Abdilla, Rosanna 10/8/2019

For Educational Use Only

People v. Mowring, 64 Misc.3d 900 (2019)

105 N.Y.S.3d 290, 2019 N.Y. Slip Op. 29209
defendant committed the offense charged, and
contains nonhearsay allegations that establish
64 Misc.3d 900
every element of the offense charged and the
Criminal Court, City of New York,
defendant's commission of that offense. N.Y.
Richmond County.
CPL § 100.40(1).
The PEOPLE of the State of New York
Cases that cite this headnote
v.
Tyrone MOWRING, Defendant.
[2] Indictments and Charging Instruments
CR-007194-18RI Presumptions as to construction
| The court, when determining the sufficiency of
Decided July 10, 2019 an information, views the factual allegations as
true and considers all reasonable inferences that
Synopsis
may be drawn from these facts.
Background: Defendant was charged with violating city's
administrative code prohibiting the unlawful disclosure of an Cases that cite this headnote
intimate image. Defendant filed a motion to dismiss.

[3] Indictments and Charging Instruments

Presumptions as to construction
Holdings: The Criminal Court of the City of New York, Raja
The People have the burden to ensure that an
Rajeswari, J., held that:
information is facially sufficient.

[1] evidence alleged in State's charging information Cases that cite this headnote
established that defendant was a covered recipient, as required
for the charged offense, and
[4] Indictments and Charging Instruments
[2] statute criminalizing unlawful disclosure of an intimate Matters of fact or conclusions
image did not violate Ex Post Facto Clause, as applied to Indictments and Charging Instruments
defendant. Matters of evidence
The factual allegations in an information cannot
be conclusory; the required non-conclusory
Motion denied.
evidentiary allegations must be contained with
the four corners of the instrument itself or in an
Procedural Posture(s): Pre-Trial Hearing Motion.
annexed supporting deposition.

Cases that cite this headnote

West Headnotes (11)

[5] Indictments and Charging Instruments

[1] Indictments and Charging Instruments
Facial sufficiency
Reasonable or probable cause; prima facie
case Indictments and Charging Instruments
Practical or technical considerations
Indictments and Charging Instruments
Matters of evidence So long as the factual allegations of an
information give an accused notice sufficient to
A charging information is facially sufficient
prepare a defense and are adequately detailed to
when the factual part of the instrument
prevent a defendant from being tried twice for
establishes reasonable cause to believe that the
the same offense, they should be given a fair and

