author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Marvin Teicher, Appellant.
    Argued April 2, 1981;
    decided May 12, 1981

      POINTS OF COUNSEL

      Jacob W. Heller and Eli Feit for appellant.
    I. The evidence as to count III (Beineix) was insufficient as a matter of law to constitute the crime of sexual abuse in that there was a failure of proof as to the elements of lack of consent and inability to communicate. II. Upon the entire case in regard to count III (Beineix), the People failed to prove appellant’s guilt beyond a reasonable doubt. (People v Rice, 61 AD2d 758; People v Downs, 123 NY 558; People v Sandgren, 302 NY 331; People v Butts, 21 Misc 2d 799.) III. The evidence as to count I (Carson) was also insufficient as a matter of law to constitute the crime of sexual abuse in several material respects. Upon the entire case in regard to Carson, reasonable doubt obtained as well. (People v Santos, 38 NY2d 173.) IV. The evidence also failed to establish a crime as to count I in that Carson’s hand does not constitute a “sexual or other intimate part” of the victim, as required by the statute. (People v Crandall, 53 AD2d 956, 45 NY2d 851; People v Wood, 8 NY2d 48; People v Cavanaugh, 48 NY2d 949; People v Vicaretti, 54 AD2d 236; People v Shafer, 30 AD2d 213.) V. The video tape warrant was illegal without statutory authority and was an unreasonable search and seizure in violation of appellant’s rights under the Fourth Amendment to the Constitution of the United States and section 12 of article I of the New York State Constitution. (Stanford v Texas, 379 US 476; People v Nieves, 36 NY2d 396; Berger v New York, 388 US 41; Katz v United States, 389 US 347; Olmstead v United States, 277 US 438; People v McGrath, 57 AD2d 405; People v Sher, 38 NY2d 600; People v Shapiro, 50 NY2d 747; Mancusi v De Forte, 392 US 364; People v Abruzzi, 52 AD2d 499, 42 NY2d 813.) VI. Appellant was denied his statutory right to a speedy trial. (United States v Marion, 404 US 307; People v Washington, 43 NY2d 772; People v Sturgis, 38 NY2d 625; People v Morgan, 63 AD2d 737; People v Blackford, 62 AD2d 1173; People v De Cicco, 62 AD2d 1001; People v Daforno, 59 AD2d 691; People v Sims, 59 AD2d 546; People v Scott, 56 AD2d 667; People v Bellach, 58 AD2d 613.) VII. Subdivision 3 of section 130.00 of the Penal Law is void as violative of the due process clause of the United States Constitution, requiring dismissal of all counts of the indictment. (Lanzetta v New Jersey, 306 US 451; Smith v Goguen, 415 US 566; Chaplinsky v New Hampshire, 315 US 568.)

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and David H. Steiner of counsel), for respondent.
    I. Defendant’s guilt of sexual abuse in the first degree, committed upon Randi Carson and Dorothy Beineix, was proved beyond a reasonable doubt. (People v Becker, 215 NY 126; People v Joyiens, 39 NY2d 197; People v Crandall, 53 AD2d 956, 45 NY2d 851; People v Kittles, 102 Misc 2d 224; Matter of David M., 93 Misc 2d 545; People v Vicaretti, 54 AD2d 236; People v Ahearn, 196 NY 221; Beausoliel v United States, 107 F2d 292.) II. The statutory requirement that the illicit touching be “for the purpose of gratifying sexual desire” does not render the sexual abuse statute unconstitutionally vague. (Matter of Malpica-Orsini, 36 NY2d 568, app dsmd sub nom. Orsini v Blasi, 423 US 1042; People v Pagnotta, 25 NY2d 333; People v Byron, 17 NY2d 64; People v Cruz, 48 NY2d 419; Screws v United States, 325 US 91; United States v National Dairy Corp., 372 US 29; United States v Raines, 362 US 17; United States v Petrillo, 332 US 1; People v Smith, 44 NY2d 613.) III. The installation and use of a hidden camera to record defendant’s sexual abuse of Dorothy Beineix constituted a limited intrusion that was authorized by a valid warrant and that complied with all constitutional and statutory requirements. (People v Abruzzi, 52 AD2d 499, 42 NY2d 813, 434 US 921; Katz v United States, 389 US 347; United States v New York Tel. Co., 434 US 159; Matter of Lyons v Goldstein, 290 NY 19; People ex rel. Weeks v Platt, 173 App Div 451; People v Farini, 239 NY 411; People ex rel. Simpson Co. v Kempner, 208 NY 16; Matter of Alphonso C., 50 AD2d 97, 38 NY2d 923; Cohn v Borchard Affiliations, 25 NY2d 237; Matter of Seidenberg v County Ct. of County of Rockland, 34 NY2d 499.) IV. Defendant was not denied his statutory right to a speedy trial. (People v Wharton, 46 NY2d 924, 444 US 880; People v Adams, 38 NY2d 605; People v Piscitello, 7 NY2d 387; People v Pasquino, 65 AD2d 629; People v Rodriguez, 50 NY2d 553; People v Dean, 45 NY2d 651; People v Patterson, 38 NY2d 623; People v Hall, 61 AD2d 1050; People v Sbarra, 55 AD2d 545; People v Weirich, 65 AD2d 932, 49 NY2d 1020.)
   OPINION OF THE COURT

Gabrielli, J.

The present appeal arises out of nonjury trial of a dentist who stands convicted of sexually abusing two female patients while they were under the effects of sedation at defendant’s office. A camera, which had been secreted in defendant’s treatment room pursuant to a warrant, recorded one of the alleged incidents of áexual abuse. Several issues are raised on appeal, including the propriety of admitting into evidence a video tape of defendant’s activities. In affirming defendant’s conviction, we hold today that a warrant may issue to authorize the video taping of evidence to be admitted at a subsequent trial, provided certain procedures are followed and certain safeguards are observed.

The defendant, a dentist practicing in Manhattan, was convicted of two counts of sexual abuse in the first degree (Penal Law, § 130.65, subd 2) for allegedly subjecting two female patients to sexual contact while they were “incapable of consent by reason of being physically helpless”. The indictment upon which defendant was tried contained three counts of sexual abuse predicated upon the complaints of three of defendant’s patients: Susan Hyman, Randi Carson and Dorothy Beineix. Each of the complainants alleged that they were subjected to physical contact of a sexual nature as they were recovering from the effects of sedation administered by defendant.

Susan Hyman first went to defendant’s office to have a wisdom tooth extracted. After she expressed her fear that novocaine would not sufficiently deaden her pain, Dr. Teicher offered to use another method. Then, presumably to determine if she would suffer any adverse effects from the administration of a general sedative, he performed several tests on his patient and thereafter injected a fluid into her arm causing her to lose consciousness.

At trial Hyman testified that she awoke from her state of unconsciousness when she heard someone calling her name and felt something was touching her face. She opened her eyes and saw an exposed penis directly in front of her. Closing her eyes again, she reopened them to see a pair of trousers being zipped shut. Defendant then slapped her face, touched her blouse and lifted her from the dental chair. Hyman was still groggy and could not control her arms and legs. Defendant told her to “ventilate” her arms and he then drew her close to him and kissed her. While the patient was still unable to stand, defendant, while supporting her body, moved his hands over her breasts and thighs.

Several days following this encounter Ms. Hyman reported the incident to the police. The police equipped her with a hidden microphone before her next visit to the dentist, but when she questioned defendant about his prior activities he refused to admit that he had sexually assaulted her. He did, however, ask Ms. Hyman to join him at his hotel room. She refused his invitation, agreeing instead to meet with him at a nearby bar. On this next rendezvous Hyman was once more equipped with a recording device, but once again defendant made no admission of illegal conduct.

