DECISION AND ORDER The defendant is charged by a superseding information with three counts of Unlawful Dissemination or Publication of an Intimate Image (Penal Law §245.15 [1] [A] [II]) (hereinafter “Unlawful Dissemination”), three counts of Unlawful Disclosure of an Intimate Image (NYC Administrative Code §10-180) (hereinafter “Unlawful Disclosure”) and one count of Coercion in the Third Degree (Penal Law §135.60 [3]). Defendant moves, pursuant to CPL 170.30 (1) (a), to dismiss the accusatory instrument on the ground that it is facially insufficient. Defendant also moves, pursuant to CPL 170.30 (1) (e), to dismiss the accusatory instrument on the ground that he has been denied his right to a speedy trial under CPL 30.30 (1) (b). MOTION TO DISMISS FOR FACIAL INSUFFICIENCY For the charges of Unlawful Dissemination and Unlawful Disclosure, the superseding information in this case alleges that on or about and between August 10, 2023, at 11:00 am and August 10, 2023, at 11:00 pm, the deponent is informed by the complainant that the defendant: texted the informant multiple pictures of the informant, in which the informant’s face is visible and clearly identifiable and the informant is further visible engaging in oral sexual conduct with the defendant by the informant making contact with the defendant’s penis using the informant’s mouth. The deponent is further informed by the informant that the informant recognized the above-described phone number to belong to the defendant based on prior communications. The deponent is further informed by the informant that all of the above-described pictures were taken in a circumstance in which the informant had a reasonable expectation of privacy and believed that said pictures would not be disseminated in that said pictures were recorded in a private bedroom. The deponent is further informed by the informant that the informant did not give the defendant permission nor authority to disseminate to post pictures anywhere. The deponent is further informed by the informant that the defendant’s above-described actions caused the informant to suffer emotional harm, in that the informant felt upset and anxious. For the charge of Coercion, the superseding information further alleges that on or about and between July 27, 2023, at 1:00 am and July 27, 2023, at 10:00 pm, the deponent is informed by the complainant that the defendant: stated to the informant over text, in sum and substance, that defendant would disseminate inappropriate photos or videos of the informant, and photos and videos of the informant together, and that the defendant would disseminate these intimate materials to all of the informant’s social media followers and family if the informant continued to refuse the defendant. Deponent is further informed by the informant that the informant did recognize the above-described phone number to belong to the defendant based on prior communications. The deponent is further informed by the informant that the above described actions caused the informant to become alarmed and annoyed, and to fear that if the defendant’s demands were not complied with, that the defendant would follow through on defendant’s threat. Defendant argues that all of the charges in the superseding information are facially insufficient in that: 1) the counts of Unlawful Dissemination are facially insufficient because the factual allegations fail to sufficiently allege dissemination as well as an intent to harm; 2) the counts of Unlawful Disclosure are facially insufficient because the charge does not specify which subsection the defendant is being charged with, and that the factual allegations fail to sufficiently allege the elements of disclosure and intent; and 3) the charge of Coercion in the Third Degree is facially insufficient because it fails to allege sufficient facts to establish the element of compulsion. In response, the People argue that there are sufficient factual allegations within the accusatory instrument to establish every element of the offenses charged. Specifically, the People argue that the dissemination and disclosure elements are satisfied by the factual allegations that the defendant sent intimate images to the complainant, who constitutes another person. The People also argue that the defendant was given sufficient notice of which subsection of AC §10-180 he is being charged with and that the accusatory instrument is facially sufficient with regard to the Coercion charge because it alleges that the complaining witness feared the defendant would act in conduct which constituted a crime if she did something that she had a legal right to refrain from engaging in. In order for a misdemeanor information, or any count thereof, to be facially sufficient, the factual portion of the accusatory instrument and any supporting depositions, must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offense or offenses charged. The non-hearsay allegations must establish, if true, every element of the offense. (CPL 100.15 [3]; CPL 100.20; CPL 100.40 [1]; People v. Alejandro, 70 NY2d 133, 137 [1987].) 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 citations omitted]). “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. Casey, 95 NY2d 354, 360 [2000] [internal citations omitted]). Unlawful Dissemination Penal Law section 245.15 (1) (a) (ii) states that: A person is guilty of unlawful dissemination or publication of an intimate image when, with intent to cause harm to the emotional, financial or physical welfare of another person, he or she intentionally disseminates or publishes a still or video image of such other person, who is identifiable from the still or video image itself or from information displayed in connection with the still or video image, without such other person’s consent, which depicts such other person engaging in sexual conduct as defined in subdivision ten of section 130.00 of this chapter with another person. Subsection (2-a) of the same section states that “[f]or the purpose of this section ‘disseminate’ and ‘publish’ shall have the same meaning as defined in section 250.40 of this title. Penal Law 250.40 defines disseminate as “to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person.” (PL §250.40 [5]) The same statute defines publish as: (a) to disseminate [as previously defined] with the intent that such images or images be disseminated to ten or more persons; or (b) disseminate with the intent that such images be sold by another person; or (c) post, present, display, exhibit, circulate, advertise or allows access, electronically or otherwise, so as to make an image or images available to the public; or (d) disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessible, electronically or otherwise and to make such image or images available to the public. (PL §250.40 [6]). Based on the facts contained within the superseding information, it is clear that when the defendant texted the images in question to the complaining witness, he did not ‘publish’ the image within the definition provided by Penal Law section 250.40 (6). However, the defendant did disseminate the images as defined by Penal Law section 250.40 (5). Nevertheless, merely disseminating an image is insufficient to sustain the charge of Penal Law section 245.15 (1) (a) (ii). The dissemination must also be unlawful. To establish this, the People are required to set forth facts which substantiates the element that the defendant’s dissemination was done with the intent to cause the complaining witness harm to her emotional, financial or physical welfare. Factual allegations that allege that the defendant sent the complainant intimate images of herself are insufficient alone to sustain the element of an intent to cause harm. “[P]eople in intimate relationships sometimes share pictures with each other, some of which may be sexually explicit in nature. However, recipients of these images do not always keep the images within the confines of an intimate relationship, and have the ability to widely disseminate the photos on the Internet.” (Assembly Mem in Support, Bill Jacket, L 2019, Ch 109). The Legislature, in enacting Penal Law section 245.15, never intended to criminalize the dissemination of intimate images among parties in a relationship. Rather, the purpose of the statute was to criminalize the conduct of a party who chose to share these intimate images outside the relationship. This conduct, “also known as ‘revenge porn’ is often provided to Internet websites, and features photos sometimes accompanied by disparaging descriptions and identifying details…[p]osting these photographs online is damaging to the reputations of the victims.” (Assembly Mem in Support, Bill Jacket, L 2019, Ch 109). The conduct becomes illegal when disseminating the intimate images to the public, friends or family to embarrass, hurt, harm or damage the complaining witness’s reputation. The Legislature’s commentary makes clear that dissemination of the intimate images to the public with the intent to harm the complaining witness is what is criminal, not sending the images, taken with the complainant’s consent, to the complainant. The People argue that the charges are sufficient because the complainant never gave the defendant permission or authority to disclose the images and the complainant had a reasonable expectation of privacy in these images. The complainant does have a reasonable expectation of privacy that these images stay between herself and the defendant.1 However, the People have failed to establish how the defendant sending these images to the complainant violated that expectation. More importantly, the People failed to establish how sending these images to the complainant caused her the type of harm that is enumerated within the statute. As the element of harm has not been sufficiently established, the counts of Unlawful Dissemination are facially insufficient. Unlawful Disclosure With regard to the charges of Unlawful Disclosure of an Intimate Image, the superseding information does not list which subsection of Administrative Code section 10-180 the defendant is being charged with. However, the superseding information, in listing the elements of the offense the defendant is being charged with, states 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 (Superseding Information at 3). Therefore, the superseding information makes clear that the defendant is being charged under subsection (b) (1) of Administrative Code section 10-180. As such, the defendant has been provided with sufficient notice of what he is charged with. A person commits the offense of Unlawful Disclosure when “a covered recipient [discloses] an intimate image, without the depicted individual’s consent, with the intent to cause economic, physical or substantial emotional harm to such depicted individual” (AC §10-180 [b] [1]). A “covered recipient” is “an individual who gains possession of, or access to, an intimate image from a depicted individual, including through the recording of the intimate image.” (AC §10-180 [a]). “The term ‘disclose’ means to disseminate as defined in subdivision 5 of section 250.40 of the penal law, or to publish as defined in subdivision 6 of section 250.40 of the penal law.” (Id.) For the reasons previously set forth by this court regarding the insufficiency of the charges of Unlawful Dissemination, the counts of Unlawful Disclosure are also insufficient, as the superseding information failed to set establish how the defendant sending the images to the complainant establishes an intent to cause economic, physical or substantial emotional harm to the complainant. Accordingly, these counts are facially insufficient. Coercion in the Third Degree A person commits the crime of Coercion in the Third Degree when “[h]e or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he or she has a legal right to engage…by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will engage in other conduct constituting a crime.” (PL §135.60 [3]) In order to plead the crime of Coercion, the People must show that the complainant was actually compelled to engage in conduct that she had a legal right to abstain from out of fear of what the defendant would do in response. (see, People v. Wager, 199 AD2d 642, 643 [3d Dept, 1993]). If the complainant did not engage in the conduct demanded, it would be sufficient for the charge