Crimes - Unlawful Disclosure, Dissemination, or Publication of Intimate Image - May Reasonably be Identified - Facial Sufficiency of Misdemeanor Information

Crimes - Unlawful Disclosure, Dissemination, or Publication of Intimate Image - Intent to Cause Harm - Facial Sufficiency of Misdemeanor Information

Marc Gann for defendant.

Anne T. Donnelly, District Attorney, for the People.

Christopher H. (hereinafter defendant) is charged by way of information with unlawful dissemination of an intimate image in violation of Penal Law § 245.15, a class A misdemeanor. Defendant {**87 Misc 3d at 398}was arraigned before the Honorable Madeleine Petrara-Perrin on July 23, 2024. Thereafter, this case was adjourned on several occasions for discovery compliance and on October 11, 2024, the People filed a certificate of compliance and readiness for trial. On November 8, 2024, defendant requested the case be adjourned for review of the discovery materials and on December 3, 2024, both parties announced their readiness for trial. The case was subsequently adjourned until January 7, 2025, and at that time the court became aware of the instant motion; a motion schedule was then directed by the court and all papers were submitted for consideration on January 21, 2025.

Defendant now moves for an order dismissing the one count of Penal Law § 245.15 pursuant to Criminal Procedure Law § 170.30 (1) (f) on two grounds. First, defense counsel argues the images are not "identifiable" as required by statute rendering the charge facially insufficient. Second, the defense argues the charge fails to allege sufficient facts to establish the element of intent.

The People argue the subject intimate images are "reasonably identifiable to survive dismissal of this case," and "any further arguments for the image's identifiability should be a matter for the jury to decide." (People's aff at 19.) The People also maintain that nonhearsay allegations support every element of the offense charged. (Id. at 20.) For the reasons stated herein, the defendant's application to dismiss the sole count of Penal Law § 245.15 is denied in its entirety.

Penal Law § 245.15 (1) (a) provides, in pertinent part, the following:

"A person is guilty of unlawful dissemination or publication of an intimate image when:

"(a) with intent to cause harm to the emotional, financial or physical welfare of another person, they intentionally disseminate or publish a still or video image depicting such other person with one or more intimate parts exposed or engaging in sexual conduct with another person, including an image created or altered by digitization, where such person may reasonably be identified from the still or video image itself or from information displayed in connection with the still or video image; and

"(b) the actor knew or reasonably should have known that the person depicted did not consent to such dissemination or publication, including the{**87 Misc 3d at 399} dissemination or publication of an image taken with the consent of the person depicted when such person had a reasonable expectation that the image would remain private, regardless of whether the actor was present when such image was taken."

The accusatory instrument filed in this case alleges defendant committed the above charge arising from an incident that took place "on or about the 4th day of February 2024, at about 11:36 AM." The filing was accompanied by three supporting depositions and two screenshots of electronic communication sent or received by a mobile device. ("Attachment #1" appears to be a screenshot of a cell phone displaying typed messages and two still images which depict people engaging in sexual conduct and "Attachment #2" appears to be a screenshot of a cell phone displaying typed messages and one still image which depicts a computer screen.)

The supporting deposition of the complainant, Jessica H., states in pertinent part the following:

"On the 1st day of February 2024 at about 7:00 PM, I was at my home . . . when my husband, Christopher H confronted me about videos and photos he found of me being intimate with my boyfriend . . . Christopher found this flash drive from my dresser and downloaded it to his computer. He made numerous threats to me that he would send the videos and photos to my family and friends. On February 4th, 2024, I was told by my mother . . . and sister-in-law . . . that they received screenshots of videos of myself and my boyfriend engaging in sexual conduct. I can identify myself in the video. At no point did I give Christopher H . . . permission to disseminate those pictures & videos."

The supporting deposition of the second person states in pertinent part the following:

"On the 4th day of February 2024 at about 11:36 AM, I was at my home . . . when I received a text message from my sister-in-law . . . husband, Christopher H. The text message was two screenshots of two people engaging in sexual conduct and a text that said, 'in my fucking bed.' I noticed in the video that the background is consistent with Jessica's bedroom & her laptop. After this I notified Jessica H. what occurred. I have known Christopher{**87 Misc 3d at 400} H. for ten years & I know the number . . . to be his since meeting him."

The supporting deposition of the third person states in pertinent part the following:

"I received a text message from my daughter's husband, Christopher H. (516) XXX-XXXX that depicted two people have sexual intercourse. Christopher H. implied that it was my daughter in the video. Based on the message, I assumed it was my daughter, Jessica H. I know this phone number to belong to Christopher H. based on knowing him for 10 years and having the same phone number."[*2]

Attachment #1 displays the following:

Speaker 1: Is she home

Speaker 2: Around block

Speaker 1: Ok

The two still images which depict people engaging in sexual conduct

Speaker 3: In my fucking bed

Attachment #2 displays the following:

One still image which depicts a computer screen

Speaker 1: Was that for the kids too?

Speaker 2: Please tell me you didn't send that

Speaker 1: Not yet

Speaker 2: You won't do that.

Speaker 2: There's no reason

Speaker 1: I'll group text u and him and see which one he likes best

Speaker 2: Stop.

Speaker 2: You're talking to her.

