NY Court of Appeals

New York Court of Appeals grapples with Internet porn

Stacked3This week's Daily Record column is entitled "Court of Appeals grapples with Internet porn."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Court of Appeals grapples with Internet porn.

Last week, the New York Court of Appeals handed down its decision in People v. Kent, 2012 N.Y. Slip Op. 03572. In this decision, the court considered whether the defendant, by simply viewing images of child pornography on his computer screen, had knowingly procured or possessed child pornography in violation of Penal Law § 263.15 (Promoting a Sexual Performance by a Child) and Penal Law § 263.16 (Possessing a Sexual Performance by a Child).

The issue presented was a narrow one and required an analysis of whether “accessing and displaying” the images in a Web browser — where the browser, unbeknownst to the defendant, stored the images in its Web cache — constituted “control” over the images sufficient to amount to procurement or possession of the images.

After analyzing the applicable statutory definitions, case precedent, and the legislative intent behind the enactment of the relevant statutes, the court concluded that in the above scenario, sufficient “control” was not shown:

“We hold … that regardless of a defendant’s awareness of his computer’s cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving.”

The court then explained that New York’s current statutory framework was enacted prior to the large scale use of the Internet and was thus arguably in need of an update to include language like that found in the correlating federal statute:

“The federal statute regulating conduct related to child pornography, 18 USC § 2252A, provides a useful contrast. Section 2252A was amended in 2008 to provide that any person who either “knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography” is subject to a fine and imprisonment …”

I agree with the court’s analysis of the law as written and believe that the law is in need of revision in order to keep up with changing technologies.

That being said, what interested me most about this decision was not the court’s holding but the discussion found in the concurring opinions centered around whether simply viewing child pornography should be a crime.

In his concurring opinion, Judge Smith agreed that the legislative intent behind the New York statutes was to target consumers of child pornography, but he seems to (mistakenly) believe that those who simply view it do little to contribute to demand for child pornography since their actions don’t profit those who distribute it:

“I … acknowledge that, as Judge Graffeo says, Penal Law §§ 263.15 and 263.16 are designed to target the consumers of child pornography, in the hope of eliminating the market for it. … Under Judge Graffeo’s reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free — someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer — is subject to up to seven years in prison for a first offense (see Penal Law § 70.00[2][d] ). This is surely a stringent punishment for someone whom many would think more pathetic than evil.”

What Judge Smith doesn’t take into account is that the act of simply visiting most websites results in profits for the website owners. Even owners of websites that require no entry fee for the viewing of some images — especially those as profit-savvy as the purveyors of online pornography — are undoubtedly earning passive income from, at the very least, ads appearing on the site.

As the website receives more traffic, it becomes more appealing to advertisers and the website owner can thus charge more for ads placed on the site. So, every time someone visits a free website that contains images of child pornography, that individual is undoubtedly lining the pockets of — and increasing the future earning potential of — distributors of child pornography.

Accordingly, the inquiry should not focus on whether the consumer must pay a fee to access the images, since the mere act of visiting these websites supports the child pornography trade. If the legislative intent is to decrease demand by instilling the fear of prosecution in those who might view online child pornography, then the act of simply viewing any online image of child pornography should be unlawful. Whether payment is required for the “privilege” of doing so is irrelevant; the producers of online child pornography are profiting from the violation of our children nonetheless.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

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The Court of Appeals "gets it" when it comes to technology


This week's Daily Record column is entitled "The Court of Appeals "gets it" when it comes to technology."

A pdf of the article can be found  and my past Daily Record articles can be accessed here.


It is indisputable that technology is changing the world and the practice of law. Technological advances have increased our ability to rapidly disseminate information, and lawyers and non-lawyers alike have used this to their benefit. 

Of course the Internet is the obvious medium that comes to mind, but the advent of the fax machine was the beginning of a revolution in the rapid exchange of information. 

For years now, lawyers have used the fax machine to communicate and to conduct business. 

One lawyer’s creative attempt to use this medium to share information with other lawyers resulted in a lawsuit against him that ended up before the New York Court of Appeals.

