Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Baker

County Court, Dutchess County

May 12, 2017

The People of the State of New York, Plaintiff,
v.
Joseph Baker, Defendant.

          WILLIAM V. GRADY, ESQ., Dutchess County District Attorney Melissa Pasquale, Esq. THOMAS ANGELL, ESQ. Dutchess County Public Defender, Hassel Nunez, Esq.

          PETER M. FORMAN, J.

         Defendant stands accused by the Grand Jury of the County of Dutchess of four counts of Promoting a Sexual Performance By a Child, a Class D Felony, in violation of §263.15 of the Penal Law; four counts of Possessing a Sexual Performance By a Child, a Class E Felony, in violation of §263.16 of the Penal Law, and one count of Endangering the Welfare of a Child, a Class A Misdemeanor, in violation of §260.10 of the Penal Law.

         By Decision and Order dated April 11, 2017, this Court provided counsel with an opportunity to be heard as to whether the Promoting a Sexual Performance By a Child counts of the indictment should be dismissed. Specifically, counsel were directed to address the question of whether Defendant can be charged with procuring lewd images of a 13-year-old girl based upon the electronic communications that he exchanged with her. Counsel were also directed to address the question of whether New York has geographic jurisdiction where the evidence presented to the Grand Jury demonstrates that the 13-year-old girl was in New York when she sent the lewd images to Defendant, and that he was in Tennessee when he received those images.

         The Decision and Order also provided counsel with an opportunity to be heard as to whether New York has geographic jurisdiction over the eighth count of the indictment, which accuses Defendant of Possessing a Sexual Performance By a Child. Specifically, the Bill of Particulars alleges that Defendant possessed this image on August 21, 2015. However, the evidence presented to the Grand Jury demonstrates that Defendant was in Tennessee on that date, and that he did not arrive in New York until September 23, 2015.

         Finally, the Decision and Order provided counsel with an opportunity to be heard as to whether New York has geographic jurisdiction over the ninth count of the indictment, which accuses Defendant of Endangering the Welfare of a Child between March of 2015 and October 7, 2015. Specifically, the evidence presented to the Grand Jury demonstrates that Defendant was in Tennessee during most of that time, and that he did not arrive in New York until September 23, 2015.

         The Court heard oral argument from counsel during a May 3, 2017 hearing, and has reviewed and consider their supplemental written submissions. For the reasons stated herein, the Court finds that the evidence presented to the Grand Jury was legally sufficient to establish that Defendant committed the crimes charged in the indictment. The Court also finds that the evidence presented to the Grand Jury was legally sufficient to establish that New York has geographic jurisdiction over those crimes.

         COUNTS ONE, THREE, FIVE AND SEVEN

         A. Procurement

         A person is guilty of Promoting a Sexual Performance By a Child "when, knowing the character thereof, he produces, directs, or promotes any performance which includes sexual conduct by a child less than seventeen years old." [Penal Law §263.15]. For purposes of this statute, the term "promote" means "to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit or advertise, or offer or agree to do the same." [Penal Law §263.00(5)].

         "Although the term 'procure' is not defined in the Penal Law, the leading definition commonly assigned to the term is 'to get possession of, obtain, acquire... to get possession of by particular care or effort." [ People v. Keyes, 75 N.Y.2d 343, 348 (1990)]. Therefore, for purposes of Penal Law §263.15, the term "procure" includes "the acquisition of child pornography, whether for personal consumption or for distribution to others." [ id.]

         The indictment charges Defendant with procuring three photos and one video that lewdly exhibit the vagina of a 13-year-old girl. The evidence presented to the Grand Jury demonstrates that Defendant received these images from the 13-year-old girl who is depicted in them. While there is no evidence that Defendant expressly requested that the 13-year-old girl send him these images, there is also no evidence that Defendant discouraged the 13-year-old girl from sending him these images once he began to receive them.

         The Court of Appeals has ruled that merely viewing child pornography is insufficient to support a conviction for either Promoting a Sexual Performance By a Child [ People v. Kent, 19 N.Y.3d 290 (2012)]. Specifically, the Court held that "the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control... To hold otherwise would extend the reach of article 263 to conduct - viewing - that our Legislature has not deemed criminal." [ id. at 301, 303].

         The evidence presented to the Grand Jury demonstrates that the 39-year-old Defendant and the 13-year-old girl frequently engaged in electronic communications. During those communications, Defendant repeatedly professed his love for the 13-year-old girl, and actively promoted her belief that they were in a romantic relationship. For instance, when the 13-year-old girl was feeling sick, Defendant sent her a message stating "Here's some kisses to help you feel better." Defendant also called the 13-year-old girl "beautiful, " repeatedly professed his love for her, and referred to her as though she had taken his last name in marriage. [1]

         The evidence also demonstrates that, at the same time that these flirtatious messages were being exchanged, the Defendant and the 13-year-old girl also exchanged lewd messages that used code words for her vagina ("Joy") and Defendant's penis ("N-Crease"). For instance, the following exchange occurred on August 26, 2015:

13-year-old girl: "Joy is wet. How is N-Crease? Is he hard?"
Defendant: "I love you."
13-year-old girl: "Not Joy?"
Defendant: "LOL"
13-year-old girl: "It's OK, baby, She's clean."
Defendant: "Oh yeah?"
13-year-old girl: "Yeah.
13-year-old girl: "Look at her, she's as good as new. [image attached]. See baby, she's okay. Call me when you can. I ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.