         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1263
KA 12-00109
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARLEK E. HOLMES, DEFENDANT-APPELLANT.


MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered December 5, 2011. The judgment convicted
defendant, upon his plea of guilty, of failure to register change of
address, failure to personally verify his address, disseminating
indecent material to a minor in the first degree and endangering the
welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of, inter alia, disseminating indecent material
to minors in the first degree (Penal Law § 235.22). Defendant
contends that the indictment is jurisdictionally defective because it
accuses him of acts, i.e., sending sexually explicit text messages to
a 16-year-old girl, that do not constitute a crime. According to
defendant, the act of sending telephone text messages does not involve
the use of “any computer communication system allowing the input,
output, examination or transfer, of computer data or computer programs
from one computer to another” as required by Penal Law § 235.22 (1).

     As a preliminary matter, we agree with defendant that he was not
required to preserve his contention for our review, nor is it waived
as a result of his guilty plea, inasmuch as it concerns a nonwaivable
jurisdictional defect (see People v Iannone, 45 NY2d 589, 600-601; cf.
People v Cox, 275 AD2d 924, 924-925, lv denied 95 NY2d 962; see also
People v Case, 42 NY2d 98, 99). We conclude, however, that
defendant’s contention lacks merit. “The common-law policy that a
penal provision should be strictly construed has been expressly
abolished by the Legislature” (People v Teicher, 52 NY2d 638, 647; see
Penal Law § 5.00). Instead, “penal statutes are to be interpreted
‘according to the fair import of their terms to promote justice and
effect the objects of the law’ . . . and are not to be given
                                 -2-                          1263
                                                         KA 12-00109

hypertechnical or strained interpretations” (Teicher, 52 NY2d at 647,
quoting § 5.00; see People v Ditta, 52 NY2d 657, 660). The term
computer is broadly defined in the Penal Law as “a device or group of
devices which, by manipulation of electronic, magnetic, optical or
electrochemical impulses, pursuant to a computer program, can
automatically perform arithmetic, logical, storage or retrieval
operations with or on computer data, and includes any connected or
directly related device, equipment or facility which enables such
computer to store, retrieve or communicate to or from a person,
another computer or another device the results of computer operations,
computer programs or computer data” (§ 156.00 [1]). “Computer data”
is defined as “a representation of information, knowledge, facts,
concepts or instructions which are being processed, or have been
processed in a computer and may be in any form, including magnetic
storage media, punch cards, or stored internally in the memory of the
computer” (§ 156.00 [3]).

     Although the issue whether a telephone is included in the
statutory definition of “computer” has not been addressed by an
appellate court in this state, in People v Johnson (148 Misc 2d 103),
the court concluded that it is. The court reasoned that “[t]he
instrumentality at issue here is not merely a telephone . . . , but
rather a telephone inextricably linked to a sophisticated computerized
communication system . . . This telephone system, of which the
telephone itself is the essential first component, does comport with
the statutory definition of ‘computer’ that is, the system is a ‘group
of devices which, by manipulation of electronic . . . impulses . . .
can automatically perform . . . logical, storage or retrieval
operations with or on computer data’ . . . The system also meets the
definitional inclusion of ‘any connected or directly related device,
equipment or facility which enables such computer to . . . communicate
to or from a person’ ” (id. at 106-107).

     In light of the foregoing and the fact that the Court of Appeals
has approved of constructions of Penal Law § 235.22 that “criminalize
the use of any ‘sexually explicit communications’ intended to lure
children into sexual contact” (People v Kozlow, 8 NY3d 554, 561,
quoting People v Foley, 94 NY2d 668, 674, cert denied 531 US 875), we
conclude that sending telephone text messages falls within the conduct
proscribed by section 235.22. Thus, the indictment is not
jurisdictionally defective.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