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

 Abdilla, Rosanna 10/8/2019
For Educational Use Only
People v. Mowring, 64 Misc.3d 900 (2019)
105 N.Y.S.3d 290, 2019 N.Y. Slip Op. 29209
not overly restrictive or technical reading on a
motion to dismiss once the accusatory instrument
meets that threshold, then the instrument is
facially sufficient.
Cases that cite this headnote
[6] Obscenity
Requisites and sufficiency in general
Statute governing offense of unlawful disclosure
of an intimate image requires more than mere
posting of an image on a website or the sending
of an image to other persons to survive a motion
to dismiss the information. New York City
Administrative Code, § 10-180(b)(1).
Cases that cite this headnote
[7] Obscenity
Requisites and sufficiency in general
To establish criminal liability under the statute
governing offense of unlawful disclosure of an
intimate image, the People must specifically
plead that the defendant is a covered recipient;
namely, that he either received the posted
material from the complainant or recorded it
himself. New York City Administrative Code, §
10-180(b)(1).
Cases that cite this headnote
[8] Obscenity
Requisites and sufficiency in general
Evidence alleged in State's charging information
established that defendant was a covered
recipient under the statute governing the offense
of unlawful disclosure of an intimate image,
where the information contained allegations that
defendant recorded the video of victim which he
allegedly published on a pornographic website
and that he engaged in intimate sexual act. New
York City Administrative Code, § 10-180(b)(1).
Cases that cite this headnote
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
[9] Constitutional Law
Penal laws in general
The constitutional prohibition against ex post
facto laws applies to penal statutes which
disadvantage the offender affected by them. U.S.
Const. art. 1, § 10, cl. 1.
Cases that cite this headnote
[10] Constitutional Law
Penal laws in general
Constitutional Law
Punishment in general
Constitutional Law
Criminal Proceedings
A statute will be considered an ex post facto
law if it punishes as a crime an act previously
committed, which was innocent when done,
makes more burdensome the punishment for a
crime, after its commission, or deprives one
charged with crime of any defense available
according to law at the time when the act was
committed. U.S. Const. art. 1, § 10, cl. 1.
Cases that cite this headnote
[11] Constitutional Law
Sex offenses
Obscenity
Retroactive operation
Statute criminalizing unlawful disclosure of an
intimate image did not violate Ex Post Facto
Clause, as applied to defendant who allegedly
published a video recording of himself and
victim engaged in a sexual act on a pornographic
website, where State's complaint alleged that
defendant committed the charged offense about
one to seven months after the law went into
effect. U.S. Const. art. 1, § 10, cl. 1.
Cases that cite this headnote
2
 Abdilla, Rosanna 10/8/2019
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People v. Mowring, 64 Misc.3d 900 (2019)
105 N.Y.S.3d 290, 2019 N.Y. Slip Op. 29209
Attorneys and Law Firms
**292 Legal Aid Society, New York City (Kelvin Richards,
of Counsel), for the defendant
Michael McMahon, District Attorney, Richmond County
(Uchechukwu Enwereuzor, of counsel)
Opinion
Raja Rajeswari, J.
*901 While this case is not the first in which a New York
court has considered criminal charges stemming from what
has come to be known as “revenge porn,” it is a case of first
impression in Richmond County where a defendant is charged
with violating Administrative Code of the City of New
York § 10-180 (b) (1) 1 (Unlawful Disclosure of an Intimate
Image). Defendant is accused of posting a pornographic video
of himself and the complainant to a pornographic website
without her consent.
I. FACTUAL BACKGROUND
A. The Allegations
According to the Misdemeanor Complaint, on, or about and
between, March 2018 and September 2018, the defendant
published a video recording of the defendant and the
complainant [C.F.] engaged in a sexual act on a pornographic
website. C.F. did not give the defendant permission or
authority to do this. The defendant admitted to C.F. that
he took this video some time between January 2013 and
December 2013. C.F. recognized the username used in
publishing the video to be that of the defendant based on his
use of the same username on other social platforms.
B. Legal Proceedings
On October 30, 2018, the defendant was arraigned on
a Misdemeanor Complaint charging him with Unlawful
Disclosure of an Intimate Image in violation of
Administrative Code § 10-177 (1), which was recodified
as Administrative Code § 10-180 (b) (1) as of March 1,
2019. Defendant was released on his own recognizance, and
the case was adjourned to January 18, 2019 for Discovery
by Stipulation. The Misdemeanor Complaint was converted
to an Information at the time of the arraignment when the
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
People filed and served C.F.'s electronically signed supporting
deposition.
Defendant filed the instant motion to dismiss on May 8, 2019.
The People filed their response on May 28, 2019. The case
has been sub judice since May 28, 2019.
II. DISCUSSION
The Information alleges that defendant posted a video
recording depicting himself and C.F. engaged in a sexual act
on a pornographic website, without her knowledge or consent,
and *902 charges the defendant with Unlawful Disclosure
of an Intimate Image in violation of Administrative Code §
10-180 (b) (1). For the reasons that follow, the court finds
that the Information is facially sufficient as to the sole count
charged.
A. The Information
Because this motion requires a detailed examination of the
content of the accusatory **293 instrument, the complete
text of its actual recitation, as sworn out by Detective
Salvatore Improta, is set out below.
“Deponent is informed by [C.F.] that, on or about and
between January 2013 and December 2013, inside of 43
Vanpelt Avenue, informant observed defendant take a video
recording of informant and defendant engaged in intimate
sexual act. Deponent is further informed by informant that
defendant was the sole recipient and custodian of the video
recording. Deponent further states that defendant stated, in
sum and substance, ‘I took the video.’ Deponent further states
that on or about September 24, 2018, informant observed
the aforementioned intimate video recording published on
a pornographic website thereby causing informant to feel
degraded. Deponent is further informed by informant that
informant recognized said intimate video recording to be
published by defendant in that informant recognized the
username used in publishing said recordings to be that of the
defendant's based on informant's prior experience observing
defendant use said username on multiple social platforms.”
B. Facial Insufficiency in General
[1] An information is facially sufficient when the factual part
of the instrument establishes reasonable cause to believe that
3
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People v. Mowring, 64 Misc.3d 900 (2019)

