PEOPLE v. BUSH (2026)

Defendant Zyquille Bush, charged with Unlawful Disclosure of an Intimate Image (Administrative Code of City of NY § 10-180 [b] [1]) ("Count One"), Aggravated Harassment in the Second Degree (PL § 240.30 [1] [a]) ("Count Two"), and Unlawful Dissemination or Publication of an Intimate Image (PL § 245.15 [1] [a] and [b]) ("Count Three"), moves to dismiss the accusatory instrument on the ground that it is facially insufficient. The People oppose the Defendant's motion. For the reasons set forth below, the Defendant's motion to dismiss is granted in part and denied in part.

I. Factual Allegations

According to the accusatory instrument, on October 8, 2025, at approximately 8:00 AM, inside 165 Broome Street, New York, New York, the complainant "received a number of text messages" from the Defendant. The messages stated:

I'll get u super violated. Game on bitch. Gon crash out on your whole family. u gon duck for the rest ur life. I have someone beat the tf out of u. I promise I'm ruin ur life. I'm not deleting shit.

The complainant recognized the telephone number from which the messages originated as the Defendant's number.

In addition, "during a multi-person video call with the Defendant and another individual" the complainant "observed the Defendant share a video." The video depicted the complainant "engaging in oral sexual conduct with the Defendant" (the "Explicit Video"). The complainant's face was visible in the Explicit Video. The complainant "did not give the Defendant permission or authority to take, possess, or disseminate" the Explicit Video. The accusatory instrument further alleges that the complainant "knew the Defendant took" the Explicit Video."¹ The Defendant's conduct caused the complainant to feel "annoyed, harassed, alarmed, threatened, and in fear for her physical safety."

II. Legal Standards

An information must contain factual allegations providing reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information, and non-hearsay factual allegations establishing, if true, that the defendant committed every element of the offense charged. (CPL 100.40 [1] [b]-[c]) This latter requirement, the "prima facie case requirement," is " 'not the same as the burden of proof beyond a reasonable doubt required at trial,' nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v Smalls, 26 NY3d 1064, 1066 [2015], quoting People v Kalin, 12 NY3d 225, 230 [2009]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

III. Analysis

(a) Unlawful Disclosure of an Intimate Image and Unlawful Dissemination or Publication of an Intimate Image

The Defendant argues that Count One, charging him with Unlawful Disclosure of an Intimate Image (Admin Code of City of NY § 10-180 [b] [1]), and Count Three, charging him with Unlawful Dissemination or Publication of an Intimate Image (PL § 245.15 [1] [a] and [b]), are facially insufficient because the information fails to allege that the Explicit Video was "disseminated" or "published."

Administrative Code § 10-180 [b] [1] provides, in relevant part:

It is unlawful for a covered recipient to disclose an intimate image, without the depicted individual's consent, with the intent to cause economic, physical or substantial emotional harm to such depicted individual, where such depicted individual is ․ identifiable to another individual ․ from the intimate image.

To "disclose" means to "disseminate," as defined in Penal Law § 250.40 (5), or "publish" as defined in Penal Law § 250.40 (6) (Administrative Code § 10-180 [a]).

Penal Law § 245.15 (1), as is relevant here, states:

A person is guilty of unlawful dissemination or publication of an intimate image when: (a) with intent to cause harm to the emotional, financial or physical welfare of another person, they intentionally disseminate or publish a still or video image depicting such other person with one or more intimate parts exposed or engaging in sexual conduct with another person ․ where such person may reasonably be identified from the still or video image ․ ; and (b) the actor knew or reasonably should have known that the person depicted did not consent to such dissemination or publication.

" 'Disseminate' means to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person" (PL § 250.40 [5]). "Publish," on the other hand, means to

(a) disseminate, as defined in [Penal Law § 250.40 [5]], with the intent that such image or images be disseminated to ten or more persons; or (b) disseminate with the intent that such images be sold by another person; or (c) post, present, display, exhibit, circulate, advertise or allow[ ] access, electronically or otherwise, so as to make an image or images available to the public; or (d) disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessible, electronically or otherwise and to make such image or images available to the public.2

(PL § 250.40 [6]).

The Defendant asserts that the information fails to allege that he "disseminated" or "published" the Explicit Video. He argues that the Defendant's allegedly "sharing" the Explicit Video with the complainant and a third individual via a video call does not constitute "dissemination" or "publication."