The police also received a complaint from Randi Carson, who had initially gone to defendant’s office for an examination and X rays and later returned for further treatment. As in Ms. Hyman’s case, the defendant gave Ms. Carson a drug, which caused her to lose consciousness immediately. When she awakend she was assisted into a recovery room and, while she was resting there and still overcoming the effect of the drug which had been injected, defendant entered the room and closed the door behind him. No one else was present. Defendant at first tried to lift Carson to a standing position, but his efforts were unsuccessful. He then lifted her hand and placed it on his pants directly over his penis. Although she was still weak, Carson testified she was able to pull her hand away. Carson also testified that defendant kissed her during this encounter and made a remark which she understood as a request to perform an act of oral sex. In addition, according to Carson, he repeatedly asked her to meet with him at his hotel room. Later, upon arriving home, Carson noticed that her underwear was wet and that there was a soreness on the left side of her vagina which she had not felt before her visit to the doctor. That evening Carson brought her complaints to the police.

Carson later returned to defendant’s office wearing a hidden microphone supplied by the police, but no further acts of sexual abuse were recorded or observed by the patient. After this visit defendant telephoned Carson several times at her home to ask her if he could visit with her. Finally, Ms. Carson again returned to defendant’s office with a microphone. In response to her attempts to elicit admissions of sexual abuse from the dentist, however, defendant told her only that the drug he had injected had caused her to imagine the incident of which she later testified.

As a result of these complaints by Hyman and Carson and the unsuccessful efforts of the police to obtain additional incriminating evidence against the dentist, the District Attorney’s office obtained a warrant authorizing the police to install a camera in defendant’s office to monitor his treatment of patients who had consented to the taping. Pursuant to a prearranged plan, Police Officer Dorothy Beineix then went to defendant’s office and made an appointment to have a wisdom tooth extracted at a later date. On the morning of Officer Beineix’ appointment, the police entered defendant’s office and installed the camera in a ceiling ventilator in one of defendant’s examining rooms. The camera, which was focused on the dentist’s chair, was connected to a video recorder and was monitored by police officers who were waiting in the basement of the building.

Later that morning, Ms. Beineix returned to defendant’s office to keep her appointment. Defendant first checked her pulse and blood pressure and then lifted her blouse to examine her chest with his stethescope. During this preliminary examination he instructed her that if she began to have difficulty breathing she should stand, lift her arms and breathe deeply. Following the examination, defendant administered a drug which caused Beineix to lose consciousness. While Beineix was unconscious defendant extracted her tooth and, at one point during this procedure, lifted her blouse and again examined her bare chest with his stethescope. During this entire period, defendant and Ms. Beineix were alone in the treatment room. As Ms. Beineix began to regain consciousness, defendant asked her to stand and put her arms around him. Since she had no control over her body at this time, Beineix told the doctor that she was unable to stand. Defendant then lifted her out of the dental chair and pulled her towards him. While sitting on a stool in front of the dental chair with Ms. Beineix between his legs, defendant lifted her blouse and began moving his hands across the upper part of her back and around toward her breasts. He then slid both hands down across her back and grabbed her buttocks. While massaging her buttocks in a circular motion he drew her body toward his. All of these actions were recorded on the video tape which was later admitted into evidence.

At this point the officers who were monitoring the video tape in the basement signaled other officers to arrest defendant. Detective Brech and Investigator Dadona were the first to enter the treatment room. Dadona testified at trial that when he first opened the door he observed that defendant’s hands were on Ms. Beineix’ sides, and that his thumbs were massaging the nipples of her breasts.

At his subsequent trial defendant was convicted of two counts of sexual abuse in the first degree for the acts committed upon complainants Carson and Beineix. The count involving the complaint of Susan Hyman was dismissed, however, because the court found that defendant’s guilt had not been established beyond a reasonable doubt. A divided Appellate Division affirmed defendant’s conviction on both counts, and leave to appeal to this court was thereafter granted. Defendant now attacks the judgment of conviction on several grounds.

Defendant first contests his conviction on the count concerning the Carson incident on the ground that the evidence at trial was insufficient, as a matter of law, to establish his guilt. The statute under which defendant was convicted provides that a person is guilty of sexual abuse in the first degree when he subjects another person to sexual contact “[wjhen the other person is incapable of consent by reason of being physically helpless” (Penal Law, § 130.65, subd 2). Sexual contact is defined in the Penal Law as “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying the sexual desire of either party” (Penal Law, § 130.00, subd 3). Defendant claims that the evidence at trial was insufficient to establish that Ms. Carson was incapable of consenting to the touching and that there was no evidence to establish that this touching was for sexual ' gratification. Neither of these claims is supported by the record.

Carson was heavily sedated at the time the initial touching occurred and, as a consequence, she was in an extremely weakened condition. Thus, although she had enough control over her body to pull her hand away after defendant had placed it against his penis, the trier of fact was entitled to infer that she lacked capacity to consent to the original touching because of her generally weakened condition. Furthermore, we find defendant’s contention that the touching was too fleeting to establish the element of sexual gratification to be frivolous. The statute does not require that actual gratification occur, but only that the touching be for that purpose. Defendant’s act of placing his patient’s hand against his covered penis was more than sufficient to permit a trier of fact to find that the purpose of this act was sexual gratification.

Defendant also argues that even if the element of sexual gratification and the victim’s incapacity were established, his act of placing Carson’s hand against his genital area could not possibly constitute the crime of sexual abuse, since the statute proscribes only the act of a defendant who touches the intimate parts of his victim and not the act of a person who places his victim’s hand against his own intimate parts. As we have held, this argument must be rejected because it requires an overly restrictive and improper reading of the statutory language (see People v Ditta, 52 NY2d 657 [decided herewith]). The common-law policy that a penal provision should be strictly construed has been expressly abolished by the Legislature; 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” (Penal Law, § 5.00) and are not to be given hypertechnical or strained interpretations (People v Ditta, supra, citing People v Sansanese, 17 NY2d 302, 306; People v Wood, 8 NY2d 48, 51).

Addressing the other count upon which defendant was convicted, that involving the sexual abuse of Dorothy Beineix, defendant once more challenges the sufficiency of the evidence, and also asserts that, for various reasons, the introduction into evidence of a video tape of his actions relating to the Beineix incident was improper. For reasons which follow we also uphold defendant’s conviction under this count of the indictment.

The evidence upon which the People’s case was built consisted primarily of the video tape of defendant’s actions, the testimony of Inspector Dadona and Dorothy Beineix and, finally, the testimony of an expert witness who attempted to refute defendant’s claim that his actions were medically necessary. The camera which recorded defendant’s activities was positioned in such a way as to give a view overlooking the dental chair and a portion of the room. The relevant portion of the video tape revealed that after defendant had completed the extraction of Beineix’ tooth, he lifted his patient from the dental chair and placed her between his legs. At this moment defendant was sitting atop a stool and supporting Beineix in a standing position. It could readily be inferred from a viewing of the tape that the patient had no control over her body at this point. Defendant then lifted Beineix’ blouse and moved his hands across her back. Although, because of the camera angle, it cannot be determined from the tape whether defendant actually placed his hands upon Ms. Beineix’ breasts, the tape does reveal that he massaged her buttocks with, both hands and pulled her toward his pelvic region. In addition to the video tape, the People also produced Inspector Dadona, who entered the treatment room at the signal of the officers monitoring the video tape and was therefore able to give eyewitness testimony of what transpired. He testified that when he first entered the office he observed defendant holding Beineix by her sides and massaging the nipples of her breasts with his thumbs. Although Beineix testified at trial that she could not recall if defendant had massaged her breasts, she was able to recall that he moved his hands across her body and down to her buttocks, causing her to become very frightened.

