DECISION AND ORDER The defendant is charged with unlawful disclosure of an intimate image (New York City Administrative Code §10-180[b][1])1 and harassment in the second degree (PL §240.26[3]). He moves this court by Notice of Motion and Affirmation filed March 13, 2019 to dismiss the charge of unlawful disclosure of an intimate image on two grounds: First, that the complaint is facially insufficient pursuant to CPL §§100.40 and 170.30, and second, that the statute is unconstitutional on its face and as applied. The People oppose by Affirmation filed March 27, 2019. The Office of the Corporation Counsel of the City of New York (“Corporation Counsel”) opposes the defendant’s constitutional challenge by Affirmation filed March 27, 2019. On April 10, 2019, all parties appeared in part DVM and the court heard oral argument on all issues.The court has carefully considered the parties’ submissions, oral argument, and relevant law. For the reasons that follow, the motion to dismiss the charge as facially insufficient is granted with leave to supersede subject to the relevant provisions of CPL §30.30. As such, the court need not address the parties’ constitutional arguments, which are now rendered moot.THE MOTION TO DISMISS FOR FACIAL INSUFFICIENCYThe Parties’ ContentionsThe superseding accusatory instrument in this case, filed February 22, 2019, alleges in relevant part, that on or about April 16, 2018:Deponent [A.A.] states that at the above time and place, the defendant posted one (1) video to Instagram.com. Deponent further states that said video was posted to an Instagram.com account bearing the name [redacted]. Deponent further states she viewed the aforementioned video and that said video depicts her performing an oral sexual act on the defendant. Deponent further states that she is identifiable as the person in said video in that the caption on said video sates, in sum and substance, A.A. ISSA HOE.Deponent further states that she knows the Instagram.com account to be that of the defendant in that she has communicated with the defendant numerous times in the past via that account. Deponent further states that the defendant stated to her, in sum and substance, IF YOU DON’T SEND ME $400 I AM GOING TO EXPOSE YOU FOR THE WHORE YOU ARE TO THE WORLD.Deponent further states that she did not give the defendant permission or authority to publish, share, post, or otherwise distribute said video.Deponent further states that, as a result of the defendant’s aforementioned conduct, she experienced annoyance, alarm, and fear for her physical safety.The defendant argues that the complaint is facially insufficient in that it fails to establish that the defendant had the requisite intent to cause the complainant economic, physical, or substantial emotional harm. During oral argument, the defendant further argued that the complaint is devoid of factual allegations that establish the defendant as a “covered recipient” as required under AC §10-180(b).The People oppose, contending that the defendant’s culpable mental state can reasonably be inferred from the acts alleged in the complaint. As to the defendant’s status as a “covered recipient,” the People assert that this can be reasonably inferred from the fact that “the only two individuals in the video are the defendant and the victim,” and therefore that element is established.AnalysisFacial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution (see People v. Alejandro, 70 NY2d 133, 139 [1987]; People v. Hall, 48 NY2d 927 [1979]). In order to be facially sufficient, an information, together with any supporting depositions, must: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL §100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged (see CPL §100.40[1][a]-[c]). Conclusory allegations are insufficient (see People v. Dumas, 68 NY2d 729 [1986]).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 (CPL §§100.40 and 100.15; People v. Jackson, 18 NY3d 738, 747 [2012]; see also People v. Casey, 95 NY2d 354, 360 [2000]). However, “[f]acial sufficiency, by definition, limits the Court’s analysis to the four corners of the accusatory instrument” (People v. Williams, 21 Misc 3d 678, 684 [City Ct. Albany City 2008] citing People v. Thomas, 4 NY3d 143, 146 [2005]).While the burden is on the People to provide a prima facie case for the offenses charged in the accusatory instrument, this requirement “is not the same as the burden of proof beyond a reasonable doubt required at trial” (People v. Kalin, 12 NY3d 225, 230 [2009]). Rather, the accusatory instrument must “give an accused notice sufficient to prepare a defense” and be “adequately detailed to prevent a defendant from being tried twice for the same offense” (see id. at 230, internal citations and quotations omitted). When the factual portion of the information, together with any accompanying supporting deposition and viewed in the light most favorable to the People, fails to establish every element of the offense charged, the information is jurisdictionally defective and must be dismissed (see People v. Casey, 95 NY2d 354 [2000]; People v. Alejandro, 70 NY2d 133 [1987]).AC §10-180(b)(1) provides as follows: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 from the intimate image or from the circumstances under which such image is disclosed.This provision is the result of the New York City Council’s determination that criminal and civil remedies were necessary to curb the spread of what is commonly referred to as “revenge porn,” or the nonconsensual dissemination of sexually explicit images or other media (see generally New York City Council, Committee on Public Safety, Report of the Governmental Affairs Division on Proposed Int. No. 1267-A, November 1, 2017 ["Committee Report"]).Mindful of constitutional issues surrounding the prohibition of this kind of conduct, the New York City Council specifically defined certain terms within the first subsection of the statute in order to delineate which individuals could be held liable. The statute applies only to a “covered recipient,” which AC §10-180(a) defines as “an individual who gains possession of, or access to, an intimate image from a depicted individual, including through the recording of the intimate image.” A “depicted individual,” in turn, is “an individual depicted in a photograph, film, videotape, recording or any other reproduction of an image that portrays such individuals (i) with fully 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” (AC §10-180[a]).Further illustrating the New York City Council’s intent to clearly delineate who could be prosecuted is the fact that the current law represents a change from the original form of the bill:The original version of this bill prohibited any person from distributing an intimate image, whereas the current version only prohibits a “covered recipient”…Given the potential of images “going viral” or distributed widely in a rapid fashion on the internet or social networking sites, prohibiting “any person” from distributing the intimate image was too broad. It could potentially hold an individual liable or criminally responsible for sharing an image that he or she was unaware of its source. Therefore, the current version of the bill only addresses “covered recipients.”(Committee Report at 19). Thus, the New York City Council recognized that that this limitation would be essential in preventing unduly broad application of the law to individuals who may have no knowledge of the depicted individual’s consent or lack thereof. The change also demonstrates the New York City Council’s assessment that requiring factual allegations establishing that the defendant is a “covered recipient” would not impose an overly restrictive burden on the People.Therefore, to establish criminal liability under this statute, 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. Here, however, the complaint alleges that the posted video depicts the complainant performing oral sex on the defendant but is silent on how the video was recorded or how it came to be in the defendant’s possession. Clearly, the 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. The element may also be shown circumstantially in a complaint containing sufficient facts from which the court can infer the conditions of the video’s creation and possession. However, simply alleging that the defendant was a participant in the act portrayed in the video is not enough to establish that the defendant is a “covered recipient” under the statute. There are no allegations about the circumstances of the recording or even that there were no other people involved in the act or in the recording.2 The court then must rely on certain unsupported assumptions both as to how the video came into being and how the defendant came to possess it.To be facially sufficient, a complaint must contain facts from which the required element can be rationally drawn, and not simply speculated or assumed. This is particularly true when considering a charge where restricting liability to certain individuals was the express intention of the legislators behind the statute. Because the instant complaint fails to allege facts establishing that the defendant is a “covered recipient” whose conduct is thus prohibited under AC §10-180(b), this charge is facially insufficient and must be dismissed.Based on the foregoing, the defendant’s motion to dismiss count 2 of the accusatory instrument is granted. As such, the court need not address the constitutional arguments of the parties as the issue is now moot. The People are granted leave to supersede subject to the relevant provisions of CPL §30.30.This opinion constitutes the decision and order of this court.Dated: June 4, 2019Bronx, New York