The People concede that the Defendant did not "publish" the Explicit Video, pursuant to Penal Law § 250.40 (6). The People contend, however, that the alleged sharing of the Explicit Video via the video call meets the statutory definition of "dissemination." The Court disagrees.

As an initial matter, the allegation that the Defendant "shared" the Explicit Video lacks specificity. In common online parlance, to "share" means to make content publicly available (see Merriam-Webster.com Dictionary, share [https://www.merriam-webster.com/dictionary/share] [definition "share": "to distribute on the internet" or "to post something on a social media platform"]). The People's motion papers, however, appear to ascribe to a different definition of "share." Specifically, the People indicate (but do not state outright) that the Defendant participated in a video call with the complainant and an unidentified third party, and that Defendant held a phone or other device up to the camera during the video call, permitting the complainant and third party to view the Explicit Video (see Merriam-Webster.com Dictionary, share [https://www.merriam-webster.com/dictionary/share] [definition "share": "to partake of, use, experience, occupy, or enjoy with others"]). Nowhere is the Defendant's actual alleged conduct spelled out, either in the People's motion papers, or more importantly, in the accusatory instrument. For that reason alone, Counts One and Three of the accusatory instrument are facially insufficient (see People v Thomas, 4 NY3d 143 [2005] [in determining facial sufficiency, courts may consider only allegations within "four corners" of accusatory instrument, along with any supporting depositions]).

Even were the information to allege that the Defendant played the Explicit Video on a device for the complainant and a third party during a video call, Counts One and Three would still be facially insufficient. To "disseminate" is to "give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person" (PL § 250.40 [5]). The gravamen of these words is that, as a result of the "dissemination," the recipient obtains possession or control over the item (see, e.g., People v Mowring, 64 Misc 3d 900 [Crim Ct, Richmond County 2019] [accusatory instrument sufficient for unlawful disclosure of an intimate image where defendant allegedly posted explicit video of himself and complainant to pornographic website without complainant's permission]; People v Christopher H., 87 Misc 3d 397 [Nassau Dist Ct, 1st Dist 2025] [accusatory instrument sufficiently alleged unlawful dissemination of an intimate image where defendant allegedly sent screenshots of video depicting complainant engaged in sexual activity via text message to complainant's mother and sister-in-law]).

Interpreting "disseminate" as requiring the recipient to obtain possession or control over the item accords with the legislative history of the statute. In enacting Unlawful Dissemination or Publication of an Intimate Image, the Legislature noted that

In an era of increased text messaging, social networking, and emailing, people in intimate relationships sometimes share pictures with each other, some of which may be sexually explicit in nature. However, recipients of these images do not always keep the images within the confines of an intimate relationship, and have the ability to widely disseminate the photos on the Internet. The unlawful dissemination and publication of such intimate images, also known as 'revenge porn' is often provided to Internet websites, and features photos sometimes accompanied by disparaging descriptions and identifying details, such as where the victims live and work, as well as links to their social network pages. Posting these photographs online is damaging to the reputations of the victims. These photographs have extensive negative effects, including destroying future intimate relationships and educational and employment opportunities. Victims are routinely threatened with sexual assault, stalked, harassed, or fired from jobs.

(Assembly Mem in Support, Bill Jacket, L2019, ch109). The Legislature sought to address the harm to the reputations, future intimate relationships, and educational and employment opportunities of individuals whose images have been "disseminated." In doing so, the Legislature targeted conduct such as providing explicit materials "to Internet websites" and "posting [such] photographs online" (see id.), or transmitting materials to others, who then have control over the images.

Comparing the definition of "disseminate" with the definition of "publish" is further instructive. "Publish" is defined as, inter alia, "post, present, display, exhibit, circulate, advertise or allow access, electronically or otherwise, so as to make an image or images available to the public" (PL § 250.70 [1] [c] [iii]). Holding the Explicit Video up to a camera for the complainant and another person to view could certainly constitute "display[ing] or exhibit[ing]" the Explicit Video (see id.). Yet the Legislature chose not to include the words "display" or "exhibit" within the definition of "disseminate." Instead, the Legislature used the words "display" and "exhibit" in the following subsection, within the definition of "publish," but only where the images are made available to the public (id.). The clear indication is thus that "disseminate," which does not have a "public" element, means something distinct from "display" or "exhibit" (see Rivers v. Birnbaum, 102 AD3d 26, 36 [2d Dept. 2012] ["where the legislature includes particular language in one section of a statute but omits it in another section of the same [statute], it is generally presumed that [the legislature] acts intentionally and purposely in the disparate inclusion or exclusion"]; see also People v Galindo, 38, NY3d 199, 203 [2022] ["the plain meaning of the statutory text is the best evidence of legislative intent"]; McKinney's Cons Laws, of NY, Book 1, Statutes § 74).

