PEOPLE v. DASHEVSKY (2008)

Appeal by the People from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 13, 2007, which granted the defendant's motion to dismiss Suffolk County Superior Court Information No. 1605-06, charging him with attempted disseminating indecent material to minors in the first degree, attempted rape in the second degree, and attempted criminal sexual act in the second degree, and, in effect, to withdraw his plea of guilty.

ORDERED that the appeal from so much of the order as granted that branch of the defendant's motion which was, in effect, to withdraw his plea of guilty is dismissed;  and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, that branch of the defendant's motion which was to dismiss Suffolk County Superior Court Information No. 1605-06 is denied, Suffolk County Superior Court Information No. 1605-06 is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

On June 15, 2006, the defendant pleaded guilty to the first count of Suffolk County Superior Court Information No. 1605-06, attempted disseminating indecent material to minors in the first degree, in full satisfaction of that Superior Court Information.   Prior to sentencing, the defendant moved to dismiss that Superior Court Information in light of this Court's decision and order in People v. Kozlow, 31 A.D.3d 788, 821 N.Y.S.2d 212, on the ground that his allocution was factually insufficient to establish that his Internet communications with an undercover police officer, whom he believed to be a minor, “depict[ed]” sexual conduct within the meaning of Penal Law § 235.22(1), since the Internet communications contained no visual sexual images (see Penal Law § 235.22[1] ).   The Court of Appeals subsequently reversed that decision and order, and held that the word “depict” is broad enough in meaning to cover a wide range of indecent materials, not merely visual or pictorial representations (see People v. Kozlow, 8 N.Y.3d 554, 560, 838 N.Y.S.2d 800, 870 N.E.2d 118).

The People contend that in light of the Court of Appeals decision in Kozlow, the Superior Court Information and the defendant's plea of guilty should be reinstated.   While this Court lacks the authority to reinstate the plea, it may reinstate the Superior Court Information (see People v. Thompson, 202 A.D.2d 456, 609 N.Y.S.2d 620;  People v. Reap, 68 A.D.2d 964, 965, 414 N.Y.S.2d 775).   Accordingly, we reverse so much of the order as granted that branch of the defendant's motion which was to dismiss Suffolk County Superior Court Information No. 1605-06 and reinstate the Superior Court Information.