Defendant first contends that there was no proof that Beineix was incapable of consent by reason of being physically helpless. Noting that when he first told her to stand she responded that she was unable to do so, defendant argues that the crime of sexual abuse was not made out because there was no proof that Beineix could not communicate her unwillingness to submit to the subsequent touching. She did, however, testify that she had no control over her body, although she was mentally aware. As the People assert, simply because Beineix was unable to respond to defendant’s direct command to stand does not prove, as a matter of law, that she was able to protest every subtle movement of his hand across her flaccid body. The People’s medical expert testified at trial that when a patient is raised to a standing position, as in this case, there may be a decrease in the cerebral blood flow which could result in dizziness or even unconsciousness. In addition, the doctor testified that this effect is merely compounded by the application of chest compression. The state of the victim’s physical helplessness at any given moment is largely a question of fact which, in view of this and other testimony, we may not question upon this record. Furthermore, we reject the notion that the victim’s status as a police decoy resulted in implicit consent to the physical touching because, as defendant claims, she voluntarily placed herself in a position to incur this abuse. Her consent to acting as a police decoy is not equivalent to a consent to a touching of her intimate parts, which she was physically incapable of giving at the time of the illegal activity.

Defendant also asserts that there was insufficient proof that any improper touching occurred because the tape was inconclusive on this point and, further, because the testimony of Inspector Dadona was not worthy of belief. The visual material on the tape, however, did not serve to disprove, on the contrary was consistent with, the conclusion that an unlawful touching occurred, even though the camera angle precluded an unobstructed view of all of defendant’s activities. And, inasmuch as Inspector Dadona’s testimony was not, as a matter of law, incredible, the trier of fact was entitled to consider his testimony as direct evidence that the described touching actually occurred.

Finally, defendant attacks the sufficiency of this evidence by asserting that the People have failed to prove, beyond a reasonable doubt, that the touching of Beineix was not performed pursuant to a valid medical procedure. Indeed, throughout the course of this litigation defendant’s position has been that the actions which he took were part of a necessary medical treatment to bring Beineix out of a state of respiratory distress through the application of pressure on her ribcage. In support of these assertions defendant produced two experts at trial who indicated that the actions depicted on the tape could be a form of resuscitory technique. Interestingly, they also indicated, however, that this technique was neither taught nor recommended, that it was unknown to them and, in fact, would probably be employed only by a minimally trained practitioner. Moreover, the People produced an expert witness who testified in substance that the tape reveals that Beineix was not in need of respiratory assistance and that, even if she were, the method of resuscitation employed by defendant would in fact be detrimental to his patient rather than helpful. In light of this evidence the trier of fact had more than ample basis for rejecting defendant’s contention that his actions were dictated by any claimed medical necessity.

Defendant’s next assertions go not to the sufficiency of the evidence at trial, but to the propriety of permitting the video tape of his activities involving Ms. Beineix to be introduced into evidence. This matter presents questions of first impression before this court.

Defendant’s initial contention is that Supreme Court had no power to issue a warrant authorizing the type of surveillance which took place in this case. There is, of course, no doubt that the Supreme Court had the power to authorize the aural recording of the events in defendant’s office. The authority of a court to permit aural electronic surveillance is derived from CPL article 700. This article deals with the use of eavesdropping warrants, and defines eavesdropping as wiretapping or mechanical overhearing of a conversation (CPL 700.05, subd 1). Defendant, however, argues that article 700, by its express terms, may not be read as conferring on the courts the power to authorize video electronic surveillance.

Initially, we note our agreement with defendant’s contention that CPL article 700 does not apply to video surveillance. This article applies only to eavesdropping, which is defined as wiretapping or mechanical overhearing of a conversation (CPL 700.05, subd 1). The statutory language is directed toward the aural acquisition of information, and does not mention the acquisition of visual images.

Nevertheless, we believe that the warrant which permitted video surveillance in this case was valid, since it was authorized by the provisions of CPL article 690. CPL 690.-10 (subd 4) provides that “[p]ersonal property is subject to seizure pursuant to a search warrant if there is reasonable cause to believe that it * * * [c] onstitutes evidence or tends to demonstrate that an offense was committed or that a particular person participated in the commission of an offense”. Defendant maintains that this statute authorizes only the seizure of tangible property and does not permit the seizure of an intangible visual image secured by a video recording. We reject this interpretation.

In People v Abruzzi (52 AD2d 499, affd on opn below 42 NY2d 813, cert den 434 US 921), the court reversed the conviction of a doctor who had been convicted for certain acts of sexual misconduct largely upon the testimony of a police officer who had observed defendant’s actions while perched on a ladder outside the doctor’s window. The Abruzzi court held that the defendant’s motion to suppress this evidence should have been granted because it was procured without the authorization of a warrant. Implicit in this holding is the premise that a proper warrant may issue to permit the seizure that results from obtaining visual observations of a crime in progress in a private place. Similarly, in United States v New York Tel. Co. (434 US 159), the Supreme Court had occasion to determine if rule 41 of the Federal Rules of Criminal Procedure, which closely parallels the language of CPL 690.10 (subd 4), authorizes the issuance of a warrant to seize intangible evidence. One of the issues in that case was whether a Federal District Court could issue a warrant authorizing the use of a pen register. The court determined that rule 41 is sufficiently broad to include seizures of. intangible items such as dial impulses recorded by these devices, and also noted that in Katz v United States (389 US 347) the court had held that rule 41 was sufficiently flexible to include the power to authorize the seizure of conversations. We believe that the similarity in the wording of rule 41 and CPL article 690 is sufficient to permit analogy. Accordingly, we conclude that the court in the instant case was authorized under CPL article 690 to issue a warrant for the seizure of intangible visual images in defendant’s office.

Defendant also contends that even if such a warrant is authorized under the CPL, the warrant in this case must nevertheless fall because it did not comply with the provision of title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (US Code, tit 18, _§§ 2510-2520). This is based upon the assumptions that title III applies to the area of visual electronic surveillance and that this provision pre-empts State law. Although we have previously held that title III does indeed pre-empt State law in the area of electronic surveillance (People v Shapiro, 50 NY2d 747), this fact is unavailing in the present case, since title III does not apply to the field of video electronic surveillance and indeed, does not prohibit the type of surveillance here employed.

Title III, also often referred to as the Federal wiretapping statute, prescribes the procedure for securing judicial authority to intercept wire or oral communications in the investigation of specified serious offenses. Similar to the provision of CPL article 700, which was drafted to conform to the provisions of the Federal act (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL art 700, p 243), title III deals only in the aural acquisition of the contents of any wire or oral communication. As the language and legislative history of that statute makes clear, it was never intended to address the use of video surveillance equipment (see Carr, Electronic Surveillance, § 3.08, p 124; Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, p 2178).

Defendant makes one final argument concerning the video tape evidence which deserves attention. He maintains that the use of visual surveillance is so intrusive that any act of this nature should be deemed unreasonable per se under the Fourth Amendment. While we agree with defendant’s concern over the high degree of intrusiveness that is inherent in this form of surveillance, we cannot agree that such activities are per se unreasonable and must be prohibited under all circumstances. Certainly the Orwellian overtones involved in this activity demand that close scrutiny be given to any application for a warrant permitting video electronic surveillance. Nevertheless, the Fourth Amendment does not mandate an absolute ban on video surveillance any more than it mandates a total proscription on electronic eavesdropping. Indeed, there may be situations such as the present one where the intrusion resulting from such surveillance is warranted because of the State’s high interest in gathering evidence of criminality and its inability to achieve this goal through less intrusive means.

