Transmitting sexually explicit text messages to a 16-year-old girl violates a Penal Law statute that refers only to computers and does not mention telephones, the Appellate Division, Fourth Department, has held in the state’s first appellate court ruling on the issue.

The justices in Rochester held that even though Penal Law §235.22 makes no reference to telephonic communications, the conduct indicted in People v. Holmes, 12-00109, fits within the intent of the statute if not its precise words. They adopted the reasoning of then New York City Criminal Court Judge Charles Heffernan Jr. in a 1990 opinion that a telephone fits within the statutory definition of “computer” (People v. Johnson, 148 Misc 2d 103), at least when used in certain ways.

In another criminal case decided last week, the Fourth Department reversed a robbery conviction in the interest of justice for prosecutorial misconduct in People v. Epolito, 09-01022.

The “sexting” case, People v. Holmes, arose from Genesee County, where the defendant, Marlek Holmes, pleaded guilty to sending an obscene message to a teenage girl. On appeal, the defendant argued the indictment was defective since his alleged offense did not involve “any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another,” as the crime is defined in §235.22.

In an unsigned memorandum, the Fourth Department affirmed Genesee County Court Judge Robert Noonan (See Profile), noting that “penal law 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 hypertechnical or strained interpretations (see People v. Teichler, 52 NY2d 638, 1981).”

The court was persuaded by Heffernan’s reasoning more than 20 years ago in a theft of services case. In Johnson, the defendant was charged with unauthorized use of a computer after he used a telephone in a credit card scan. Heffernan found that a telephone system is part of a group of devices inextricably linked to a computerized communication system.

“In light of [Heffernan's reasoning] and the fact that the Court of Appeals has approved of constructions of Penal Law §235.22 that ‘criminalizes the use of any ‘sexually explicit communications’ intended to lure children into sexual contact,’ we conclude that sending telephone text messages falls within the conduct proscribed by section 235.22,” the Fourth Department said, quoting from People v. Kozlow, 8 NY3d 554 (2007).

Justices Nancy Smith (See Profile), Edward Carni (See Profile), Stephen Lindley (See Profile), Rose Sconiers (See Profile) and Gerald Whalen (See Profile) sat on the panel.

Michael Steinberg of Rochester argued for the defendant.

The prosecution was represented by Assistant District Attorney William Zickl. He said the ruling recognizes that phones are continuing to evolve, becoming more and more like computers.

“The definition is broad in the Penal Law 156,” Zickl said. “It talks about data storage, manipulation of data, and when you look at it in that light certainly the telephone of today is a computer. You can do a lot more with a telephone than make and receive a call. I commend the Fourth Department for being flexible enough to see that although the device is called a ‘telephone,’ it certainly functions as a computer.”

There was no immediate response from Steinberg.

In Epolito, a Syracuse case, the Fourth Department agreed with the defendant that he was denied a fair trial because the prosecutor improperly vouched for the credibility of a prosecution witness.

“We reject the People’s contention that the prosecutor’s comments during summation were a proper response to the summation of defense counsel,” the court said in a decision joined by Justices Centra, Lindley, Sconiers, Erin Peradotto (See Profile) and Salvatore Martoche (See Profile). “We therefore agree with defendant that the cumulative effect of prosecutor’s improper comments during summation deprived defendant of his right to a fair trial, requiring reversal.”

Assistant District Attorney Susan Azzarelli argued for the prosecution.

Richard Epolito was pro se with assistance from Piotr Banasiak of the Frank H. Hiscock Legal Aid Society in Syracuse.

Neither Banasiak nor Azzarelli was immediately available for comment.

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