not necessary to release the minutes or any portion thereof to Defendant's attorney to assist the Court in determining their legal sufficiency. (CPL § 210.30 (3).)

Upon inspection of the Grand Jury minutes, this Court finds that the evidence before the Grand Jury was legally sufficient to support each of the crimes charged in the Indictment. (CPL § 210.30.) [*2]

Further, the Grand Jury proceeding was not defective. Proper legal advice and adequate legal instructions were given by the District Attorney. (CPL § § 190.25 (6), 210.35(5).)

As presented to the Grand Jury, these charges arise as the result of an undercover operation to identify individuals seeking to engage in conduct with persons under the age of seventeen. This operation was conducted via the internet wherein a detective, acting in the undercover capacity of a fifteen year old teenager, created a "My Space" web page so that anyone who wished to contact "her" could do so by leaving a typed message on the "My Space" web page or in an instant message online communication by contacting the "Yahoo" identity listed on the "My Space" web page.

In July 2007, Det. Frank Marino of the Rockville Centre Police Department was posing as the fifteen year old "Kristen" when he observed a typed message on "Kristen's" "My Space" web page from a person who called himself Mike, a digital photo of that person purporting to be Mike and the message, "I'm from o'side."^[FN1] Additional "My Space" communications followed.

On July 25, 2007 at approximately 6:55 p.m. Mike and "Kristen" had their first instant message communication wherein he stated he was twenty-two years old and "Kristen" told him "she" was fifteen. During this chat Mike asked "Kristen" if "she" would perform oral sex and asked "her" to hang out one night. That communication ended at approximately 7:17 p.m.

At 7:26 p.m., Mike again instant messaged "Kristen" during which communication he proposed having anal sex and asked if they could meet that night. "Kristen" replied, "not 2nite."

On July 27, 2007, Mike contacted "Kristen" and asked "her" to hang out that weekend and go to the beach. Mike again proposed engaging in oral/anal sexual conduct at the beach under the boardwalk. "Kristen" agreed to meet Mike the next night at a park by a soccer field and parking lot at Windsor Avenue and Merrick Road where "she" would be at the park bench.

On July 28, 2007, Mike drove to the aforementioned location. Det. Marino and Det. Michael Mehan were there observing the area. At approximately 10:30 p.m., Mike drove along Windsor Avenue past Det. Mehan who was standing on the sidewalk and then made a U-turn. As Mike re-passed Det. Mehan the detective jumped into his undercover vehicle and followed Mike around the corner where he was arrested. A blanket and notes of how to find the park were recovered from Mike's vehicle. No condoms were found.

"A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." (CPL § 110.00)

Simply, an attempt is an action undertaken with an intent to commit a crime.

Defendant contends that since the purported victim did not actually exist his going to the prearranged meeting could not "carry the project forward within dangerous proximity to the criminal end to be attained." (People v. Rizzo, 246 NY 334; People v. Bracey, 41 NY2d 296.)

In People v. Bracey, supra at 300 the Court established the framework for determining whether an attempt has been committed, to wit,

First, "it must be established that the defendant acted with a specific intent; that is, that he intended to commit a specific crime," and

Second, "itmust be proven that the defendant acted to carry out his intent. The law does not punish evil thoughts, nor does it generally consider mere preparation sufficiently dangerous to [*3]require legal intervention," and

Third, there must "be conduct which tends to effect the commission of ' the crime contemplated," and

Fourth, while the act performed "need not be the final one towards the completion of the offense'" "it must carry the project forward with dangerous proximity to the criminal end to be attained'" (citations omitted.)

In People v. Mormile, 28 AD3d 333, lv. den. 7 NY3d 759, the defendant was convicted of attempting to rape a 13 year old girl who was in fact a police officer posing as such on the internet. The Court held that committing the crime of attempted rape is not a legal impossibility even though the crime is one of strict liability regarding the age of the intended victim. The Court stated:

Moreover, as a matter of policy, [t]he premise of the Legislature's recognition of attempt culpability is that an actor's objectives and actions, though failing to achieve a desired goal, constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions' . . . Furthermore, since defendant mistakenly believed the victim to be under the age of 15, [i]t is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, "if such crime could have been committed had the attendant circumstances been as [defendant] believe them to be.'"

Given the prima facie evidence presented to the Grand Jury it is clear that they could find that Defendant conversed on line with the specific intent to engage in oral and anal sex with a fifteen year old female.

Additionally, the evidence shows that this twenty-two year old Defendant acted to carry out his intent and engaged in conduct tending to effect his having oral and anal sexual contact with a fifteen year old female by setting up a time, place and date to meet and then did so as scheduled. Moreover, he brought along a blanket, an instrumentality to effectuate going to the beach and engaging in sexual conduct with "Kristen."

Finally, the totality of the facts before the Grand Jury establishes that while the final act to be performed did not occur, Defendant's conduct was such that going to the meeting place with an instrumentality to effectuate having sex with "Kristen" brought the project forward in dangerous proximity to that criminal end. "Where the boundary line between preparation and attempt should be placed differs with different crimes" (People v. Mahboubian, 74 NY2d 174.) Once a defendant demonstrates his intent to commit a crime, appears at the scene of the crime and carries an instrumentality to effectuate that crime, an attempt lies even though the defendant has not actually engaged the intended victim directly in the intended crime (see, People v. Mormile, supra,; People v. Naradzay, 50 AD3d 1489; People v. Witkowski, 90 AD2d 723.)

The law does not require proof of an actual sexual overture to satisfy the overt act element of attempted sexual abuse. All that is required is that there must be overt action to effect the commission of the crime but which fails in its commission through timely interruption (see, Haims v. Senkowski, 114 Fed Appx 16 (C.A. 2 (NY)) cert. den. 126 SCT 76; People v. Rizzo, supra.)

Here, Defendant's actions had become "potentially and immediately dangerous . . . [and] had [*4]gone to the extent of placing it in [his] power to commit the offense unless interrupted'" (People v. Mahboubian, supra.) Had the events played out as Defendant perceived then he would have engaged in sexual conduct with "Kristen."

The Court finds that Defendant was properly charged with attempted criminal sexual act in the third degree as charged in Count 8.

To be noted is the fact that the Grand Jury "no true billed" a charge of attempted rape third degree. The evidence before the Grand Jury supports such finding since the on-line chat focused on oral and anal sexual conduct and not vaginal intercourse.

The Indictment conforms to the requirements of CPL § 200.50.

Accordingly, the application to dismiss or reduce the charges alleged in the Indictment is denied.

SO ORDERED.

E N T E R

Dated: July 16, 2008

JOSEPH C. CALABRESE, AJSC