From 2003 to 2005, Andrew Lavoot Bluestone, a New York attorney and law blogger (New York Attorney Malpractice Blog, http://blog.bluestonelawfirm.com) who represents plaintiffs in attorney malpractice matters, used fax machines to distribute an “Attorney Malpractice Report” to other attorneys. The reports included short essays regarding attorney malpractice issues and included his firm’s contact information and Web site addresses.

An attorney who had received a number of these reports commenced a lawsuit against Bluestone alleging viola- tions of Telephone Consumer Protection Act of (TCPA) 1991.

Bluestone was represented on appeal by attorney Scott Greenfield, author of the well-read blog Simple Justice (http://blog.simplejustice.us).

Last fall, the Third Department concluded that Bluestone’s faxes violated theTCPA:  “While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone’s services, which are for the specialized field of legal malpractice claims.” Stern v. Bluestone, 47 AD3d 576 (Third Dept. 2008).

However, last week, the New York State Court of Appeals over- turned the Third Department’s ruling concluding that the primary purpose of the faxed reports was informational rather than promotional:  “We conclude that Bluestone’s ‘Attorney Malpractice Report’ fits the FCC’s framework for an ‘informational message.’ … In
these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, ‘[a]n incidental advertisement’ of his services, which ‘does not convert the entire communication into an advertisement’ (Id.).” Stern v. Bluestone, 2009 NY Slip Op 04740 (2009).

This is an important decision for New York law bloggers, whose numbers have increased exponentially since I began blogging in 2005. Although the court’s
decision was limited to its interpretation of certain provisions of the TCPA, its rationale applies equally to the vast majority of law blogs.

The primary purpose of most law blogs is the dissemination of information. Like Bluestone’s “Attorney Malpractice Report,” blogs educate the reader about a
subject matter that is unrelated to the self-promotion of the blogger.

Certainly increased visibility of the blogger is a byproduct of the publication of a successful blog; and as a result of that visibility, new clients may follow.

But, that doesn’t mean that the primary purpose of the blog is the retention of clients.

In comparison, I think that most people would agree that the primary purpose of television and radio ads, billboard ads, professional Web sites and yellow page ads is the retention of clients. Blogs are different because the primary purpose of blogs
—sharing information —is separate and distinct from the self-promotion that is the essential element of most advertisements. 

Thankfully, the court’s decision in Stern v. Bluestone is a strong indication that the highest court in New York understands this distinction. The court understands that lawyers’ creative use of emerging Internet technologies is, in many instances, simply an extension of traditional networking activities, including speaking at a seminar, authoring an article in a legal publication, distributing a newsletter via e-mail or joining a committee at the local bar association.

It’s good to know that the highest court in New York “gets it.”

Do you?

Curfew Fails Abused Children


This week's Daily Record column is entitled "Curfew Fails Abused Children."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


The Rochester youth curfew was defeated once again last week when the New York State Court of Appeals issued its decision in Jiovon Anonymous v. City of Rochester.

At issue in the case was the legality of the youth curfew law, which became effective September 2006. The ordinance made it unlawful for those younger than 17 to be in a public place Sun- days through Thursdays between 11 p.m. and 5 a.m.,
and between 12 and 5 a.m. Fridays and Saturdays.

A minor accused of violating curfew could taken into custody immediately, and a conviction of the ordinance constituted a “violation,” as defined in the Penal Law,
punishable by a sentence of up to 15 days in jail.

The court limited its review to the constitutional issues raised on appeal and concluded that intermediate scrutiny, rather than strict scrutiny, was the appropriate level of analysis. Thus, in order to prevail, the City of Rochester was required to show that the curfew ordinance was “substantially related” to the achievement of “important” government interests.

The court applied the test to the constitutional claims of both the minors and parents affected by the law and determined that the Appellate Division, Fourth Department concluded correctly that Rochester’s curfew law was unconstitutional.

