WESTCHESTER COUNTY: Ruling Goes Against Jeanine Piro

Kozlow Decision from Appellate Division - 2nd Department.

People v Kozlow
2006 NY Slip Op 05995
Decided on July 25, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.Decided on July 25, 2006.

SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT STEPHEN G. CRANE, J.P. GABRIEL M. KRAUSMAN REINALDO E. RIVERA MARK C. DILLON, JJ. 2005-07492 DECISION & ORDER

[*1]The People, etc., respondent, v Jeffrey Kozlow, appellant. (Ind. No. 04-01042) Stillman & Friedman, P.C., New York, N.Y. (Nathaniel Z. Marmur of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Robert K. Sauer and Diane E. Selker of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Alessandro, J.), rendered July 27, 2005, convicting him of attempted disseminating indecent material to minors in the first degree (five counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the County Court, Westchester County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The evidence was legally insufficient to support the defendant's convictions of attempted disseminating indecent material to minors in the first degree (see Penal Law §§ 110.00, 235.22). The People failed to establish that the defendant's internet communications with an undercover police officer whom he believed to be a minor "depict[ed]" sexual conduct within the meaning of Penal Law § 235.22(1), since they contained no visual, "sexual images" (People v Foley, 94 NY2d 668, 681, cert denied 531 US 875; see Penal Law § 235.21[1], [2]). Accordingly, the judgment must be reversed and the indictment dismissed.

In light of this determination, it is unnecessary to address the parties' remaining contentions. [*2]CRANE, J.P., KRAUSMAN, RIVERA and DILLON, JJ., concur.

ENTER:
James Edward Pelzer
Clerk of the Court.