105 N.Y.S.3d 290, 2019 N.Y. Slip Op. 29209
the defendant committed the offense charged (CPL 100.40
[1] [b] ), and contains nonhearsay allegations that establish
every element of the offense charged and the defendant's
commission of that offense (CPL 100.40 [1] [c] ) (People
v. Hatton, 26 N.Y.3d 364, 23 N.Y.S.3d 113, 44 N.E.3d 188
[2015]; People v. Dumay, 23 N.Y.3d 518, 992 N.Y.S.2d 672,
16 N.E.3d 1150 [2014]; People v. Jackson, 18 N.Y.3d 738,
944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012]; People v. Kalin,
12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009];
People v. Konieczny, 2 N.Y.3d 569, 780 N.Y.S.2d 546, 813
N.E.2d 626 [2004]; People v. Henderson, 92 N.Y.2d 677, 685
N.Y.S.2d 409, 708 N.E.2d 165 [1999]).
[2] [3] [4] The court, when determining the sufficiency silent on how the video was recorded or how it came to be in
of the information, views the factual allegations as true and
considers all reasonable inferences that may be drawn from
these facts *903 (People v. Jackson, 18 N.Y.3d at 741, 747,
944 N.Y.S.2d 715, 967 N.E.2d 1160; People v. Konieczny,
2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626). The
People have the burden to ensure that the information is
facially sufficient (People v. Jones, 9 N.Y.3d 259, 261,
848 N.Y.S.2d 600, 878 N.E.2d 1016 [2007]). The factual
allegations in the information cannot be conclusory (People v.
Kalin, 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381).
The required “nonconclusory evidentiary allegations must be
contained with the four corners of the instrument itself or in an
annexed supporting deposition” (People v. Thomas, 4 N.Y.3d
143, 146, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005]).
[5] This prima facie case requirement for the facial and share photographs and videos continues to expand at
sufficiency of an information does not rise to the level of a
motion to dismiss based on the evidence presented at trial
(Kalin, 12 N.Y.3d at 230, 878 N.Y.S.2d 653, 906 N.E.2d
381). “So long as the factual allegations of an information
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, they should be given a fair and
not overly restrictive or technical reading” (People v. Smalls,
26 N.Y.3d 1064, 1066-1067, 23 N.Y.S.3d 134, 44 N.E.3d 209
[2015]; quoting People v. Casey, 95 N.Y.2d 354, 360, 717
N.Y.S.2d 88, 740 N.E.2d 233 [2000]). Once the accusatory
instrument meets that threshold, then the instrument is facially “revenge porn” remains legal under the law of this state,
sufficient ( **294 People v. Casey, 95 N.Y.2d at 360, 717
N.Y.S.2d 88, 740 N.E.2d 233).
[6] Defendant moves to dismiss the sole count of the
accusatory instrument, which charges Unlawful Disclosure
of an Intimate Image, as facially insufficient. Only one other
court has had the opportunity to construe Unlawful Disclosure
of an Intimate Image, which has been in effect only since
February 2018. 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 website or the sending of an
image to other persons (see People v. Ahmed, 64 Misc 3d
601, 102 N.Y.S.3d 421, 2019 N.Y. Slip Op. 29170 [Crim.
Ct., Bronx County 2019] [court granted dismissal where
the complaint alleged that the posted video depicted the
complainant performing oral sex on the defendant but was
the defendant's possession] ).
Administrative Code § 10-180 (b) (1) provides that
“it is unlawful for a covered recipient to disclose an
intimate image, without the depicted individual's consent,
with the intent to cause economic, physical or substantial
emotional harm to such depicted individual, where such
depicted individual is or would be identifiable to another
individual either *904 from the intimate image or from
the circumstances under which such image is disclosed.”
The court begins by exploring the state of current affairs
that led to the passing of this recent legislation. As the
accessibility to the technology that allows us to easily capture
what feels like an exponential pace, instances of people
maliciously distributing intimate photos or videos as a means
of punishing or humiliating the person depicted in those
images appear to be on the rise. While we have a reasonable
expectation of privacy in, inter alia, department store dressing
rooms, public restrooms, and locker rooms, our implicit
expectation of privacy in intimate relationships has been
largely overlooked. Should both partners in an intimate
relationship not feel secure in the knowledge that the sexual
images they may have shared will never be made public
without their consent? While, unfortunately, the practice of
New York City's Council Committee on Public Safety has
addressed the lack of protection for victims of “revenge porn”
within the geographical confines of New York City.