The court emphasized that the city failed to offer sufficient evidence to establish that the imposition of a curfew significantly reduced juvenile crime or victimization: “Without support from the City’s own empirical data, we conclude that the justifications made by the Mayor and the Chief of Police for the nighttime curfew, based primarily on opinions, are insufficient since they do not show a substantial relationship between the curfew and goals of reducing juvenile crime and victimization during nighttime hours.”

Similarly, the court concluded that the curfew law impermissibly interfered with parental due process rights, arguably interfering with stated goal of promoting parental supervision rather than supporting it: The “curfew ‘does not allow an adult to pre-approve even a specific activity after curfew hours unless a custodial adult actually accompanies the minor. Thus, parents cannot allow their children to function independently at night, which some parents may believe is part of the process of growing up’ (Nunez, 11 F3d at 952). Consequently, we conclude that the
challenged curfew is not substantially related to the stated goals of promoting parental supervision.”

The court then implied that the law would have had a better chance of passing constitutional muster if it had included a parental consent exception.

As I’ve noted in the past, my concern with youth curfews is that they effectively prevent children from escaping traumatic home environments. The inherent assumption behind curfews is that all guardians are caring, selfless and emotionally stable individuals.

Unfortunately, that is not always the case. For children with drug-addicted or abusive guardians, their homes are anything but safe. In many cases, the safest recourse for these children is to go elsewhere; sometimes the street simply is the safest alternative.

Arguably, curfew laws that include a parental consent exception at least provide a  neglected child with some flexibility, since it’s safe to assume that drug-addicted or otherwise neglectful parents are more than happy to have their children out of their sight.

The parental consent exception does little to protect the well being of abused children, however, since many abusers refuse to allow their child to leave the home. The home is the abuser’s playground and the child is their toy.

Any type of curfew law, then, is harmful to abused children. Such laws effectively imprison children in their abuser’s lair, actually encouraging —rather than preventing —victimization.

Any initiative that results in harm to a percentage of the population it is intended to protect is a failure.

Accordingly, rather than appealing the Court of Appeal’s decision or attempting to amend the curfew law, the city should simply abandon its failed initiative.

In New York, Privacy Trumps Technology


This week's Daily Record column is entitled "In New York, Privacy Trumps Technology."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Last week the New York Court of Appeals handed down its decision in People v. Weaver, a case I wrote about when oral arguments occurred in March.

At issue in Weaver was whether GPS tracking device evidence obtained by law enforcement without a warrant should have been suppressed.

The disputed evidence was obtained after a GPS tracking device was placed on the defendant’s car in the absence of a warrant and his movements were tracked for 65 days without his knowledge.  He was eventually arrested and charged with 2 counts of burglary, for which he was later convicted.

The Appellate Division, Third Department, concluded that the evidence obtained from the GPS device was admissible since the defendant had no expectation of privacy regarding movements that would have been visible via the naked eye.

In my earlier article, I vehemently disagreed with this conclusion, urging that the constitutional interpretation of our laws must conform to the ever-changing technological landscape, and that the failure to do so would render our laws and constitutional protections obsolete:

Technological advances are changing our lives in ways we never before imagined. New devices are being invented that enhance the ability of law enforcement officers to observe and follow our movements in ways not envisioned just 10 years ago. Who knows what capabilities law enforcement will have 20 years from now?…Judicial oversight of the use of advanced technologies is necessary to prevent baseless, invasive and limitless intrusions into the lives of law-abiding Americans.

I was pleased to learn that the New York Court of Appeals agreed, ruling that the evidence was inadmissible. 

The Court noted that GPS technology does not simply enhance the senses, but rather allows a “new technological perception” that could not otherwise be obtained without massive amounts of manpower, equipment and funding. 

Also of importance to the Court in reaching its determination was the vast amount of personal information that could be collected via constant GPS tracking of a person’s whereabouts, including the individual’s political, professional, religious and amorous associations.

Accordingly, the Court concluded that the evidence should have been suppressed pursuant to the New York State Constitution:

Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated.  Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.

Judge Smith, Judge Read and Judge Graffeo dissented.  In Judge Smith’s dissent, he asserted that the majority’s holding amounted to the constitutionally unsupportable proposition that certain technological devices were too advanced to be utilized by law enforcement in the absence of a warrant.

