DECISION AND ORDEROPINION OF THE COURT 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 BACKGROUNDA. The AllegationsAccording 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 ProceedingsOn 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 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. DISCUSSIONThe 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 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 InformationBecause this motion requires a detailed examination of the content of the accusatory 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 GeneralAn information is facially sufficient when the factual part of the instrument establishes reasonable cause to believe that 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 NY3d 364 [2015]; People v. Dumay, 23 NY3d 518 [2014]; People v. Jackson, 18 NY3d 738 [2012]; People v. Kalin, 12 NY3d 225 [2009]; People v. Konieczny, 2 NY3d 569 [2004]; People v. Henderson, 92 NY2d 677 [1999]).The court, when determining the sufficiency of the information, views the factual allegations as true and considers all reasonable inferences that may be drawn from these facts (People v. Jackson, 18 NY3d at 741, 747; People v. Konieczny, 2 NY3d at 575). The People have the burden to ensure that the information is facially sufficient (People v. Jones, 9 NY3d 259, 261 [2007]). The factual allegations in the information cannot be conclusory (People v. Kalin, 12 NY3d at 229). 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 NY3d 143, 146 [2005]).This prima facie case requirement for the facial sufficiency of an information does not rise to the level of a motion to dismiss based on the evidence presented at trial (Kalin, 22 NY3d at 230). “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 NY3d 1064, 1066-1067 [2015]; quoting People v. Casey, 95 NY2d 354, 360 [2000]). Once the accusatory instrument meets that threshold, then the instrument is facially sufficient (People v. Casey, 95 NY2d at 360).C. Legal AnalysisDefendant 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, __ Misc 3d __, 2019 NY 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 silent on how the video was recorded or how it came to be in 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 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 and share photographs and videos continues to expand at 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 “revenge porn” remains legal under the law of this state, 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.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.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 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 NY Slip Op 50193[U] [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 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.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 parts or sexual activity while such body parts were exposed or such activity was occurring.5. Sexual activity: The term “sexual activity” means sexual intercourse as defined in subdivision (1) of Penal Law §130.00, oral sexual conduct or anal sexual conduct as those terms are defined in subdivision (2) of Penal Law §130.00, touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire, sexual penetration with any object or the transmission or appearance of semen upon any part of the depicted individual’s body.6. The Intent Element: Administrative Code §10-180 (a) prohibits the distribution of intimate images only when the images are distributed with the intent to cause the depicted individual “economic, physical, or substantial emotional harm.” According to the Council, “this element was included to ensure that this prohibition applies only to individuals who act with malicious intent. The prohibition would typically apply to a former or current intimate partner of a depicted individual” (Committee Report, at 15).Defendant correctly argues in his motion that the statute applies only to a “covered recipient.” However, defendant incorrectly argues that “the accusatory instrument requires that the People show the covered recipient gained access to or possession of such images/video from the depicted individual herself, and they fail to state these facts.”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.In People v. Ahmed, the only other court to consider criminal charges stemming from Administrative Code §10-180 (a), the court reasoned that “the [covered 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, 2019 NY Slip Op 29170, *1). Unlike the accusatory instrument in Ahmed, the information here satisfies the element of “covered recipient” by containing allegations that the defendant recorded the video himself. The People have specifically pled 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.” As such, the defendant is a “covered recipient.”Turning now to the defendant’s second argument that the count of Unlawful Disclosure of an Intimate Image violates the Ex Post Facto Clause of the United States Constitution, which provides that “[n]o State shall…pass any…ex post facto law” (US Const, art I, §10 [1]). The constitutional prohibition against ex post facto laws applies to “penal statutes which disadvantage the offender affected by them” (Collins v. Youngblood, 497 US 37, 41 [1990]). 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” (Beazell v. Ohio, 269 US 167, 169 [1925]; see Rogers v. Tennessee, 532 US 451, 456 [2001]; Collins v. Youngblood, 497 US at 42; Calder v. Bull, 3 US 386, 390 [1798]; Kellogg v. Travis, 100 NY2d 407 [2003]).Specifically, defense counsel argues that the law criminalizing and punishing the defendant’s alleged conduct did not go into effect until after the conduct was committed. Both sides are in agreement that the law the defendant is charged with violating, specifically the subsection that allows for a criminal charge and a criminal conviction, went into effect 60 days from December 17, 2017, which is approximately February 17, 2018. The complaint herein alleges that the defendant committed the charged offense “on, or about and between, March 2018 and September 2018.” As such, defendant’s argument fails.III. CONCLUSIONFor the foregoing enumerated reasons, defendant’s motion is denied in its entirety.This constitutes the Decision and Order of this court.Dated: July 10, 2019Staten Island, New York
