Abdilla, Rosanna 10/8/2019

For Educational Use Only

People v. Barber, 42 Misc.3d 1225(A) (2014)

992 N.Y.S.2d 159, 2014 N.Y. Slip Op. 50193(U)
245.11(a) (Count Three). For the reasons that follow, the
Court GRANTS the motion to dismiss as to all counts. 2
KeyCite Yellow Flag - Negative Treatment
Distinguished by People v. Stone, N.Y.City Crim.Ct., March 24, 2014
42 Misc.3d 1225(A) I. FACTUAL BACKGROUND
Unreported Disposition
(The decision is referenced in A. The Allegations
the New York Supplement.) According to the Misdemeanor Complaint, on July 26, 2013,
Criminal Court, City of New York, at approximately 3:00 p.m., the defendant posted naked
New York County. pictures of Adriana Batch, who was then his girlfriend, on his
Twitter account, and also sent those pictures to Ms. Batch's
The PEOPLE of the State of New York
employer and sister. 3 Ms. Batch did not give the defendant
v.
permission or authority to do this. Defendant admitted to a
Ian BARBER, Defendant.
detective that he posted and sent the pictures, but asserted that
he informed or obtained permission from Ms. Batch before
No. 2013NY059761.
doing so.
|
Feb. 18, 2014.
B. Legal Proceedings
Attorneys and Law Firms
On August 2, 2013, the defendant was arraigned on a
Benjamin Dell, The Legal Aid Society, New York, for Misdemeanor Complaint charging him with Aggravated
defendant. Harassment in the Second Degree, in violation of Penal Law
§ 240.30(1)(a), Dissemination of an Unlawful Surveillance
Jennifer Abreu, Office of the District Attorney, New York, for Image in the Second Degree, in violation of Penal Law §
people. 250.55, and Public Display of Offensive Sexual Material, in
violation of Penal Law § 245.11(a). Defendant was released
Opinion
on his own recognizance, and the case was adjourned to
STEVEN M. STATSINGER, J. August 28, 2013, for conversion; specifically, a Supporting
Deposition from Adrianna Batch.
*1 This case appears to the first in which a New York
court has considered criminal charges stemming from what On August 28, 2013, the People filed and served a
has come to be known as “revenge porn.” 1 Defendant is supporting deposition from Ms. Batch, which converted the
accused of posting nude photos of the complainant, who was Misdemeanor Complaint into an Information, and the Court
then his girlfriend, to his Twitter account and to have sent set a motion schedule.
those same photos to her employer and sister, without her
consent. After carefully considering the allegations in the Defendant filed the instant motion to dismiss on November
Information, the Court concludes that defendant's conduct, 26, 2013. The People filed their response at the December
while reprehensible, does not violate any of the criminal 12, 2013, calendar call. The case has been sub judice since
statutes under which he is charged. December 12, 2013.

Specifically, defendant is charged with Aggravated

II. DISCUSSION
Harassment in the Second Degree, in violation of Penal Law
The Information alleges that defendant posted naked pictures
§ 240.30(1)(a) (Count One), Dissemination of an Unlawful
of Ms. Batch to his Twitter account and sent those same
Surveillance Image in the Second Degree, in violation of
pictures to her employer and her sister, all without her
Penal Law § 250.55 (Count Two), and Public Display of
knowledge or consent, and charges the defendant with
Offensive Sexual Material, in violation of Penal Law §
Aggravated Harassment in the Second Degree, in violation