Although there are at present no significant statutory limitations in the field of video electronic surveillance, we are not completely without guidance in this area. In Berger v New York (388 US 41) and Katz v United States (389 US 347, swpra), both of which predated the advent of title III in the area of electronic eavesdropping, the Supreme Court set forth the minimum constitutional standards governing the use of aural electronic surveillance. Because of the substantial similarities between this form of surveillance and the video electronic surveillance which took place in this case, we believe that the standards announced in Berger and Katz are applicable with equal force to the present situation. And, contrary to defendant’s assertions, we believe that these constitutional standards were here satisfied.

The first requirement for a warrant authorizing video electronic surveillance, as with any warrant, is that there be a showing of probable cause. In situations involving this form of search, there must be probable cause to believe that a particularly described person is committing, has committed,. or is about to commit a crime, probable cause to believe that the place where the áctivity is to be intercepted is being used or is about to be used in connection with the commission of the crime by that described person, and also probable cause to believe that a particular activity related to that crime will be observed through the use of video electronic surveillance (see Berger v New York, supra; cf. CPL 700.15, subds 2, 3, 5). Such probable cause was clearly established by the affidavit offered by the District Attorney in support of his application for a warrant, which fully set forth the facts leading up to the Beineix incident.

The Constitution also requires particularization in the warrant. Specifically, the Fourth Amendment commands that the warrant must particularly describe “the place to be searched, and the * * * things to be seized”. In the area of video electronic surveillance, as in the area of electronic eavesdropping, the particularization requirement includes specification of the crime under investigation, specification of the type of activity sought to be captured by the camera and also specification of the person expected to be seen performing the activity. The obvious purpose of this requirement is to limit the discretion of the officers in executing the search. Here, all of these requirements were satisfied. Although the warrant did not specify the particular room in which the camera was to be placed, the affidavit, which was incorporated in the warrant, did specify that the camera was to be placed in defendant’s dental office and was to focus upon the dental chair in which consenting patients would be seated. While defendant apparently had two treatment rooms, we nevertheless conclude that the limitation upon the place to be searched was sufficiently specific to obviate the danger of a general rummaging for evidence or a search of impermissibly broad scope (see Coolidge v New Hampshire, 403 US 443).

Minimization is also necessary for a warrant authorizing video electronic surveillance. In Berger, the court expressed concern that conversations of persons coming into an area covered by an eavesdropping device might be unnecessarily and indiscriminately seized without regard to their connection with the crime under investigation. This concern is equally compelling when visual surveillance is employed. The warrant in this case explicitly provided, however, that the surveillance be conducted in such a way as “to minimize the recording of activities not related to the [specified] crimes”. Moreover, the incorporated affidavit expressly limited the view of the camera to the dental chair in defendant’s office and specified that the device would be turned on only when consenting females were in the treatment room. These limitations were sufficient to ensure that the surveillance would be confined to the observation of the activities for which the warrant was issued.

Finally, before a warrant authorizing unconsented video electronic surveillance may issue, it must be established that there are no less intrusive means for obtaining the needed evidence. Since electronic surveillance of any kind is necessarily surreptitious and constitutes an extensive invasion of the individual’s privacy, it may only be permitted where normal investigative procedures had been tried and had failed or are demonstrably unlikely to succeed. Defendant contends that such a showing could not be made in this case, but the facts do not bear out his contention. Before applying for the warrant the police had questioned defendant about one of the complaints of sexual abuse, had equipped two of the female complainants with hidden recorders and transmitters in an attempt to elicit admissions from defendant, and had tapped the telephone of a complainant who had received repeated calls from defendant. Furthermore, the use of a police decoy without the protection of visual surveillance would not have produced the needed evidence in this case, since the decoy, of necessity, would have been heavily sedated and might not have been able to relate what transpired. Under these circumstances it cannot be said, despite defendant’s protestations to the contrary, that the police failed to make a sufficient showing of necessity before obtaining the warrant.

As we have stressed, the constitutional requirements outlined for eavesdropping in Berger v New York (388 US 41, supra), and Katz v United States (389 US 347, supra) are equally applicable to the area of video electronic surveillance. While we have discussed several of these requirements in the instant case, our opinion should not be construed as an inventory of each of the necessary elements for such a warrant. The degree of intrusiveness inherent in video electronic surveillance demands unswerving adherence to each of the limitations placed upon the use of this device. Moreover, because the use of this investigative technique poses a threat to the privacy of citizens, legislative scrutiny of the field and the enactment of specific guidelines would appear to be in order.

We have considered defendant’s remaining contentions and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . The police obtained the aural portions of the video tape by planting a microphone in Beineix’ purse, which she carried into the treatment room. In general, if one of the parties to an intercepted conversation consents to the recording or mechanical overhearing of that conversation, the provisions of CPL article 700 do not apply (see CPL 700.05, subd 1; Penal Law, § 250.00; see, also, United States v White, 401 US 745). Although the fact that Beineix was unconscious during her dental treatment might have some bearing on an analysis under United States v White, we have no need to consider the question since defendant does not separately contest the aural portion of the tape, perhaps because it contains little of an inculpatory nature. Additionally, we note, without deciding, that if a consenting party carries a camera on her person, the seizure which occurs might not be subject to the warrant requirement (cf. United States v White, supra). This issue is not before us, however, because the camera used in this case was planted in defendant’s office pursuant to a court-authorized entry of the building.

      . The Supreme Court described a pen register as “a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed” (United States v New York Tel. Co., 434 US 159, 161, n 1, supra).

      . Title III specifies that an eavesdropping warrant may issue only for certain specified crimes, namely “murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crimes dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing * * * interception, or any conspiracy to commit any of the foregoing offenses.” (US Code, tit 18, §2516, subd [2]). In People v Shapiro (supra) we held that allegations of prostitution and sexual abuse predicated upon the inability of the victim to consent by reason of age did not fall within this list of enumerated crimes. On the basis of our holding in Shapiro, defendant argues that the Federal act also precludes electronic surveillance in cases involving only the crime of sexual abuse committed against a victim who is incapable of consent by reason of physical helplessness.

      . Specifically, the Senate report provides as follows: “Paragraph (4) defines ‘intercept’ to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation”.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    The People of the State of New York, Respondent, v John Ditta, Appellant.
    Argued April 2, 1981;
    decided May 12, 1981

      POINTS OF COUNSEL

      Spiros A. Tsimbinos for appellant.
    The People failed to establish appellant’s guilt beyond a reasonable doubt as to several of the counts in the indictment. (People v Gottlieb, 36 NY2d 629; People v Vicaretti, 54 AD2d 236; People v Teicher, 73 AD2d 136; People v Crandall, 53 AD2d 956, 45 NY2d 851.)

      John Santucci, District Attorney (Ivan K. Chester of counsel), for respondent.
    The evidence was sufficient to esblish appellant’s guilt beyond any reasonable doubt. (People v Bianchi, 55 AD2d 993; Matter of David M., 93 Misc 2d 545; People v Medina, 44 NY2d 199; People v Dow, 28 NY2d 860; People v Patno, 55 AD2d 965; People v Braven

      der, 35 AD2d 1035; People v Connor, 126 NY 278; People v Bercume, 38 AD2d 356; People v Ayers, 65 AD2d 862.)
   OPINION OF THE COURT

Chief Judge Cooke.

Presented for review is the question whether a defendant may be convicted of sexual abuse in the first degree (Penal Law, § 130.65) where he compels another person to touch his sexual or other intimate parts. For reasons that follow, such conduct constitutes sexual abuse.

On the morning of March 15, 1978, the 16-year-old victim was hurriedly walking to school to avoid arriving late. Suddenly, she was accosted by a man riding a motorcycle, later identified as defendant John Ditta. Defendant flashed a badge, which the young woman thought was a police shield, and blocked her path with the motorcycle and his own body. Seeing a knife in his pocket, the victim feared for her life and decided to comply with defendant’s commands.