The People do not contend that the Defendant published the Explicit Video by presenting, displaying, or exhibiting it "so as to make [the Explicit Video] available to the public" (PL § 250.70 [1] [c] [iii]). Nor do the factual allegations establish any such "public" element: the Defendant allegedly showed the Explicit Video to the complainant, as well as one additional person, during a three-person video call  ³ (cf. People v Marvel B., 84 Misc 3d 430 [Crim Ct, Kings County 2024] [allegations that defendant sent complainant intimate images of herself insufficient to show unlawful dissemination]; People v McNamara, 78 NY2d 626, 633 [1991] ["Public place" element of public lewdness statute met "where the objective circumstances establish that lewd acts ․ can, and likely would, be seen by the casual passerby"]; PL § 240.00 [1] [for Penal Law Article 240.00 offenses against public order, defining "public place" as "a place to which the public or a substantial group of persons has access"]; Gugliotta v Wilson, 168 AD3d 817 [2d Dept 2019] [statements made at public municipal board meeting that were also broadcast over local television station satisfied element for defamation that a false statement tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace]).

On the facts presented here, the Court is thus unable to conclude that the alleged conduct constitutes "dissemination" of the Explicit Video. Accordingly, the Defendant's motion to dismiss Count One and Count Three as facially insufficient is granted.

(b) Aggravated Harassment in the Second Degree

An individual commits Aggravated Harassment in the Second Degree when, "with intent to harass another person," he communicates "a threat to cause physical harm to" that person, and knows or reasonably should know that the communication will cause that person "to reasonably fear harm to such person's physical safety" (PL § 240.30 [1] [a]).

The Defendant challenges the facial sufficiency of Count Two of the accusatory instrument on the ground that the alleged texts did not constitute a "threat to cause physical harm" to the complainant.

"Prohibitions of pure speech must be limited to communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct" (People v Marquan M., 24 NY3d 1, 7 [2014]). "True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual" (Virginia v Black, 538 US 343, 359 [2003]). A communication is a true threat if "an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury," whether or not the defendant "subjectively intended the communication to convey a true threat" (People v Hernandez, 7 Misc 3d 857, 861 [Crim Ct, NY County 2005]).

Applying these standards, the Defendant's alleged text messages amounted to true threats of injury. The Defendant's statement "I have someone beat the tf out of u" constitutes a "promise to cause severe physical harm" (see People v Rodriguez, 49 Misc 3d 867, 871 [Crim Ct, Bronx County 2015] [holding that "beating the fuck out of someone" is a "statement that a reasonable listener would consider a true threat of physical injury" and finding defendant's statement "I'm going to beat the fuck out of you" facially sufficient as true threat]; People v Evans, 21 Misc 3d 260, 261 [Crim Ct, Kings County 2008] [true threat where defendant told complainant he would get his "goons" to "beat her up"]; People v Taylor, 19 Misc 3d 1139[A] [Crim Ct, Kings County 2008] [true threat where defendant told complainant he was going to "fuck him up"]; People v Olivio, 6 Misc 3d 1034[A] [true threat where defendant told complainant "If I see you with another woman I'll fuck you up"]). This is particularly true in the context of the other alleged text messages, which included, inter alia, the phrases "I'll get you super violated," "Game on bitch," and "u gon duck for the rest of ur life." An ordinary, reasonable recipient, familiar with the context of these text messages, would interpret the messages as a true threat of injury.

Accordingly, the Defendant's motion to dismiss Count Two is denied.

This opinion constitutes the decision and order of the Court.

FOOTNOTES

1.   It is not clear from the information when the complainant learned that the Defendant had taken the Explicit Video: whether she knew of the Explicit Video's existence prior to the video call, or whether she learned of the Explicit Video during the video call.

2.   Defendant does not dispute that he is a "covered recipient," and the complainant a "depicted individual," under the statute (see Administrative Code § 10-180 [a]).

3.   The accusatory instrument does not describe the identity of this third individual, the individual's relationship to the parties, or the context in which the video was allegedly shown.

Kacie A. Lally, J.