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

 Abdilla, Rosanna 10/8/2019
For Educational Use Only
People v. Barber, 42 Misc.3d 1225(A) (2014)
992 N.Y.S.2d 159, 2014 N.Y. Slip Op. 50193(U)
of Penal Law § 240.30(1)(a) (Count One), Dissemination of
an Unlawful Surveillance Image in the Second Degree, in
violation of Penal Law § 250.55 (Count Two), and Public
Display of Offensive Sexual Material, in violation of Penal
Law § 245.11(a) (Count Three). For the reasons that follow,
the court finds that the Information is facially insufficient as
to all three counts.
A. The Information
*2 Because this motion requires a detailed examination of
the content of the accusatory instrument, the complete text
of its factual recitation, as sworn out by Detective Anthony
Cozzi, is set out below.
I am informed by Adrianna Batch, of an address known
to the District Attorney's Office, that she observed the
defendant's Twitter account post naked pictures of herself
and that she recognized the Twitter account as belonging
to the defendant. Ms. Batch informed me that she did not
give the defendant permission or authority to post naked
pictures of herself. Ms. Batch also informed me that she
observed that the defendant sent the pictures on Twitter to
her employer and sister.
The defendant stated in substance to me that he posted
naked pictures of Ms. Batch on his Twitter account and that
he did inform or obtain permission from Ms. Batch to post
said naked pictures.
B. Facial Insufficiency in General
To be facially sufficient, an Information must contain non-
hearsay allegations providing reasonable cause to believe that
the People can prove every element of the crime charged. CPL
§ 100.40(1)(a)-(c). See also People v. Dumas, 68 N.Y.2d 729
(1986); People v. Alejandro, 70 N.Y.2d 133 (1988); People v.
McDermott, 69 N.Y.2d 889 (1987); People v. Case, 42 N.Y.2d
98 (1977). Reasonable cause to believe that a person has
committed an offense “exists when evidence or information
which appears reliable discloses facts or circumstances which
are collectively of such weight and persuasiveness as to
convince a person of ordinary intelligence, judgment and
experience that it is reasonably likely that such offense
was committed and that such person committed it.” CPL §
70.10(2).
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
This standard does not require that the Information allege
facts that would prove defendant's guilt beyond a reasonable
doubt. People v. Jennings, 69 N.Y.2d 103, 115 (1986). Rather,
it need only contain allegations of fact that “give an accused
sufficient notice to prepare a defense and are adequately
detailed to prevent a defendant from being tried twice for the
same offense.” People v.. Casey, 95 N.Y.2d 354, 360 (2000).
A court reviewing for facial insufficiency must assume that
the factual allegations contained in the Information are true
and must consider all reasonable inferences that may be
drawn from them. CPL §§ 100.40, 100.15; People v. Jackson,
18 NY3d 738, 747 (2012). See also Casey, 95 N.Y.2d at
360. Under these standards, the accusatory instrument here is
facially insufficient.
C. Legal Analysis
1. Count Two–Dissemination of an Unlawful Surveillance
Image in the Second Degree
Defendant moves to dismiss Count Two, which charges
Dissemination of an Unlawful Surveillance Image in the
Second Degree, as facially insufficient. Only one other court
has had occasion to construe Penal Law § 250.55, which
has been in effect only since 2003. Despite this dearth of
case law, it is clear that this section, by its very terms,
requires more than the mere posting of an image on a social
networking site such as Twitter or the sending of an image
other persons. See People v. Morriale, 20 Misc.3d 558 (Crim
Ct N.Y. County 2008) (defendant used a camera phone to
surreptitiously record himself having sexual intercourse with
the complainant, then sent the video to at least one other
person). Since that is all that is alleged here, Count Two is
facially insufficient.
*3 Section 250.55 provides that a “person is guilty of
dissemination of an unlawful surveillance image in the second
degree when he or she, with knowledge of the unlawful
conduct by which an image or images of the sexual or other
intimate parts of another person or persons were obtained and
such unlawful conduct would satisfy the essential elements
of the crime of unlawful surveillance in the first or second
degree, intentionally disseminates such image or images.”
The Court begins by parsing § 250.55 into its elements. Those
elements are:
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 Abdilla, Rosanna 10/8/2019
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People v. Barber, 42 Misc.3d 1225(A) (2014)
992 N.Y.S.2d 159, 2014 N.Y. Slip Op. 50193(U)
1. Dissemination: The Intentional dissemination of an image
of the sexual parts of another person or persons;
2. Unlawful Conduct: Unlawful conduct in obtaining the
image that would constitute a violation of Penal Law § 250.45
(Unlawful Surveillance in the Second Degree) or Penal Law §
250.50 (Unlawful Surveillance in the First Degree). In order
to establish this second element, the statute requires proof that
the defendant violated § 250.45 in obtaining the image in one
or more of the following ways:
a. For his or her own, or another person's amusement,
entertainment, or profit, or for the purpose of degrading or
abusing a person, he or she intentionally uses or installs,
or permits the utilization or installation of an imaging
device to surreptitiously view, broadcast or record a person
dressing or undressing or the sexual or other intimate parts
of such person at a place and time when such person has
a reasonable expectation of privacy, without such person's
knowledge or consent; or
b. For his or her own, or another person's sexual arousal or
sexual gratification, he or she intentionally uses or installs,
or permits the utilization or installation of an imaging
device to surreptitiously view, broadcast or record a person
dressing or undressing or the sexual or other intimate parts
of such person at a place and time when such person has
a reasonable expectation of privacy, without such person's
knowledge or consent; or
c. For no legitimate purpose, he or she intentionally uses
or installs, or permits the utilization or installation of
an imaging device to surreptitiously view, broadcast or