Ditta.placed his jacket on the ground, got down and directed the victim to get on top of him. He then displayed the knife and threatened to kill her if she did not do what he wanted. The victim was instructed to feel defendant’s crotch area. She testified that she felt as directed for a few minutes, that the area was hard and that defendant’s pants were wet. The young woman then blacked out.

A short time later the police arrived on the scene, having been summoned by a local resident who witnessed many of the events, took down defendant’s license plate number and later testified at trial. The officers, armed with the license number, placed the victim in the patrol car and cruised the area. Five or six blocks away, they spotted defendant on the motorcycle and, after a short chase, apprehended him. He was in possession of a knife and his wallet contained a Department of Sanitation shield. One of the officers observed a wet spot on defendants pants in the crotch area. After a non jury trial, defendant was convicted of sexual abuse, first degree, second degree unlawful imprisonment, criminal possession of a weapon in the fourth degree endangering the welfare of a minor and menacing. The Appellate Division affirmed, without opinion.

On this appeal, defendant’s principal argument is that, because of the terminology of the sexual abuse provision, a person is not guilty of that crime unless he or she touches the sexual or intimate parts of another person. Forcing the other person to touch the defendant’s sexual parts does not amount to sexual abuse, according to defendant.

Sexual abuse in the first degree is committed when a person “subjects another person to sexual contact * * * [b]y forcible compulsion” (Penal Law, § 130.65). Sexual contact is defined as “any touching of the sexual or other intimate parts of a person not married to the actor” (Penal Law, § 130.00, subd 3). In essence, defendant would have the court “strictly construe” the word actor as requiring that the individual charged be the one who touches the other person. The invitation to adopt this grudging interpretation of the statute must be declined. Criminal liability is imposed under section 130.65, not under section 130.00, the definitional section.

Initially, it should be emphasized that the common-law policy of strictly construing a penal code no longer obtains in this State. The Legislature expressly abolished that rule, and ordained instead that the provisions of the Penal Law be interpreted “according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law, § 5.00). Although this rule obviously does not justify the imposition of criminal sanctions for conduct that falls beyond the scope of the Penal Law (e.g., People v Sansanese, 17 NY2d 302, 306; People v Wood, 8 NY2d 48, 51), it does authorize a court to dispense with hypertechnical or strained interpretations of the statute (see, e.g., People v Abeel, 182 NY 415,420-422). Thus, conduct that falls within the plain, natural meaning of the language of a Penal Law provision may be punished as criminal.

Mindful of these considerations, we begin our inquiry by examining section 130.65, the substantive sexual abuse provision. That statute prohibits a person from subjecting another to sexual contact. Nowhere does the section prescribe which person must perform the actual touching. On its face, it is broad enough to encompass sexual touching of the victim by the defendant or touching of the defendant by the victim under compulsion by the defendant. In either instance, the defendant would be subjecting another person to sexual contact. Thus, by provision of section 130.65, the defendant is made criminally liable, not if he touches another, but if he “subjects another person to sexual contact”. Such subjection would occur if the defendant himself touched the other person, if he caused the other person to touch him, or if he caused the other person to touch a third person. Legislative limitation on the reach of the sexual abuse offense is therefore not discernible from the substantive provision itself. To the contrary, the statute as worded embraces all sexual contact.

Nor does the definition of sexual contact, heavily relied upon by defendant, narrow the scope of the crime to exclude instances in which the defendant causes the victim to touch him. Sexual contact is defined broadly and includes any touching of a person not married to the actor. There is simply no basis for attributing overriding significance to the word “actor” and interpreting it as referring exclusively to the defendant. In a sense, the victim may always be deemed an actor. When the defendant performs the actual touching, the victim is an involuntary, passive actor; if the victim is forced to touch the defendant, the victim becomes an involuntary, active actor. Surely, no one would suggest that the sexual abuse statute is inapplicable merely because the victim is a passive actor. By the same token, it should not be rendered inapplicable where the victim is forced to perform an active role.

The definitional section obviously was intended to accomplish a specific purpose, namely the exclusion of sexual contact between married persons from the ambit of the statute. To read it in a hypertechnical manner that would make the applicability of section 130.65, the otherwise broad substantive sexual abuse provision, turn upon which party is the more active participant would be to reach an absurd result. It would exalt the role of the definitional section far beyond that which was intended.

It is of no moment that other State Legislatures have seen fit to draft their sexual abuse statutes in a different fashion and in some instances more explicitly cover the instant situation, as defendant points out. Our task is to interpret this State’s statute as we find it and ascertain the intent of our Legislature. That other legislatures have chosen a different course, perhaps only to preclude the challenge defendant now raises or for other unknown reasons, cannot be afforded controlling significance.

In sum, given the inclusive nature of section 130.65, the obvious purpose underlying the definitional section and the absence of any other indication that the crime was meant to include only those instances where the defendant performs the actual touching, we conclude that “sexual contact” occurs when the defendant forces the victim to touch his sexual or intimate parts.

Finally, there is no merit to defendant’s argument that the evidence here was legally insufficient to establish the crimes for which defendant was convicted.

Accordingly, the order of the Appellate Division should be affirmed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order affirmed.


author: Fuchsberg, J.

text:
    Ruder & Finn Incorporated, Appellant-Respondent, v Seaboard Surety Company, Respondent-Appellant.
    Argued March 25, 1981;
    decided May 12, 1981

      POINTS OF COUNSEL

      Stuart C. Sloame and Abraham J. Backenroth for appellant-respondent.
    I. Since the State complaint alleged facts sounding in defamation, a cause within the stated coverage, the insurer was obliged to defend. (Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 297 NY 148; Pow-Well Plumbing & Heating Co. v Merchants Mut. Cas. Co., 195 Misc 251; Lee v Aetna Cas. & Sur. Co., 178 F2d 750; Morrison v National Broadcasting Co., 19 NY2d 453.) II. Since the State complaint alleged that the insured inflicted substantial injury to the good will or reputation of plaintiff’s products and business by unethical business practices and commercially immoral activity, the insurer was obliged to defend under its policy covering unfair competition. (Hartol Prods. Corp. v Prudential Ins. Co. of Amer., 290 NY 44; Dior v Milton, 9 Misc 2d 425, 2 AD2d 878.) III. As a matter of law, Seaboard is estopped from denying Justice Asch’s determination that the State complaint purports to assert a possible claim in defamation. (Morette v Bostwick, 127 App Div 701.) IV. Public policy considerations support the recognized principle of law that insurers must defend suits which debatably come within the coverage and may not await determination of ultimate liability. (Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 297 NY 148; Grand

      Union Co. v General Acc., Fire & Life Assur. Corp., 254 App Div 274, 279 NY 638; Pow-Well Plumbing & Heating Co. v Merchants Mut. Cas. Co., 195 Misc 251; Lee v Aetna Cas. & Sur. Co., 178 F2d 750; International Paper Co. v Continental Cas. Co., 35 NY2d 322; Commercial Pipe & Supply Corp. v Allstate Ins. Co., 36 AD2d 412.)

      Robert M. Callagy, James F. Rittinger and George L. Mahoney for respondent-appellant.
    I. Seaboard had no duty to defend in either the State or Federal action because neither of ATI’s complaints alleged facts within the ambit nor protection of Seaboard’s libel policy. (Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 297 NY 148; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364; Advanced Refrig. & Appliance Co. v Insurance Co. of North Amer., 42 AD2d 484; Great Amer. Ins. Co. v London Records, 35 AD2d 661; Grand Union Co. v General Acc., Fire & Life Assur. Corp., 254 App Div 274, 279 NY 638; Pow-Well Plumbing & Heating Co. v Merchants Mut. Cas. Co., 195 Misc 251; Prashker v United States Guar. Co., 1 NY2d 584; Mason-Henry Press v Aetna Life Ins. Co., 211 NY 489.) II. Under no circumstances-could summary judgment be granted to Ruder & Finn.
   OPINION OF THE COURT

Fuchsberg, J.

