What is Disseminating Indecent Material to Minors in the Second Degree in NYC?
In New York, Disseminating Indecent Material to Minors in the Second Degree, Penal Law Section 235.21 is a class E felony. The crime has a maximum punishment of 1 1/3 to 4 years if a person does not have a prior felony conviction. Unlike the First Degree crime, registration as a Sex Offender is not required for a conviction.
Disseminating Indecent Material to Minors in the Second Degree is charged is the first 2 types of allegations below, the third allegation, which involves electronic communication, was ruled unconstitutional and cannot be enforced in New York.
If you are facing Disseminating Indecent Materials to Minors charges in New York, contact us today for a free, confidential consultation.
A person is guilty of Disseminating Indecent Material to Minors in the Second Degree when:
- With knowledge of its character and content, he sells or loans to a minor for monetary consideration:
- Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts Nudity, Sexual Conduct or Sado-Masochistic abuse and which is harmful to minors; or
- Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (a) hereof, or explicit and detailed verbal descriptions or narrative accounts of Sexual Excitement, Sexual Conduct or Sado-Masochistic abuse and which, taken as a whole, is harmful to minors; or
- Knowing the character and content of a motion picture, show or other presentation which, in whole or in part, depicts Nudity, Sexual Conduct or Sado-Masochistic abuse, and which is harmful to minors, he:
- Exhibits such motion picture, show or other presentation to a minor for a monetary consideration;
- Sells to a minor an admission ticket or pass to premises whereon there is exhibited or to be exhibited such motion picture, show or other presentation; or
- Admits a minor for monetary consideration to premises whereon there is exhibited or to be exhibited such motion picture show or other presentation; or
- Knowing the character and content of the communication which, in whole or in part, depicts 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.
One Part of Disseminating Indecent Material to Minors in the Second Degree Struck Down
In 1997, a federal court in New York ruled that the third type of allegation of Disseminating Indecent Material to Minors in the Second Degree but left the first 2 types of allegation intact.
In American Libraries Ass’n v. Pataki, the Court held that allegation of using any computer communication system to send or transfer indecent material violated the commerce clause of the U.S. Constitution. The Court held that “The nature of the Internet makes it impossible to restrict the effects of the New York Act to conduct occurring within New York. . . Even if the Act were not a per se violation of the Commerce Clause by virtue of its extraterritorial effects, the Act would nonetheless be an invalid indirect regulation of interstate commerce, because the burdens it imposes on interstate commerce are excessive in relation to the local benefits it confers.”
Therefore a person cannot be charged with Penal Law Section 235.21(3). However, even if rarely charged, the first 2 types of Disseminating Indecent Material to Minors in the Second Degree charges are enforceable.
Federal Sexting Laws and Disseminating Indecent Material to Minors in the Second Degree
Even if a person cannot be charged with electronically communicating inducement material to a minor under New York State, federal laws remain. Two federal laws that are similar to the New York law that was struck down are charges of Transfer of Obscene Material to Minors and Sexual Exploitation of Children. Under federal law, a minor is defined as any person who is less than 18 years old. Although some federal crimes apply when the minor is less than 16 years old.
First, under federal law 18 U.S.C. § 1470, Transfer of Obscene Material to Minors, “Whoever, using the mail or any facility or means of interstate or foreign commerce, knowingly transfers obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years, or attempts to do so, shall be fined under this title.” A person can be sentenced to up to 10 years in prison for a first felony conviction.
Second, under federal law 18 U.S.C. § 2251, Sexual Exploitation of Children, a person who attempts to induce, persuade or entice a minor to engage in a sexual act for the purpose of making a video, picture or other image. For Sexual Exploitation of Children, minor is defined as any person under the age of 18. The crime carries a mandatory minimum sentence of 15 years and a maximum is 30 years in prison.
Sentencing for Disseminating Indecent Material to Minors in Second Degree
As a class E felony, a conviction of a Disseminating Indecent Material to Minors in the Second Degree charge carries a maximum of 1 1/3 to 4 years and a minimum of 1 to 3 years in prison for a first felony conviction. Registration as a Sex Offender is not required under the Sex Offenders Registration Act. Prison is not mandatory for a Disseminating Indecent Material to Minors in the Second Degree conviction and there are sentencing options involving a lesser jail sentence.
A Judge can also impose a sentence of 1 year in jail or a split sentence of a maximum of 6 months in jail and a 3-year conditional discharge or 10 years of probation. Finally, a Judge can also sentence a person conviction of the crime to probation for 10 years or conditional discharge for 3 years.
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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