C. Legal Analysis

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4

 Abdilla, Rosanna 10/8/2019
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People v. Mowring, 64 Misc.3d 900 (2019)
105 N.Y.S.3d 290, 2019 N.Y. Slip Op. 29209
In their testimony before the City Council, the NYPD noted
that revenge porn is commonly used in domestic violence
cases, but that its officers “[do] not currently have tools
to assist or to bring charges forth because there is no
current law that criminalizes the specific act” (see New York
City Council, Committee on Public Safety, Report of the
Governmental Affairs Division on Proposed Int. No. 1267-
A, November 15, 2017 [“Committee Report”] at 6). As of
the date of the Committee Report, thirty-five states and the
District of Columbia have laws that criminalize revenge porn
or the nonconsensual disclosure of sexually explicit content
(id.).
New York's state of the law provides that a person can be
“charged with unlawful surveillance in the second degree if an
individual uses a device to view, broadcast or record a person
engaged in sexual conduct without their consent” so long as
someone's intimate parts are exposed (Penal Law § 250.45
[4] ). However, the state law applies only in cases where the
depicted person does not know or did not consent to being
photographed or recorded.
**295 In situations where the original image or video
was taken consensually, but later disclosed nonconsensually,
police officers are unable to charge or arrest individuals under
the State *905 Penal Law (id. at 7). Similarly, according to
representatives from the Queens County District Attorney's
Office, prosecutors are powerless due to gaps in existing
criminal statutes in New York (id. at 8).
In fact, when prosecutors have attempted to use Penal Law
provisions to prosecute revenge porn cases, New York state
courts have often struck them down. For example, in 2014, a
New York City Criminal Court found charges of Aggravated
Harassment, Dissemination of Unlawful Surveillance, and
Public Display of Offensive Sexual Material to be legally
insufficient in a case where a man allegedly posted naked
photographs of his ex-girlfriend, which she previously shared
with him, on his Twitter account, and sent photos to her
employer and her sister (see People v. Barber, 42 Misc. 3d
1225[A], 2014 N.Y. Slip Op. 50193[U], 2014 WL 641316
[Crim. Ct., NY County 2014]).
The NYPD and the Office of the Queens County District
Attorney agreed in their testimony before the Council that
“enacting a law that explicitly prohibits the nonconsensual
distribution of intimate images of another person would
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
profoundly improve enforcement of such acts and contribute
to their prevention” (Committee Report at 9). Hence,
Administrative Code § 10-180 (b) (1) was intended to close
this loophole in the law where a person consented to the
original image being captured, or produced it themselves, but
did not consent to its distribution. At its core, this law is
“intended to address the violation of trust that occurs when a
legitimate and intimate image of an individual is used against
them in a malicious fashion” (id. at 16).
In deciding the instant motion, the court begins by parsing
the elements of Administrative Code § 10-180 (b) (1). Those
elements are:
1. Covered recipient: The term “covered recipient” means
an individual who gains possession of, or access to,
an intimate image from a depicted individual, including
through the recording of the intimate image.
2. Depicted individual: The term “depicted individual”
means an individual depicted in a photograph, film,
videotape, recording or any other reproduction of an
image that portrays such individual (i) with fully or
partially exposed intimate body parts, (ii) with another
individual whose intimate body parts are exposed, as
recorded immediately before or after the occurrence of
sexual activity between those individuals, or (iii) engaged
in sexual activity.
*906 3. Disclose: The term “disclose” means to
disseminate as defined in subdivision (5) of Penal Law §
250.40, or to publish as defined in subdivision (6) of Penal
Law § 250.40.
4. Intimate image: The term “intimate image” means
a photograph, film, videotape, recording or any other
reproduction of an image of a depicted individual that has
been disclosed or threatened to be disclosed in a manner in
which, or to a person or audience to whom, the depicted
individual intended it would not be disclosed, at the time at
which the covered recipient gained possession of, or access
to, the intimate image. An intimate image does not include
any image taken in a public place as defined in Penal Law
§ 250.40, except if, at the time the image was recorded,
an individual in the depicted individual's position would
reasonably have believed that no one other than the covered
recipient could view the applicable intimate body **296
5
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People v. Mowring, 64 Misc.3d 900 (2019)