Plaintiff Ruder & Finn, a public relations firm and the insured under a so-called “Libel Policy”, seeks to recover for the attorneys’ fees and disbursements it incurred in the successful defense of two suits which its insurer, defendant Seaboard Surety Company, disclaiming coverage, refüsed to defend. The issue boils down to whether the allegations of fact or legal theory in each of the two actions brought the claims they asserted sufficiently within the embrace of “defamation” or “unfair competition”, two of the kinds of claims against which the insuring agreement undertook to defend and, if necessary, indemnify. The carrier’s agreement to defend, cast in language commonly employed in liability policies, called for a defense “ ‘even if such suit is groundless, false or fraudulent’ ” (see Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 297 NY 148, 151).

This clause was first invoked by plaintiff when it was served with a summons and complaint issued out of the Federal District Court for the Southern District of New York at the behest of ATI, Inc. (Aerosol Technique), a manufacturer and packager of aerosol products. That complaint alleged that the insured had conspired with others to coerce ATI into retaining it to combat adverse publicity that the fluorocarbon propellants found in aerosol products endangered the earth’s ozone layer. Most pointedly for our purposes, it went on to state that the publicity “unfavorably and falsely desparaged [sic] * * * ATI’s aerosol products.”

According to the pleader, tlie issuing source of the anti-aerosol publicity was a codefendant, PIPE, Inc. (Public Interest Public Relations), presumably a nonprofit organization, founded by William Ruder, president of Ruder & Finn, to serve public interest groups and causes. Ruder and two other individuals associated with both Ruder & Finn and PIPE completed the role of defendants ATI had joined. In this instance, PIPE is alleged to have entered the picture at the request of the Natural Resources Defense Council, an environmental organization. In essence, the coercion was said to derive from the dual relationship between Ruder & Finn’s people and PIPR, most particularly William Ruder’s concomitant ability to act as intermediary between the Defense Council and ATI.

Its carrier having rejected the demand that it assume responsibility for defending this litigation, Ruder & Finn, through engaged counsel of its own choice, subsequently obtained its dismissal for lack of subject matter jurisdiction.

Some three weeks later, ATI sued for a second time, thus providing a second occasion for Seaboard Surety’s refusal to take over a defense under the policy. The venue for the new suit, against the identical defendants and obviously rooted in the same background, was laid in the New York Supreme Court, New York County. The complaint this time alleged, much as it had in the initial litigation, that the defendants had engaged in a conspiracy to disseminate anti-aerosol publicity which, if successful, “would have the effect of ruining and destroying the aerosol business in general and driving [ATI] out of business”. It further set forth that the “adverse publicity” thus promulgated “did in fact have the intended effect of causing substantial injury to the aerosol industry in general and to [ATI] in particular by inducing the general public to boycott aerosol products”. In a second cause of action, ATI added that the conduct in furtherance of the conspiracy was “intentional and malicious and designed to intimidate and coerce plaintiff to its financial detriment by threatened interference with and destruction of plaintiff’s business, business relations and contracts”, all presumptively because of “plaintiff’s failure to retain the services of * * * Ruder & Finn”. But, after all this, notably absent was any repetition, directly or indirectly, of the allegation that the defendants “falsely disparaged” ATI’s aerosol products.

Though it now was put through a longer course, the policyholder, once more compelled to retain its own counsel, again won a dismissal, this time for ATI’s failure to state a good cause of action. On appeal, the ensuing order and judgment of the Supreme Court were affirmed by the Appellate Division and, finally, on appeal to this court, finding that ATI’s contention that it had stated a valid cause of action for prima facie tort was without merit, we too affirmed (ATI, Inc. v Ruder & Finn, 42 NY2d 454) .

With all this before it, on cross .motions for summary judgment, Special Term held that the facts pleaded in neither the underlying Federal nor the State action came within the insurance policy’s coverage, and that Seaboard, therefore, was within its rights in denying any duty to defend. But the Appellate Division, disagreeing in part, modified that determination by finding that Seaboard was required to defend the Federal action and thereupon, pursuant to CPLR 5713, granted each side leave to appeal, in the process certifying the following question for our review: “Was the order of this Court, which modified the order of the Supreme Court, properly made?” Because we believe it was, we now affirm.

It is a well-established legal principle that the duty of an insurer to defend is broader than its duty to pay (Goldberg v. Lumber Mut. Cas. Co. of N. Y., 297 NY 148, 154, supra). The duty to defend arises whenever the allegations in the complaint fall within the risk covered by the policy. It therefore includes the defense of those actions in which alternative grounds are asserted, even if some are without the protection purchased. Further, a policy protects against poorly or incompletely pleaded cases as well as those artfully drafted. Thus the question is not whether the complaint can withstand a motion to dismiss for failure to state a cause of action. Nor is the insured’s ultimate liability a consideration. If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be (International Paper Co. v Continental Cas. Co., 35 NY2d 322,325; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364, 368; Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 297 NY 148, 154, supra).

Before applying these standards to ATI’s two complaints, some comments are in order on the nature of the torts— defamation and unfair competition — which, among those listed in the insuring clause, are the ones about which this coverage dispute revolves. For only with their scope in mind can we determine whether the pleadings set out claims which, whether pleaded well or clearly, on the one hand, or poorly or obscurely, on the other, can be said to sound in these civil wrongs.

We start with product defamation, whose delineation is relatively uncomplicated. Perhaps more properly known in this context as product disparagement, legal historians trace its ancestry to the common-law tort of slander of title. Fashioned originally to provide a remedy against one who cast oral aspersions upon the legitimacy of an owner’s right to his land, as this tort evolved it was enlarged to cover written aspersions as well. Next it was extended to include title to property other than land and, eventually, to the disparagement of the quality of, as distinguished from title to, property (Prosser, Torts [4th ed], p 915 et seq.).

Now, although defamation and disparagement in the commercial context are allied in that the gravamen of both are falsehoods published to third parties, there is a distinction. Where a statement impugns the basic integrity or creditworthiness of a business, an action, for defamation lies and injury is conclusively presumed. Where, however, the statement is confined to denigrating the quality of the business’ goods or services, it could support an action for disparagement, but will do so only if malice and special damages are proven (see Drug Research Corp. v Curtis Pub. Co., 7 NY2d 435; Marlin Fire Arms Co. v Shields, 171 NY 384, 390; Competitive Torts, 77 Harv L Rev 888, 893-894).

The reach of “unfair competition”, however, appears to invite more controversy. The insured here asserts that the doctrine is a flexible one, best characterized as the law of “commercial unfairness”. From that generality, it would extrapolate that, because the tort is neither defined nor limited by the insurance policy, it should be given the broadest possible interpretation. On that premise, it would have us put within the definition of unfair competition property rights of commercial value which are subject to any form of commercial immorality.

The insurer, on the other hand, while accepting the general rule of construction pertaining to insurance policies— that all ambiguities to the meaning of a policy must be resolved in favor of the insured (Miller v Continental Ins. Co., 40 NY2d 675, 678) — contends that the definition of “unfair competition” “does not have boundless application as a remedy for unfair trade practices” (Alfred Dunhill Ltd. v Interstate Cigar Co., 499 F2d 232, 237). Rather, it goes on, the primary concern in unfair competition is the protection of a business from another’s misappropriation of the business’ “organization [or its] expenditure of labor, skill, and money” (International News Serv. v Associated Press, 248 US 215, 239).

We believe that the insurer’s position accurately reflects the long-abiding state of the law on the subject. Even the case on which the insured relies for its broad-ranging definition of unfair competition accepts the principle of misappropriation of another’s commercial advantage as a cornerstone of the tort (see Dior v Milton, 9 Misc 2d 425, 431, 435, affd 2 AD2d 878). It follows that the policy’s phrase “unfair competition” is not to be equated with the far more amorphous term “commerical unfairness”.