Speaker 1: She has a right to know what shit her husband was doing

Speaker 1: No pun intended

Defendant's challenge to the accusatory instrument requires this court to examine whether it's facially sufficient. In order for a misdemeanor information to be facially sufficient, the factual part of the accusatory instrument must contain "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]; 100.40 [1] [a]); the "allegations of the factual part . . . together with those of any supporting depositions . . . provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]); {**87 Misc 3d at 401}and the "[n]on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; 100.15 [3]; People v Kalin, 12 NY3d 225 [2009]).

While "evaluating the sufficiency of an accusatory instrument," a court does "not look beyond its four corners (including supporting declarations appended thereto)" (People v Hardy, 35 NY3d 466, 475 [2020]). Here, the information is accompanied by three supporting depositions and two attached exhibits (referenced above) which confine the court's review to these documents only for sufficiency purposes. Collectively, these documents must support the charge as alleged or a dismissal is required. Additionally, "[a] court reviewing an accusatory instrument for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them." (People v Jackson, 75 Misc 3d 203, 204-205 [Crim Ct, Bronx County 2022].)

The factual portions of the information must "provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]), and those factual allegations are of the kind that "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." (People v Casey, 95 NY2d 354, 360 [2000].) Therefore the information should "be given a fair and not overly restrictive or technical reading." (Id.)

The factual allegations from each witness, taken as true, each identify the image as the complainant and her room, making the images identifiable. Defendant asserts that none of the [*3]photographs sent to his mother-in-law and sister-in-law "reveal the faces or any distinct recognizable features of the persons involved." However, contrary to defendant's contention, the statute does not require a "visible face or distinctive markers" in order to be sustained. (Defendant's aff at 11.) The law requires that a person must "reasonably be identifi[able] from the still or video image itself or from information displayed in connection with the still or video image." (Penal Law § 245.15 [1] [a].)

The information displayed in connection with the images provided context for the victim, her mother and sister-in-law to each recognize the room and computer as belonging to the victim. Defendant's message "in my fucking bed," displayed in connection with the images, aids in further making these images{**87 Misc 3d at 402} identifiable to all the parties. While photocopies of the screenshots in both attachments are legible and visible, the images' resolution would be even more definite upon receipt (and subsequently viewing it) on the phone itself. Therefore, upon viewing information displayed in connection with the images, the complainant, her mother and sister-in-law would be able to recognize and identify the complainant.

Next, defendant argues that the allegations do not set forth facts which substantiate the element that his alleged dissemination was done with intent to cause the complaining witness harm to her emotional, financial or physical welfare. (Defendant's aff at 13.) Defendant argues that the images sent to the complainant's mother and sister-in-law were a "limited disclosure intended to explain his reasons for pursuing separation, not to shame, embarrass, or financially harm his wife." (Id.) Such explanation appears to be plausible. However, the People argue the act of dissemination, coupled with the prior threats to disseminate said intimate images to family and friends, illuminates defendant's conscious objective making this version of facts also a plausible explanation for his actions.

The element of intent is rarely proved "by an explicit expression of culpability by the perpetrator." (People v Barnes, 50 NY2d 375, 381 [1980].) "[I]ntent may be inferred from conduct as well as the surrounding circumstances." (People v Hatton, 26 NY3d 364, 370 [2015].) Factors such as defendant's expressive conduct, the surrounding circumstances, the location of the incident and the existence of a prior relationship or a common understanding between the parties may support or negate an inference that defendant harbored the statutory purpose. (Id. at 372.) The competing inferences drawn from the facts in this case regarding defendant's intent illustrate a question of fact that exists; neither is unreasonable. Therefore, this issue is clearly within the exclusive domain of the finders of fact, not to be disturbed. (People v Bueno, 18 NY3d 160 [2011].)

Defendant's reliance on People v Marvel B. (84 Misc 3d 430 [Crim Ct, Kings County 2024]) is misplaced in this instance. The question before the Marvel B. court, pertaining to the count charging a violation of Penal Law § 245.15, was whether the factual allegations sufficiently alleged unlawful dissemination and an intent to harm. The Marvel B. deponent was informed by the complainant that the defendant sent the complainant multiple pictures in which the complainant's face is visible and clearly identifiable, engaging in oral sexual conduct with the{**87 Misc 3d at 403} defendant. These allegations included the defendant sending the complainant a text threatening to disseminate said intimate materials to all the complainant's social media followers and family if the complainant continued to "refuse" the defendant. (Id. at 432.)

The court in Marvel B. held that by the defendant texting the images in question to the complainant, the element of dissemination was sufficiently established. However, the court also held that by sending the images of the complainant solely to the complainant, these factual allegations are "insufficient alone to sustain the element of an intent to cause harm." (Id. at 434.) The [*4]court reasoned that while people in intimate relationships will share pictures that are sexually explicit in nature, once the sharing of those images outside of the relationship occurs to embarrass, hurt or damage the complainant's reputation, the intent is criminal and therefore punishable. (Id. at 435.) Here, the allegations are sufficient to establish both elements: identifiable and intent. Whether the prosecution can meet their burden of proof at trial is not for the court to determine now.

The prima facie case requirement for the facial sufficiency of an information "is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v Smalls, 26 NY3d 1064, 1066 [2015] [internal quotation marks omitted]). "The truth-seeking function is for the factfinder at trial" (People v Slade, 37 NY3d 127, 141 [2021]) and based on the legal sufficiency of this accusatory instrument, the matter will proceed to trial.