record a person in a bedroom, changing room, fitting room,
restroom, toilet, bathroom, washroom, shower or any room
assigned to guests or patrons in a motel, hotel or inn,
without such person's knowledge or consent; or
d. Without the knowledge or consent of a person, he or she
intentionally uses or installs, or permits the utilization or
installation of an imaging device to surreptitiously view,
broadcast or record, under the clothing being worn by such
person, the sexual or other intimate parts of such person.
Alternatively, the People can satisfy the Unlawful Conduct
element by establishing that the defendant engaged in one or
more of the above acts having been previously convicted of
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
a violation of § 250.50 or § 250.45 within the past ten years.
Penal Law § 250.50; and
*4 3. Knowledge: The People must establish that the
defendant knew of the unlawful conduct-described above-by
which the image was obtained.
Here, the Information pleads facts only in support of the
first element of § 250.55–an intentional dissemination of
naked pictures of the complainant. It pleads no facts at all
regarding the manner in which the pictures were obtained,
let alone the specific types of unlawful behavior identified in
§ 250.45, which is incorporated by reference into § 250.55.
The Information also pleads no facts from which it could be
inferred that defendant knew anything about the manner in
which the photographs were obtained.
The Court notes that the accusatory instrument in Morriale
was considerably more detailed than the Information here,
yet it was still facially insufficient. Unlike the Information
here, the Information there contained allegations about
how the defendant obtained the images-he used a camera
phone to record himself having sexual intercourse with the
complainant without her knowledge or authority. 20 Misc.3d
at 560. But it was still insufficient in that it failed to allege all
of the elements of either § 250.45, in particular the requisite
intent, the specific location, and the complainant's expectation
of privacy, or of § 250.50, in particular the prior conviction.
Id. at 560–61.
The Information here is even thinner. Accordingly, the charge
of Dissemination of an Unlawful Surveillance Image in the
Second Degree is dismissed as facially insufficient.
2. Counts One and Three are Also Facially Insufficient
Although defendant's motion to dismiss raises a facial
sufficiency challenge only to Count Two, the requirement of a
facially sufficient accusatory instrument is jurisdictional and
nonwaivable. Alejandro, 70 N.Y.2d at 136 (“an information
which fails to contain nonhearsay allegations establishing if
true, every element of the offense charged and the defendant's
commission thereof ... is fatally defective”) (citation and
internal quotation marks omitted). Accordingly, the Court has
an independent obligation to review for facial sufficiency as
a means of assuring that it retains subject matter jurisdiction.
See, e.g., People v. Martini, 36 Misc.3d 729, 731–32 (Crim Ct
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People v. Barber, 42 Misc.3d 1225(A) (2014)
992 N.Y.S.2d 159, 2014 N.Y. Slip Op. 50193(U)
Queens County 2012); People v. Machado, 182 Misc.2d 194,
197–98 (Crim Ct Bronx County 1999). Having undertaken
a sua sponte review of the Information, the Court readily
concludes that it is facially insufficient as to Counts One and
Three, as well.
a. Count One–Aggravated Harassment in the Second
Degree
In this case, the accusatory instrument does not allege that the
defendant either communicated directly with the complainant
or that he induced others to do so. Since the mere posting
of content, however offensive, on a social networking site
such as Twitter does not constitute Aggravated Harassment
in the Second Degree, the Court grants defendant's motion to
dismiss Count One.
*5 “A person is guilty of aggravated harassment in the
second degree when, with intent to harass, annoy, threaten
or alarm another person, he ... communicates with a person,
anonymously or otherwise, by telephone, by telegraph, or
by mail, or by transmitting or delivering any other form
of written communication, in a manner likely to cause
annoyance or alarm.” Penal Law § 240.30(1)(a). Clearly,
it is essential to a charge of Penal Law § 240.30(1)(a)
that the defendant undertake some communication with the
complainant. People v. Thompson, 28 Misc.3d 483 (Crim Ct
Kings County 2010); People v. Miguez, 147 Misc.2d 482
(Crim Ct N.Y. County 1990), aff'd 153 Misc.2d 442 (1992).
In this case, however, the Information contains no factual
allegation supporting the inference that the defendant had
any communication at all with Ms. Batch. It does not even
allege that she received a Tweet from him containing the
pictures, only that she saw that defendant had posted them on
his Twitter account and saw that he had emailed them to her
employer and sister.
Penal Law § 240.30(1) “was intended to include
communications which are obscene ..., threats which are
unequivocal and specific, ... [and] communications which
are directed to an unwilling recipient under circumstances
wherein substantial privacy interests are being invaded in an
essentially intolerable manner'.” People v. Smith, 89 Misc.2d
789, 791 (App Term 2d Dept 1977), emphasis added and
citations omitted. Here, defendant is not alleged to have
sent anything to Ms. Batch; rather, he is alleged only to
have posted naked photographs of Ms. Batch on his Twitter
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
account, and to have sent them to her employer and to her
sister. Absent any communication directly to the complainant,
this conduct does not constitute Aggravated Harassment in
the Second Degree.
Not only does the Information not allege that defendant
himself sent anything to Ms. Batch, if also fails to allege
that he induced others to communicate with her. This case
is accordingly unlike People v. Kochanowski, 186 Misc.2d
441 (App Term 2d Dept 2000), where the defendant caused a
website to be created that displayed suggestive photographs
of the complainant, his ex-girlfriend, along with her address
and telephone number and suggested that third parties contact
her for sex, which they in fact did. Here, by contrast,
defendant simply posted the his materials on Twitter without
any contact with Ms. Batch or suggestion that she be
