What is Minors in the First Degree in NYC?
Disseminating Indecent Material to Minors in the First Degree is a class D felony in New York. A conviction of the crime carries a maximum sentence of 7 years in prison if a person does not have a prior felony conviction, followed by a maximum term of 10 years of post-release supervision.
If a person is convicted of Disseminating Indecent Material to Minors in the First Degree, then he or she is required to register as a Sex Offender under SORA or the Sex Offenders Registration Act. However, it is possible to avoid a criminal conviction and Sex Offender registration with New York’s Teen Sexting Diversion Program, which is explained below.
If you are facing Disseminating Indecent Materials to Minors charges in NYC, contact us today for a free, confidential consultation.
A person will be charged with Disseminating Indecent Material to Minors in the First Degree, Penal Law Section 235.22, when:
- Knowing the character and content of the communication which, in whole or in part, depicts or describes, either in words or images Actual or Simulated Nudity, Sexual Conduct or Sado-Masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor; and
- By means of such communication he importunes, invites or induces a minor to engage in Sexual Intercourse, Oral Sexual Conduct or Anal Sexual Conduct, or Sexual Contact with him, or to engage in a Sexual Performance, Obscene Sexual Performance, or Sexual Conduct for his benefit.
Disseminating Indecent Material to Minors in the First Degree has 2 prongs. The first prong, which involves an electronic communication of indecent material to a person who is less than 17 years old, is 1 type of Disseminating Indecent Material to Minors in the Second Degree. However, that allegation was ruled as violating the U.S. Constitution. There are federal laws that apply to electronic communication of indecent material to a person who is less than 17 years old with severe penalties.
The second prong of Disseminating Indecent Material to Minors in the First Degree requires an invitation or inducement to engage in Sexual Activity or a Sexual Performance. For a person to be charged with the First Degree crime, there must be allegations that satisfy both prongs. However, as explained below a person can be charged and convicted of an attempt to commit the crime of Disseminating Indecent Material to Minors in the First Degree even if no Sexual Conduct occurs or no Sexual Performance is sent or received.
Unlike, the provision of the Second Degree crime that was found to be unconstitutional, the first prong of the First Degree crime without anything more, the First Degree crime was held to be constitutional. In 2000, People v. Foley held that additional luring requirement in the First Degree crime, the intentional transmission of sexually graphic images to minors to lure them into sexual activity, excluded any legitimate commerce. Thus, unlike the Second Degree provision that was struck down, the First Degree crime does not violate the Commerce Clause.
Disseminating Indecent Material to Minors in the First Degree Explained
The terms in the first prong of Disseminating Indecent Material to Minors in the First Degree are explained under the Second Degree crime. The terms in the second prong of the crime have certain definitions. The 6 terms in the second prong each have specific definitions: Sexual Intercourse, Oral Sexual Conduct, Anal Sexual Conduct, Sexual Contact, Sexual Performance and Obscene Sexual Performance.
- First, Sexual Intercourse is defined in Penal Law Section 130.00(1), and the term has its common meaning and it includes the slightest penetration.
- Second, Oral Sexual Conduct, defined in Penal Law Section 130.00(2)(a) means “conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.
- Third, Anal Sexual Conduct, Penal Law Section 130.00(2)(b) means, “conduct between persons consisting of contact between the penis and anus.”
- Fourth, Sexual Contact, Penal Law Section 130.00(3) is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.”
- Fifth, Sexual Performance, which is defined in Penal Law Section 263.00(1), means “any performance or part thereof which, for the purposes of [the crime of Possessing a Sexual Performance by a Child], includes sexual conduct by a child less than 16 years of age or, for purposes of [the crimes of Use of a Child in a Sexual Performance or Promoting a Sexual Performance by a Child], includes sexual conduct by a child less than 17 years of age.”
- Sixth, Obscene Sexual Performance, Penal Law Section 263.00(2) is similar to Sexual Performance except it includes the term obscene, which in the main means any material that depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, criminal sexual act, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals.”
New York Attempted Indecent Material to Minors in the First Degree
Often an Indecent Material to Minors in the First Degree charge does not include a communication, such as a photograph or a video, that contains nudity or a sexual image. In such cases, a person is charged with an Attempt to commit Indecent Material to Minors in the First Degree under Penal Law Sections 110 and 235.22.
In 2007, People v. Koslow held that Indecent Material to Minors in the First Degree, which includes that requirement that the “communication which, in whole or in part, depicts or describes, either in words or images Actual or Simulated Nudity, Sexual Conduct” covers an allegation where an image is not exchanged. The Court held that “a sexually explicit text may be used as a means of seduction just as effectively as a sexual image.” Of course, there also must be an allegation regarding the second prong of the crime, that a person used the depiction of sexually explicit material to lure a person who is less than 17 years old to engage in a form of Sexual Conduct or Sexual Performance.
The defendant in People v. Koslow was a 42-year old man, Koslow, who believed he was communicating with a 14 year old in an Internet chat room. In fact, the 14 year old was an undercover police officer. The two exchanged photographs where they were both fully clothed. Koslow then described via instant message sex act he enjoyed, sexual encounters the two might have. However, no images of nudity or sex were exchanged between the two.
