Keith D. Dayton, Public Defender of Cortland County (Patrick A. Perfetti of counsel), for defendant.
Robert T. Jewett, District Attorney of Cortland County (Wendy Franklin of counsel), for plaintiff.
Emerson R. Avery, Jr., J.
The above-named defendant has been charged by a Grand Jury of this county with 19 counts of one form or another of
mistreatment of her own six-year-old daughter, alleged to have occurred on one day in September of last year.T he first five counts (each count based on one of five photographs) charge the defendant with use of a child in a sexual performance (Penal Law § 263.05); the next five counts, based on the same five photographs, charge the defendant with promoting a sexual performance by a child (Penal Law § 263.15); the final group of five (counts 11 through 15), based on defendant's possession of the negatives of the same five photographs, charge the defendant with possessing a sexual performance by a child (Penal Law § 263.16). Count 16 charges sexual abuse in the first degree, and the final three counts charge endangering the welfare of three children (the girl being photographed and her two siblings, who were present at the time).
Defendant moves, inter alia, for in camera inspection of the Grand Jury minutes, for disclosure of the minutes and of the prosecution's charge, and for dismissal or reduction of the indictment or the counts thereof. In particular, defense counsel questions the adequacy of the People's charge concerning sexual performance, and questions whether there was any evidence in support of what he assumes was accomplice testimony. The prosecution has not opposed inspection of the Grand Jury minutes, and this branch of the motion is therefore granted. The Court has read the minutes, and now turns to the remaining branches of defendant's motion.
The Court's review of the transcript discloses no novel points of law or other reason making release of the minutes " necessary to assist the court in making its determination on the motion" (CPL 210.30 ); defendant's request for such disclosure is therefore denied.
The prosecutor presenting the case to the Grand Jury commendably organized and identified the charges so that the Grand Jury could vote on each of the three charges (use, promoting and possessing a child's sexual performance) as to each of five individual photographs (exhibits 5 through 9) and negatives (exhibits 11 through 15). All the photographs are of the defendant's own six-year-old daughter alone (with one exception), are grainy, out of focus, and contain no unusual clothing, props or stage dressing; according to the defendant's statement (exhibit 4), they were impromptu and initiated in fun by the girl herself. One photo (exhibit 8) includes the defendant's hand. One photo (exhibit 9) depicts the girl's bare
stomach/chest, three (exhibits 5, 6, and 8) show her bare buttocks, and one (exhibit 7) is a frontal view from sternum to the floor, which shows the girl's shirt pulled up and her shorts down around her knees.
All the crimes charged in the first 15 counts include as an element " sexual conduct," which is defined as:
" actual or simulated sexual intercourse, deviate sexual intercourse, sexual beastiality [sic], masturbation, sado-masochistic abuse, or lewd exhibition of ...