contacted. The court in Kochanowski held that by using
a computer, the defendant and a co-worker “cause[d] a
communication to be initiated by mechanical or electronic
means or otherwise'.... The means by which communication
to the victim was made was the telephone, a device plainly
within the ambit of the statute.” Id. at 443, citations omitted,
emphasis in original. Defendant there violated § 240.30(1)(a)-
even though he did not “plac[e] the phone call to his victim
himself”-because he “used others to do so.” Id. at 444.
*6 In the instant case, the defendant did not cause a
communication to Ms. Batch to be initiated by mechanical or
electronic means, or indeed at all. He did not communicate
with Ms. Batch directly via computer, nor did he use the
computer to encourage others to do so. He merely posted
photographs to his Twitter account, where Ms. Batch saw
them, and sent them to third parties, who apparently showed
them to her. Importantly, however, there is no allegation that
they did so at defendant's behest.
This case is accordingly similar to People v. Dupont, 107
A.D.2d 247 (1st Dept 1985), where the defendant distributed
printed material accusing the complainant of homosexuality
and dishonest business dealings. The material was, however,
never distributed directly to the complainant. In reversing
the defendant's conviction for Aggravated Harassment in
the Second Degree, the court held that “the harassment
statute” was intended to “punish[ ].. annoying and harassing
communications transmitted directly to the complainant. It
was not designed to prevent the dissemination, let alone the
publication of vexatious material about an individual. There
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People v. Barber, 42 Misc.3d 1225(A) (2014)
992 N.Y.S.2d 159, 2014 N.Y. Slip Op. 50193(U)
may be civil remedies for such conduct. Offensive as the
defendant's activities may have been, they did not violate
the statute.” Id. at 252. Here, similarly, there is there is no
allegation of a “direct communication ... [an] interference
with privacy, nor is there a use or tying up of phone lines.
There is merely the distribution of [materials over Twitter],
offensive though it may be. Such conduct is plainly not within
the hard core' of the statute's proscriptions.” Id. 4
Accordingly, defendant's motion to dismiss the charge of
Aggravated Harassment in the Second Degree on the ground
of facial insufficiency is granted.
b. Count Three–Public Display of Offensive Sexual
Material–Penal Law § 245.11(a)
Count Three alleges a violation of Penal Law § 245.11.
The Court concludes that merely posting nude pictures on a
Twitter account or sending them to a small number of private
individuals does not violate this section.
Penal Law § 245.11 provides that
A person is guilty of public display of offensive sexual
material when, with knowledge of its character and content,
he displays or permits to be displayed in or on any
window, showcase, newsstand, display rack, wall, door,
billboard, display board, viewing screen, moving picture
screen, marquee or similar place, in such manner that the
display is easily visible from or in any: public street,
sidewalk or thoroughfare; transportation facility; or any place
accessible to members of the public without fee or other
limit or condition of admission such as a minimum age
requirement and including but not limited to schools, places
of amusement, parks and playgrounds but excluding rooms or
apartments designed for actual residence; any pictorial, three-
dimensional or other visual representation of a person or a
portion of the human body that predominantly appeals to the
prurient interest in sex, and that:
*7 (a) depicts nudity, or actual or
simulated sexual conduct or sado-
masochistic abuse....
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Statutes “punishing indecent exposure, though broadly
drawn, must be carefully construed to attack the particular evil
at which they are directed.” People v. Price, 33 N.Y.2d 831,
832 (1973). In light of this admonition, the Information here
is insufficient as to two elements of the offense.
First, the Information fails to sufficiently plead facts from
which it can be inferred that there was a “public display” of the
pictures of Ms. Batch. The terms of the statute clearly do not
encompass either posting an image on Twitter—a subscriber-
based social networking service 5 -or sending images to a
small number of private individuals, who might not even look
at the email or open the attachments. Both of these are private
acts. As the Court of Appeals has observed, “it is obvious that
article 245 was aimed at protecting the public—in essence,
unsuspecting, unwilling, nonconsenting, innocent, surprised
or likely-to-be offended or corrupted types of viewers' ...
from the sight of offensive activities and materials.” People
v. McNamara, 78 N.Y.2d 626, 631 (1991). Even taking
into account the vast technological changes since 1971,
when § 245.11 was enacted, the actions alleged here simply
do not constitute the “indiscriminate thrust upon unwilling
audiences,” People v. Isaac, 69 Misc.2d 758, 760–61 (Crim
Ct Bronx County 1972), that the statute was intended to cover.
The Information also fails to sufficiently plead facts
from which it can be inferred that the pictures at issue
“predominantly appeal[ed] to the prurient interest in sex” as
required by § 245.11. As to this element, it is not enough to
simply plead that the images were of a naked person, which is
all the Information here alleges. The statute clearly requires
both that the image “depict[ ] nudity” 6 and that the image
“predominantly appeal to the prurient interest in sex.”
Case law amply supports the proposition that nudity alone is
not enough. In People v. Oshry, 131 Misc.2d 888, 897 (Just Ct
Town of Clarkstown 1986), a photograph of a man fondling
the bare buttocks of a woman appealed to the “prurient
interest.” It was a “highly sensual, erotic picture bluntly
suggestive of dynamic sexual conduct between the parties.
It invites, even commands one to consider the imminence of
further sexual conduct since the hands are grasping or holding
the buttocks and their bodies are clearly pressed against each
other.” Id. By contrast, People v. Lou Bern Broadway, Inc.,
68 Misc.2d 112, 112 (Crim Ct N.Y. County 1971), aff'd, 73
5
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People v. Barber, 42 Misc.3d 1225(A) (2014)