To an extent, I agree with Judge Smith—the majority’s holding encompasses the idea that the complexity and invasiveness of emerging technologies warrants judicial scrutiny of the methods utilized by law enforcement in order to prevent abuse. We part ways to the extent that he asserts that this proposition is unconstitutional.

Rather, the majority’s holding is simply an acknowledgement that the right to be free from unlawful governmental intrusions must not be permitted to be whittled away in the face of increasingly intrusive technologies. 

Simply put, in New York, the right to privacy should always remain paramount.

It is, for that very reason, that Weaver is one of those heartening decisions that makes me proud to be a New Yorker.  It is rare that a lone opinion is able to single-handedly restore my faith in the judicial process and the protections offered by our State Constitution.  People v. Weaver is just such a case. 

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. V

Checkmark Next up, questions from the audience and corresponding answers:

  • Unknown re: whether NY Court of Appeals will permit electronic filing
  • Per Judge Jones--inescapable fact of life that entire legal community moving towards electronic filing, technological advancements--but how quickly we'll get there is unknown
  • Per John Speranza--make a story out of your briefs--use creativity--make it interesting
  • Judge Pigott referenced a case out of Oneida County-People v. Pepe as an example of a great prosecution brief that told a great story
  • Per Judge Jones-avoid sequential date story telling--tell a story in the Statement of Facts and try to phrase it in away that more closely reflects the main issues in the case
  • Per John Speranza-flamboyant language/descriptions can liven up a brief
  • Question re: depraved indifference standards/decisions.  Per Judge Pigott, hard to predict where it's going. Difficult and evolving area of law-new cases with new factual scenarios come down and are increasingly difficult interpret. Per Judge Jones-part of the problem with the analysis is the inability to determine whether "depraved indifference" describes a mens rea or a set of circumstances.
  • How to make leave applications compelling. Put main issue up front and be concise and persuasive per Judge Jones. Don't clutter up strongest argument.  PerJudge Pigot-use a rifle not a shotgun and request phone conference in letter accompanying leave application if feel like it would help.

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. IV

Jones Next up, Hon. Theodore T. Jones:

  • It is an unfortunate fact of life that you must practice law defensively in the current day.
  • Judge Jones personally looks at all leave applications.
  • Places them in piles--meritless and potentially meritorious.
  • Disagrees with assertion that if application sits around with the court for too long, it's bad news. In his chambers-some meritorious cases actually take a while to process once flagged as possibly meritorious.
  • Judge Jones likes to speak with attorneys on phone, so may want to suggest a phone conference in your letter accompanying the leave application.
  • Most preservation issues are confronted and resolved in the Appellate Division, and if you lose on that basis at AD, it's an uphill battle.  Make best, persuasive argument regarding preservation at intermediate appellate court.

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. III

Pigott Next up, the Hon. Eugene Pigott, such a great speaker/presenter--main points:

  • Best advice to defense counsel-win early, so need to appeal;)
  • Begin all arguments with "Judge you're out of order, this whole court's out of order!" ;)
  • Timely preservation--important, but does it assist your opponent in making the case?
  • Preservation important to allow the trial judge chance to consider issue, but it's also important for the appellate courts.
  • Find way to get trial judge to allow you to get argument on the record, even where judge insists s/he "understands the argument."
  • Can be difficult to younger attorneys, no matter how knowledgeable, to convince a judge, so you have to assert yourself.
  • Judge Pigott reviews applications himself.
  • Jokingly claims he grants all 4th Department applications;)
  • A mistake ADA's tend to make is to fail to respond to leave applications--generally in other departments, of course, not the 4th Dept.
  • Lawyers work too hard and get too myopic--need to look at the big picture/statewide implications
  • Attach exhibits to leave applications if relevant
  • Attach stuff to appellate briefs as well, rather than requiring judges to thumb through record
  • Get out of "your lawyer suit"--be imaginative.
  • Follow rules-don't violate them-but don't be confined by them.

