PEOPLE v. KOZLOW (2006)

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.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the County Court, Westchester County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The evidence was legally insufficient to support the defendant's convictions of attempted disseminating indecent material to minors in the first degree (see Penal Law §§ 110.00, 235.22).   The People failed to establish that the defendant's 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 they contained no visual, “sexual images” (People v. Foley, 94 N.Y.2d 668, 681, 709 N.Y.S.2d 467, 731 N.E.2d 123, cert. denied 531 U.S. 875, 121 S.Ct. 181, 148 L.Ed.2d 124;  see Penal Law § 235.21[1], [2] ).   Accordingly, the judgment must be reversed and the indictment dismissed.

In light of this determination, it is unnecessary to address the parties' remaining contentions.