992 N.Y.S.2d 159, 2014 N.Y. Slip Op. 50193(U)
Misc.2d 497 (App. Term 1st Dept.1971), rev'd, 32 N.Y.2d
816 (1973), involved a prosecution under § 245.11 for a large
III. CONCLUSION
photograph of a nude woman in a “prone position with her For the foregoing reasons, all Counts of the Information are
buttocks exposed and visible,” displayed outside a movie dismissed as facially insufficient. In light of this, the other
theater along with several smaller photographs of women branches of the defendant's omnibus motion are denied as
“apparently nude, with opaque or translucent coverings over moot.
buttocks and breasts.” The Court of Appeals concluded that
“the displays in this case, as a matter of law, do not fall within This constitutes the Decision and Order of the court.
the proscription of the statute.” 32 N.Y.2d at 816. Here, as in
Lou Bern, the allegation of a depiction of nudity, by itself,
does not violate § 245.11. All Citations

*8 The Information here fails to allege any sort of public 42 Misc.3d 1225(A), 992 N.Y.S.2d 159 (Table), 2014 WL
display, and alleges only that the images contained nudity, 641316, 2014 N.Y. Slip Op. 50193(U)
without any facts in support of the “prurient interest” element.
Count Three is accordingly facially insufficient.

Footnotes
1 This phenomenon has become common enough to have its own Wikipedia page, which defines the conduct as “sexually
explicit media that is publicly shared online without the consent of the pictured individual.” http://en.wikipedia.org/wiki/
Revenge_porn (last accessed February 11, 2014). That is precisely what is alleged in this case.
2 In reaching this decision the Court has considered, in addition to the relevant statutes and case law, the defendant's
dismissal motion and the People's opposition papers.
3 The Misdemeanor Complaint does not specify the means by which defendant is alleged to have sent the pictures to these
individuals, but the most reasonable inference is that it was by email.
4 Finally, the Court also finds that the Information is facially insufficient on an alternative theory defendant violated §
240.30(1) when he sent the pictures to her employer and sister. More facts than that would need to be pled to proceed
on this theory.
5 Apparently Twitter permits some limited ability for non-account holders to receive Tweets. See https:// support.twitter.com/
articles/20170004–fast–following–on–sms (last accessed February 13, 2014). But those who wish to see them must
actively look for them.
6 “Nudity” means: “the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque
covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top
of the nipple, or the depiction of covered male genitals in a discernibly turgid state.” Penal Law § 245.10.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 6