Live Blogging at NY Court of Appeals Criminal Justice CLE

Checkmark I'm at a Monroe County Bar Association seminar "The Court of Appeals Comes to the 3rd Annual Criminal Justice Forum". 

The Guest Speakers are Hon. Theodore T. Jones and Hon. Eugene F. Pigott, Jr., Associate Judges of the NYS Court of Appeals.

The moderator is acclaimed local criminal defense attorney John F. Speranza.

Panelists are Wendy E. Lehman, Special Assistant District Attorney and the illustrious Brian Shiffrin, First Assistant Public Defender, and New York criminal defense appellate attorney extraordinaire.

Co-chairs are Hon. Thomas M. Van Strydonck, Supreme Court, Adminstrative Judge, 7th Judicial District and Hon. Joseph D. Valentino, Supreme Court Justice.

More to follow...

New York Court of Appeals Leaves Question of Fact to the Jury

Gavel2 The title of this post might seem to state the obvious, but in my experience, trial level and appellate courts seem all too eager to conclude that summary judgment is appropriate even where arguable issues of fact exist.

In Frutchey v Felicita  2008 NY Slip Op 06745, however, the New York Court of Appeals got it right in my opinion.  At issue was whether the defendant's motion for summary judgment was properly denied by the trial court.

The underlying facts of this personal injury lawsuit were set forth in the Third Department's decision:

This action arises out of a three-car accident that occurred on Route 427 in the Town of Ashland, Chemung County. At the time of the accident, it was snowing and the roadway was covered with two to three inches of slush. Defendant Jacqueline Felicita was traveling eastbound when she lost control of her vehicle and entered the westbound lane of travel where she collided with a westbound vehicle operated by Linda Nichols. Defendant Michael V. DeLosa was operating a westbound vehicle owned by defendant Allen's Plumbing, Heating and Air Conditioning, Inc. (hereinafter collectively referred to as defendants) behind Nichols and, when he observed Felicita cross over into his lane of travel, he immediately turned into the eastbound lane in an effort to avoid the collision. Unfortunately, Felicita's vehicle caromed off Nichols' vehicle back into the eastbound lane and collided with the vehicle driven by DeLosa...At the time of the accident, plaintiff Damon Frutchey, an infant, was a passenger in the Felicita vehicle and was seriously injured.

The Third Department concluded that the reaction of the operator of the vehicle owned by Allen's Plumbing was reasonable as a matter of law:

While it ordinarily is a question of fact as to whether a driver's response to an emergency is reasonable, where, as here, the evidence establishes the reasonableness of the driver's response, summary judgment is appropriate.

However, the New York Court of Appeals held that there were issues of fact regarding that driver's potential negligence,.  Specifically, the court noted that issues remained as to whether:

(1) defendant DeLosa acted negligently in traveling at an excessive speed and in following too  closely to Nichols's vehicle, given the road and weather conditions and, (2) if so, such negligence was a proximate cause of the accident (see Herbert v Morgan Drive-A-Way, 202 AD2d 886, 888-889 [1994]...

There were absolutely issues of fact regarding DeLosa'a negligence, and to grant summary judgment in DeLosa's favor effectively decided those factual issues rather than letting the trier of fact make that determination.  Fortunately, the Court of Appeals corrected this error, and these factual issues will now be resolved by the appropriate party.

Certified Questions

Checkmark The Second Circuit recently certified a number of questions to the New York Court of Appeals.

First, in Amalfitano v. Rosenberg, Docket No. 06-2364-cv, the following questions were certified:

(1) Can a successful lawsuit for treble damages brought under N.Y. Jud. Law § 487 be based on an attempted but unsuccessful deceit upon a court by the defendant?
(2) In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?

And, in Israel v. Chabra, Docket Nos. 06-1467-cv(L), 06-1473-cv(CON), the following question was certified:

Does New York General Obligations Law § 15-301(1) abrogate, in the case of a contract where the second of two irreconcilable provisions requires that any modifications to the agreement be made in writing, the common law rule that where two contractual provisions are irreconcilable, the one appearing first in the contract is to be given effect rather than the one appearing subsequent?

Hat tip: Second Opinions blog.