People v. Kozlow

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. By decision and order of this Court dated July 25, 2006, the judgment was reversed (see People v Kozlow, 31 AD3d 788 [2006]). By opinion of the Court of Appeals dated April 26, 2007, the decision and order of this Court was reversed and the matter was remitted to this Court for further proceedings (see People v Kozlow, 8 NY3d 554 [2007]).

Ordered that the judgment is affirmed.

The 42-year-old defendant had multiple communications via e-mail with “JohnlnYonkers,” an individual that the defendant believed to be a 14-year-old boy. The two initially met in an Internet chat room. In fact, “JohnlnYonkers” was an undercover investigator employed by the High Technology Crimes Bureau of the Westchester County District Attorney’s Office, which investigates crimes against children online.

The defendant described in various e-mail communications, the sexual acts he would perform upon “JohnlnYonkers.” The communications included those of April 14, April 23, May 13, and May 24, 2004. On April 7, 2004 the defendant, presumably the older of the two Internet correspondents, offered to teach “JohnlnYonkers,” presumably the younger of the two, about specific sexual behavior. During the communication of May 13, 2004 the defendant inquired whether “JohnlnYonkers” was a police officer, and the following day transmitted to “JohnlnYonkers” a train schedule so that the two could meet in New York City. While the defendant stated on various occasions that his initial meeting with “JohnlnYonkers” would be limited to conversation, the defendant also indicated at other times that, after the initial meeting, he and “JohnlnYonkers” would “take it from there,” get a room, and thereafter see one another as much as “JohnlnYonkers” wanted.

Ultimately, on June 28, 2004 the defendant was arrested after walking to the pre-arranged location at Grand Central Terminal in Manhattan at the approximate time that “JohnlnYonkers” was scheduled to arrive for a first meeting.

Viewing the evidence in the light most favorable to the People, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt of each count of attempted disseminating indecent material to minors in the first degree. The defendant’s e-mails knowingly communicated sexual depictions, by which he importuned, invited, or induced sexual contact with someone that he believed to be a minor (see Penal Law § 235.22).

The defendant maintains that the evidence shows that he merely intended to engage in an online fantasy, and not to lure a minor into sexual contact. However, given the defendant’s online descriptions of the physical sexual contact he would perform with “JohnlnYonkers,” his transmittal of a train schedule, his effort to meet “JohnlnYonkers” at a designated date and time at Grand Central Terminal, and other evidence contained in the electronic communications, we are satisfied that the verdict was not against the weight of the evidence. The resolution of issues of credibility is primarily a matter to be determined by the trier of fact, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Our dissenting colleague, in reviewing the weight of the evidence, overlooks the predatory seduction evidenced by the defendant’s ongoing pattern of statements and activities. The weight of the objective evidence is such that the trier of fact could resolve conflicting inferences against those of the defendant’s arguments that are based upon self-serving assertions as to his subjective intent (see People v Rochester, 168 AD2d 519, 520 [1990]).

Our dissenting colleague argues that the People impermissibly altered the theory of the prosecution during summation from importuning, inviting, or inducing sexual “contact,” as alleged in the indictment, to sexual “conduct” for his benefit, which was not alleged in the indictment, and that the trial court, in overruling the defendant’s objection on this ground, did not expressly disavow a “conduct” theory upon finding the defendant guilty. However, a court is presumed in a nonjury trial, as here, to have considered only competent evidence in reaching its verdict (see People v Sims, 127 AD2d 805, 806 [1987]). Indeed, “[a] Judge is deemed uniquely capable of distinguishing those issues properly presented to him [or her] from those not” (People v Reyes, 116 AD2d 602, 603 [1986]) so as to warrant this presumption (see People v Marino, 21 AD3d 430, 432 [2005], cert denied — US —, 126 S Ct 2930 [2006]) [no danger that conviction rested upon prosecutor’s fallacious summation]. This is not a case such as People v Haines (139 AD2d 591 [1988]), where the trial court not only overruled an objection, but also made improper statements reinforcing the prosecutor’s comments, nor is this a case where the verdict necessarily relies upon evidence unrelated to the specific allegations of the indictment, as in People v Rodriguez (164 AD2d 832 [1990]). To the contrary, the trial court in this instance expressly stated that it was familiar with and bound by the contents of the case file and would “make a decision based upon what is charged in [sic] the evidence submitted in the trial” (emphasis added) (see People v Mitchell S., 151 Misc 2d 208, 212 [1991]). Since the trial court expressly bound itself to the indictment in the case file and to the evidence relating to the charges, any error in overruling the defendant’s objection is of no consequence.

The defendant’s remaining contentions are without merit. Rivera, Krausman and Dillon, JJ., concur.