No succor, therefore, is to be had by the plaintiff from the fact that an actuarially oriented insurance carrier, in computing premiums for underwriting purposes, will have taken into account the recognized rule requiring that ambiguities be resolved in favor of its insureds. The simple answer, of course, is that there just was nothing ambiguous about “unfair competition” in the present context. To redefine these words at this point is to ignore the importance of stability to the law governing commercial and property relationships (People v Hobson, 39 NY2d 479, 489).

Coming now to the Federal suit, it is evident that the pleading there alleged sufficient facts as to product disparagement to come within the policy’s coverage. While in that case the complaint’s first cause of action was couched in terms of restraint of trade, it went on to allege that those whom it had joined as defendants were engaged in “false disparagement” of aerosol products in an effort to coerce ATI into retaining the Ruder & Finn firm to do public relations work. ATI further claimed that as a result of the alleged scheme it had suffered grievous financial losses. These facts, though found deficient to sustain the Federal antitrust claim, painted a picture which, had it been established, conceivably could have subjected defendant’s insured and its codefendants to liability for commercial disparagement. Albeit the policy speaks in terms of “defamation” rather than “disparagement”, we find the tort to which it refers within the scope of the insuring clause’s protection. The conceptual similarities between these torts, the semantic sameness which laymen might ascribe to them (compare “defamation” with “disparagement” as defined in Webster’s Third New International Dictionary) and, again, the rule of construction resolving ambiguities against the insurer all support this position.

True, the pleadings failed to allege special damages, but, as noted earlier, the absence of an element of a properly pleaded cause of action is of no moment in determining Seaboard’s duty to defend. For that matter, neither did the fact that there was no colorable basis for Federal jurisdiction relieve Seaboard of its obligation. Rather, the latter merely provided the insurer with what in fact turned out to be a sure-fire defense in the Federal District Court.

The suit in our State courts is another story. Although the complaint there was based upon the same chain of events which precipitated the Federal complaint, it was more narrowly focused. The gap between the two complaints was material, and, in the present context, is decisive.

While the State complaint did allege that ATI was injured by PIPR’s dissemination of adverse aerosol publicity in furtherance of the Defense Council’s program, the complaint contained not even a hint that the information conveyed was false, much less knowingly so. Instead, the claim was solely and explicitly that it was antiaerosol. Indeed, a fair reading of the complaint shows an attempt to state a cause of action, not for defamation, but for prima facie tort — the infliction of intentional harm. And, as to unfair competition, no matter how adverse their aerosol campaign, the defendants were not competitors of ATI, did not work for competitors of ATI and were not attempting to appropriate to themselves any profit, property or advantage belonging to ATI. Therefore, unlike the Federal action in which too no claim of unfair competition was discernable, but where the defamation allegation triggered the duty to defend, in the State litigation there was no support for such an obligation on either account.

It follows, for these reasons, that the certified question should be answered in the affirmative and that the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order affirmed, without costs. Question certified answered in the affirmative.

      . In addition to Ruder & Finn, the policy covered “any affiliate or subsidiary corporation which it owns or controls as they are now or may hereafter be constituted”. Any “employee ** * * partner, executive officer or director thereof * * * acting within the scope of his duties” was also insured.

      . The policy’s complete description of the conduct it covers is:
      “1. To pay on behalf of the Insured all sums which- the Insured shall become obligated to pay by reason of the liability imposed upon him by law, or assumed by him under contract as defined herein, as the result of any final judgment for money damages resulting from:
      “(a) libel, slander, defamation or
      “ (b) any infringement of copyright or of title or of slogan or
      “(c) piracy, plagiarism, or unfair competition or idea misappropriation under implied contract or
      “(d) any invasion of rights of privacy committed or alleged to have been committed in any advertisment, publicity article, broadcast or telecast and arising out of the Insured’s business of Advertising Agents.
      “2. To defend, in the name and on behalf of the Insured, any suit seeking damages for any of the above causes, even if such suit is groundless, false or fraudulent.”

      . Because PIPR was neither an affiliate nor a subsidiary of Ruder & Finn, it was not an insured party under the Libel Policy (see n 1, infra).

      . The decision of the District Court (76 Civ 74, March 6, 1976 [Owen, J.]) finding no cause of action for antitrust violations is apparently not officially reported.

      . As indicated before our court, the parties only argued whether a cause of action for prima facie tort was pleaded. However, it may he noted, in connection with a later point, that Special Term had read the pleadings as purporting to assert four possible theories of recovery: conspiracy, duress, defamation and prima facie tort. Nevertheless, in opposing defendant’s successful motion to dismiss the complaint in that court, ATI, in hewing closely to the line that the “true nature” of its complaint was “prima facie tort”, insisted that any assertion that it sounded in either “conspiracy, duress and defamation” was “incorrect”. It also specifically repeated that the complaint did not allege “defamation”.

      . Plaintiff alleged that it had expended $74,966.18 for counsel fees and disbursements in the defense of the underlying cases. Notwithstanding this specific damages allegation, however, it is not entirely clear from the face of the complaint in the present action whether plaintiff sues for breach of contract or for declaratory judgment. However, since the two courts below elected to treat it as one seeking a declaration of rights under the insurance policy and the appeal is here on a certified question, we see no reason to alter this pleading posture.

      . We find without merit the insured’s contention that its insurer is estopped, because of the application of the now largely supplanted common-law practice of “vouching-in” (3 Carmody-Wait 2d, NY Frac, § 19:132), from challenging Special Term’s comment in the original State court action that the complaint’s allegations evidenced an intention to plead defamation. There is, however, no need to pass on whether “vouching-in” would ever apply in these circumstances, for ATI’s consistent and persistent denials of any assertion of a claim of defamation (see n 4, infra) rendered Special Terms’ statements mere dictum and not binding on the parties in any event.


author:
      Per Curiam.
     Jasen, J.

text:
    The People of the State of New York, Respondent, v Paul Ira Ferber, Appellant.
    Argued April 2, 1981;
    decided May 12, 1981

      POINTS OF COUNSEL

      Herald Price Fahringer, Paul J. Cambria, Jr., and Barbara Davies Eberl for appellant.
    I. Section 263.15 of the Penal Law is patently unconstitutional because it omits the constitutional requirement that a child’s sexual performance be obscene. (Graham v Hill, 444 F Supp 584; St. Martin’s Press v Carey, 440 F Supp 1196, 605 F2d 41; Erznoznik v City of Jacksonville, 422 US 205; Bigelow v Virginia, 421 US 809; Doran v Salem Inn, 422 US 922; Grayned v City of Rockford, 408 US 104; Gooding v Wilson, 405 US 518; Coates v City of Cincinnati, 402 US 611; Dombrowski v Pfister, 380 US 479; United States v Raines, 362 US 17.) II. Prejudicial comments made by the prosecutor during the summation denied appellant his right to a fair trial guaranteed by the Sixth and Fourteenth Amendments and require that the judgment of conviction be reversed. (People v Garcia, 40 AD2d 983; People v Lombardi, 20 NY2d 266; People v Streeter, 67 AD2d 877; People v Slaughter, 28 AD2d 1082; Viereck v United States, 318 US 236.) III. The court committed reversible error in shifting the burden of proof when it refused to charge the jury that the prosecution had to prove, beyond a reasonable doubt, that the players in the films were under the age of 16. (Matter of Winship, 397 US 358; People v Brown, 25 NY2d 374; People v Guarino, 56 AD2d 638; People v Miller, 247 App Div 489; Patterson v New York, 432 US 197; Mullaney v Wilbur, 421 US 684; Dunn v Perrin, 570 F2d 21; People v Tucker, 47 AD2d 583; People v Marks, 146 App Div 11; People v Fields, 174 Misc 309.)