of Attempted Coercion, but not the completed crime of Coercion (Id.). In this case, the allegations are that the defendant threatened the complainant that he would post and disseminate intimate images of the complainant if the complainant “continued to refuse the defendant.” At the onset, “refuse the defendant” is too vague to establish what conduct the complainant was supposed to engage or abstain from based on the threats and therefore fails to establish that element of the offense. Moreover, even if the court were to determine that the conduct the complainant was supposed to refrain or engage in was clear, the superseding information is void of any allegations that the complainant actually engaged in conduct she had a right to refrain from as a result of the defendant’s text. Therefore, the People failed to establish the element that the complainant engaged in conduct as a result of the defendant’s text. Accordingly, the superseding information is facially insufficient for the charge of Coercion in the Third Degree. For the foregoing reasons, Defendant’s motion to dismiss the accusatory instrument for facial insufficiency is granted. SPEEDY TRIAL Unlawful Dissemination is a misdemeanor which is punishable by a sentence of imprisonment of more than three months. The People, therefore, must announce their readiness for trial within 90 days of the commencement of the criminal action, not including any excludable periods of time (CPL 30.30 [1] [b] and [4]). In calculating time, the court must first calculate the time between the filing of the accusatory instrument and the People’s statement of readiness, subtract any time which is excludable and add any post-readiness delays that are attributable to the People and not eligible for an exclusion (CPL 30.30; People v. Cortes, 80 NY2d 201, 208 [1992]). On October 20, 2023, the defendant was arraigned on this case and the matter was adjourned to December 20, 2023, for conversion. This time period is chargeable to the People. (61 days charged / 61 days total) On December 20, 2023, the accusatory instrument had not yet been converted into an information and the People had not yet filed their Certificate of Compliance (hereinafter “COC”) and Statement of Readiness (hereinafter “SOR”). The matter was adjourned to February 1, 2024, for conversion, or, in the alternative, dismissal of the matter. However, on January 9, 2024, the People filed their superseding information and on January 10, 2024, the People filed their COC and SOR. The defendant argues that the SOR that was filed by the People was illusory. The defendant first argues that the SOR was illusory because the charges contained within the superseding information were facially insufficient. Additionally, defendant argues that there were discoverable materials that were not turned over by the People at the time their COC was filed, thereby rendering the COC invalid. In response, the People argue that the superseding information is facially sufficient and therefore, their SOR is valid. The People also argue that their COC was filed in good faith after exercising due diligence in obtaining the materials required to be disclosed to the defendant. “[I]n order for a SOR to be valid, the People must certify that all counts charged in a local criminal court accusatory instrument meet the requirements of CPL 100.15 and 100.40…and [the] counts not meeting the requirements of section 100.15 and 100.40 of this chapter have been dismissed” (People v. Williams, 207 NYS3d 332, 332 [App Term 2d Dept, 2024], see also CPL 30.30 [5-a]). “[I]f we were to read into CPL 30.30 that an inaccurate CPL 30.30 (5-a) certification as to any count in the accusatory instrument could render it and the SOR illusory and, thus, invalid to any remaining facially sufficient counts to which the CPL 30.30 (5-a) certification refers, we would only do so where there is a ‘basis upon which to believe that the People acted in bad faith’ in making their CPL 30.30 (5-a) certification” (Williams at 332, citing People v. Councel, 77 Misc3d 1132, 1136 [Crim Ct, Kings County 2022]). Unlike Williams, where only one count in the accusatory instrument was facially insufficient, here, every charge in the accusatory instrument is facially insufficient. The facial sufficiency issue here is not a question of whether a factual allegation in the accusatory instrument sufficiently makes out an element of an offense. Rather, the factual allegations do not establish an element of every charge in the accusatory instrument. As it is apparent that an element of each offense is missing from the factual allegations in the accusatory instrument, the People could not have believed at the time they filed their CPL 30.30 (5-a) certification that the accusatory instrument and the charges within it, were facially sufficient. Accordingly, the People’s CPL 30.30 (5-a) certification was not filed in good faith and, as such, the People’s SOR is illusory. Accordingly, the entire time period from December 20, 2023 to February 1, 2024, is chargeable to the People. (43 days charged / 104 days total) On February 1, 2024, defendant conveyed their intent to file the instant motion. A motion schedule was set and the matter was adjourned to April 3, 2024, for the court’s decision. Although the People had not yet filed a valid SOR, this time period is still excludable for motion practice (CPL 30.30 [4] [a]). (0 days charged / 104 days total) Accordingly, the People are charged with 104 days. Since the People have exceeded the 90-day time frame set forth in Criminal Procedure Law section 30.30, the defendant’s motion to dismiss is granted and the matter is dismissed and sealed. As the matter has been dismissed, the remainder of issues in the defendant’s motion have been rendered moot. CONCLUSION The charges within the People’s superseding information are facially insufficient. Accordingly, the accusatory instrument is dismissed for facial insufficiency. The People are charged with 104 days. Accordingly, the defendant’s motion to dismiss on speedy trial grounds is also granted. The matter is dismissed and sealed. This constitutes the decision and order of the court. Dated: July 8, 2024