One month after they connected, they made plans to meet “just going to talk,” but he also mentioned that he would “get a room” if they decided to have sex, even describing particular sexual acts. Koslow canceled the plans, but a month later than made a second plan to meet inside Grand Central Station. Koslow was arrested inside of Grand Central Station.
To repeat, Koslow did not send a sexual image. Neither did he receive any sexual image. The theory of the prosecution was that Koslow that there was evidence that Koslow acts met the 2 prongs of Disseminating Indecent Material to Minors in the First Degree charges. First, Koslow knew the character and content of the instant messages that depicted or described Sexual Conduct. Second, that, by arranging a meeting, used the depictions or descriptions of sexual acts to lure a minor into Sexual Conduct.
Whether or not a person should be charged with the crime of an Attempt at Disseminating Indecent Material to Minors in the First Degree without ever exchanging an image or movie that contains Nudity or Sexual Conduct is unique to every case. The strength of a defense to such a charge often depends on the specific words exchange between two people.
Defenses to Disseminating Indecent Material to Minors in the First Degree in New York
There is a crucial defense to Disseminating Indecent Material to Minors in the First Degree charges involving an attempt to learn the age of the alleged minor. Under Penal Law Section 235.23(3), it is a defense to the crime if a person charged “made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of actions taken by the minor.”
That means that it is an absolute defense if a person charged with Disseminating Indecent Material to Minors in the First Degree made a reasonable effort to learn the true age of a person who turned out to be less than 17 years old. What is a reasonable effort will be different in each case. In addition, the actions of the minor must prevent the person charged with learning the true age.
The typical case when such a defense applies is when the minor lies about their age through an oral misrepresentation, a profile on a dating app like Tinder, Bumble or Grindr that displays a fake age or by sending a photo of fake identification. The reasonable effort to learn the true age of the minor must occur before either any electronic communication of Sexual Content or a depiction or description of Sexual Conduct or before any attempt to invite or induce the minor into Sexual Conduct or a Sexual Performance.
In other words, to be convicted of Disseminating Indecent Material to Minors in the First Degree the prosecutor must prove beyond a reasonable doubt all of the elements of the crime and that
The person charged did not make a reasonable effort to ascertain the true age of the minor and that in the effort to ascertain the true age of the minor, the person charged was not prevented from ascertaining the age of the minor as a result of actions taken by the minor.
New York Teen Sexting Diversion for Disseminating Indecent Material to Minors
New York created a Teen Sexting Diversion Program in 2012. New York’s Teen Sexting Diversion Program was created in response to the rise of teenage access to smartphones and social media applications. Under the Cybercrime Youth Rescue Act, teenagers who are eligible for and who successfully complete the program have the case dismissed and sealed. This is highly preferable to the possibility of a permanent felony criminal record and required registration as a Sex Offender. If a teenager is ordered to Teen Sexting Diversion then the case is dismissed and sealed 6 months after completion of an educational program.
Eligibility for New York’s Teen Sexting Diversion Program is limited to people who are less than 20 years old. If the person charged is less than 20 years old, then he or she is not eligible for the program. Next, the person charged and the minor cannot be more than 5 years apart in their ages. The maximum age differences allowed under Teen Sexting Diversion are
- If the complaining witness is 11 or older, then the person charged cannot be older than 16
- If the complaining witness is 12 or older, then the person charged cannot be older than 17
- If the complaining witness is 13 or older, then the person charged cannot be older than 18
- If the complaining witness is 14 or older, then the person charged cannot be older than 19
- If the complaining witness is 15 or older, then the person charged cannot be older than 19
- If the complaining witness is 16 or older, then the person charged cannot be older than 19
To repeat, a person who successfully completes New York’s Teen Sexting Diversion program has the case dismissed and sealed 6 months after completion of a required education program. Teen Sexting Diversion is a preferable option over felony prosecution and the possibility of a felony conviction.
New York Disseminating Indecent Material to Minors in First Degree Sentencing
Disseminating Indecent Material to Minors in the First Degree is a class D felony. In addition, the crime is classified as a sexually motivated felony, which limits the sentencing options. A first-time felony offender faces a minimum of 2 years and a maximum of 7 years in prison followed by between 3 and 10 years of post-release supervision.
A Judge can also sentence a person to 1 year in prison if there is a finding that a longer sentence would be unduly harsh considering the allegations and the character of the person charged. Finally, a person can be sentenced to up to 5 years of probation if a Judge finds that prison is not necessary to protect the public, the Department of Probation can administer therapy and that probation is a just result.
Hiring a New York City Disseminating Indecent Material to Minors Lawyer
The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York criminal defense attorney is crucial in achieving the best possible outcome of your Disseminating Indecent Material to Minors case.
The best New York City lawyer for Sex Crimes is experienced, aggressive and knowledgeable. As a former prosecutor in New York, I have the experience and knowledge from both prosecuting Sex Crimes on behalf of victims and complaining witnesses, and aggressively defending people against Sex Crimes charges in New York.
Contact The Law Firm of Andrew M. Stengel
Contact us via the live chat below, through our contact form here, or call us at (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.
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