105 N.Y.S.3d 290, 2019 N.Y. Slip Op. 29209
parts or sexual activity while such body parts were exposed inside of 43 Vanpelt Avenue, informant observed defendant
or such activity was occurring. take a video recording of informant and defendant engaged
in intimate sexual act.” As such, the defendant is a “covered
5. Sexual activity: The term “sexual activity” means sexual recipient.”
intercourse as defined in subdivision (1) of Penal Law §
130.00, oral sexual conduct or anal sexual conduct as those [9] [10] Turning now to the defendant's second argument
terms are defined in subdivision (2) of Penal Law § 130.00, that the count of Unlawful Disclosure of an Intimate Image
touching of the sexual or other intimate parts of a person for violates the Ex Post Facto Clause of the United States
the purpose of gratifying sexual desire, sexual penetration Constitution, which provides that “[n]o State shall pass
with any object or the transmission or appearance of semen any ex post facto law” (US Const, art I, § 10 [1] ). The
upon any part of the depicted individual's body. constitutional prohibition against ex post facto laws applies
to “penal statutes which disadvantage the offender affected
6. The Intent Element: Administrative Code § 10-180 (a)
by them” (Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct.
prohibits the distribution of intimate images only when
2715, 111 L.Ed.2d 30 [1990]). A statute will be considered
the images are distributed with the intent to cause the
an ex post facto law if it “punishes as a crime an act
depicted individual “economic, physical, or substantial
previously committed, which was innocent when done,”
emotional harm.” According to the Council, “this element
“makes more burdensome the punishment for a crime, after
was included to ensure that this prohibition applies only to
its commission,” or ‘deprives one charged with crime of any
individuals who act with malicious intent. The prohibition
defense available according to law at the time when the act
would typically apply to a former or current intimate
was committed” (Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct.
partner of a depicted individual” (Committee Report, at
68, 70 L.Ed. 216 [1925]; see Rogers v. Tennessee, 532 U.S.
15).
451, 456, 121 S.Ct. 1693, 149 L.Ed.2d 697 [2001]; **297
Collins v. Youngblood, 497 U.S. at 42, 110 S.Ct. 2715; Calder
Defendant correctly argues in his motion that the statute
v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 [1798];
applies only to a “covered recipient.” However, defendant
Kellogg v. Travis, 100 N.Y.2d 407, 764 N.Y.S.2d 376, 796
incorrectly argues that “the accusatory instrument requires
N.E.2d 467 [2003]).
that the People show the covered recipient gained access to or
possession of such images/video from the depicted individual
[11] Specifically, defense counsel argues that the law
herself, and they fail to state these facts.”
criminalizing and punishing the defendant's alleged conduct
did not go into effect until after the conduct was committed.
[7] To establish criminal liability under this statute, the
Both sides are in agreement that the law the defendant
People must specifically plead that the defendant is a “covered
is charged with violating, specifically the subsection that
recipient;” namely, that he either received the posted material
allows for a criminal charge and a criminal conviction,
from the complainant or recorded it himself.
went into effect 60 days from December 17, 2017, which
is approximately February 17, 2018. The complaint herein
*907 [8] In People v. Ahmed, the only other court to
alleges that the defendant committed the charged offense “on,
consider criminal charges stemming from Administrative
or about and between, March 2018 and September 2018.” As
Code § 10-180 (a), the court reasoned that “the [covered
such, defendant's argument fails.
recipient] element would be satisfied by an allegation in
the complaint that the defendant received the video directly
from the complainant or that he recorded it himself” (Ahmed, *908 III. CONCLUSION
64 Misc 3d at 606, 102 N.Y.S.3d 421, 2019 N.Y. Slip Op. For the foregoing enumerated reasons, defendant's motion is
29170, *1). Unlike the accusatory instrument in Ahmed, the denied in its entirety.
information here satisfies the element of “covered recipient”
by containing allegations that the defendant recorded the This constitutes the Decision and Order of this court.
video himself. The People have specifically pled that “on
or about and between January 2013 and December 2013,

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

 Abdilla, Rosanna 10/8/2019
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People v. Mowring, 64 Misc.3d 900 (2019)

105 N.Y.S.3d 290, 2019 N.Y. Slip Op. 29209
All Citations

64 Misc.3d 900, 105 N.Y.S.3d 290, 2019 N.Y. Slip Op. 29209

Footnotes
1 Section renumbered (formerly § 10-177) Local Law No. 192 (2018) of City of New York § 192/2018 § 2, eff. Mar. 1, 2019.

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. 7