      Robert M. Morgenthau, District Attorney (Donald J. Siewert and Robert M. Pitler of counsel), for respondent.
    I. The evidence established beyond a reasonable doubt appellant’s guilt of promoting a sexual performance by a child. II. Section 263.15 of the Penal Law, which was enacted to prevent commercial sexual exploitation of children, is constitutional. (Police Dept. of Chicago v Mosley, 408 US 92; St. Martin’s Press v Carey, 440 F Supp 1196, 605 F2d 41; People v Davis, 43 NY2d 17, 435 US 998; Matter of Van Berkel v Power, 16 NY2d 37; Communications Assn. v Douds, 339 US 382; Kovacs v Cooper, 336 US 77; East N. Y. Sav. Bank v Hahn, 293 NY 622, 326 US 230; People v Broadie, 37 NY2d 100, 423 US 950; Lincoln Bldg. Assoc. v Barr, 1 NY2d 413; Broadrick v Oklahoma, 413 US 601.) III. Appellant has failed to preserve a question of law with respect to his contention that he was deprived of a fair trial by the prosecutor’s argument, in summation, that the jury must apply contemporary community standards in determining whether the films were patently offensive. In any event, appellant was not deprived of a fair trial by the prosecutor’s argument. (People v Heller, 33 NY2d 314; Miller v California, 413 US 15; Smith v United States, 431 US 291; Pinkus v United States, 436 US 293; People v Liccione, 50 NY2d 850; People v Martin, 50 NY2d 1029; People v Crimmins, 36 NY2d 230.) IV. The jury was properly instructed that the prosecution bore the burden of proving beyond a reasonable doubt that the children in the films were less than 16 years old.

      Henry R. Kaufman for Association of American Publishers, Inc., and another; Kenneth P. Norwich for New York Civil Liberties Union, and Roy Gainsburg for St. Martin’s Press, Incorporated, amici curiae.

    I. Section 263.15 of the Penal Law — which clearly applies to nonobscene expression — is an unconstitutional prohibition of protected speech. (Stromberg v California, 283 US 359; Cohen v California, 403 US 15; Police Dept. of Chicago v Mosley, 408 US 92; Consolidated Edison v Public Serv. Comm., 447 US 530; Chaplinsky v New Hampshire, 315 US 568; Gooding v Wilson, 405 US 518; Hess v Indiana, 414 US 105; Miller v California, 413 US 15; St. Martin’s Press v Carey, 440 F Supp 1196; Graham v Hill, 444 F Supp 584; Bellanca v New York State Liq. Auth., 50 NY2d 524.) II. By prohibiting nonobscene speech, section 263.15 violates the principle that where First Amendment freedoms are at issue, the Legislature must adopt the least restrictive means of accomplishing its purpose. (Shelton v Tucker, 364 US 479; St. Martin's Press v Carey, 440 F Supp 1196; First Nat. Bank of Boston v Bellotti, 435 US 765; Cohen v California, 403 US 15; Consolidated Edison v Public Serv. Comm., 447 US 530; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; Spence v Washington, 418 US 405.)
   OPINION OF THE COURT

Per Curiam.

Based on the sale of two films to an undercover New York, City police officer, defendant was indicted on two counts of promoting an obscene sexual performance by a child (Penal Law, § 263.10) and two counts of promoting a sexual performance by a child (Penal Law, § 263.15). Prior to trial he moved to dismiss the charges on the ground, among others, that the latter statute (Penal Law, § 263.15) was unconstitutional. The motion was- denied. A jury subsequently acquitted the defendant of the obscenity charges, but found him guilty of both counts of promoting a sexual performance by a child.

The Appellate Division affirmed the conviction, without opinion. The defendant appeals. The primary question is whether section 263.15 of the Penal Law on its face infringes rights guaranteed by the First Amendment.

At the outset we note that where First Amendment rights are in issue, a party generally has standing to challenge a statute on its face, that is, as applied to other cases (Broadrick v Oklahoma, 413 US 601, 611). Although this type of broad attack is more limited when the statute regulates or proscribes conduct as opposed to “pure speech” (ibid., at pp 614-615), the statute at issue here is clearly aimed at books, films and other traditional forms of expression (see Penal Law, § 263.00, subd 4) as is evident from the defendant’s indictment and conviction.

Section 263.15 of the Penal Law is part of a statutory scheme enacted in 1977. The stated purpose is to protect children from exploitation in sexual performances (L 1977, ch 910, § 1). The use of a child less than 16 years of age in a sexual performance is prohibited by section 263.05 of the Penal Law. Those who promote such performances are also subject to prosecution. Section 263.10 of the Penal Law makes it a class D felony to promote an obscene sexual performance involving a child. Section 263.15 of the Penal Law provides a similar penalty for promoting any sexual performance by a child.

It is evident from the statutory scheme that the statute at issue in this case (Penal Law, §263.15) is not directed at obscene performances which, as noted, are proscribed by the preceding section (Penal„Law, § 263.10). In fact if section 263.15 serves any independent purpose, its goal must be to prohibit nonobscene sexual performances involving children. Thus on its face the statute would prohibit the showing of any play or movie in which a child portrays a defined sexual act, real or simulated, in a nonobscene manner. It would also prohibit the sale, showing, or distributing of medical or educational materials containing photographs of such acts. Indeed, by its terms, the statute would prohibit those who oppose such portrayals from providing illustrations of what they oppose. In short, the statute would in many, if not all, cases prohibit the promotion of materials which are traditionally entitled to constitutional protection from government interference under the First Amendment.

A court should, of course, interpret a statute so as to avoid constitutional infirmities, if at all possible (see, e.g., Matter of Lorie C., 49 NY2d 161, 171). In this case, however, it is not possible to save section 263.15 by limiting its application to those who promote obscene performances. The fact that such activity is already proscribed by section 263.10 indicates that the Legislature did not intend the statute now before us to be similarly limited in its application. To read the two statutes as covering the exact same activity would, in any event, effectively invalidate section 263.15 by rendering it meaningless.

Nevertheless, the District Attorney urges that “the issue here is not one of censorship. Rather, promotion of these materials is prohibited in order to protect the children from the sexual exploitation necessarily involved in the production of such materials.” In other words the purpose of the statute is not to protect the audiences from viewing offensive materials, but to protect the performers from being exploited by removing the commercial incentive for such productions. Given that objective it is urged that any question as to whether the material is obscene is not determinative because the Legislature could reasonably conclude that the effect on a child is no less damaging when the finished product happens not to be obscene.

By the same token the effect on freedom of expression is the same whether the government bluntly seeks to censor what it finds offensive, or more benignly acts to protect the health and welfare of the performers. Thus no matter what the government’s objective, First Amendment standards remain applicable whenever the effect of a government regulation is to curtail protected modes of expression (see, e.g., People v Remeny, 40 NY2d 527). However, as the District Attorney notes, First Amendment rights are not absolute and may on occasion be outweighed by superior governmental interests.

The State has a legitimate interest in protecting the welfare of minors within its borders, and, at times, that interest may transcend First Amendment concerns (see, e.g., Prince v Massachusetts, 321 US 158). The statute at issue in this case would go further, if as the District Attorney urges it is designed to protect children employed in the making of plays, films and books. With respect to recorded performances or photographs the statute draws no distinction between those made in this State and those made elsewhere. Anyone who promotes such materials would be subject to prosecution even though the act recorded may have occurred in another State or country where such conduct may not be prohibited. It applies equally to a live performance of a Broadway play and a filmed report of New Guinea fertility rites. Indeed in this case defendant’s conviction did not rest on any contention that the film was made in this State. To the extent the statute would purport to regulate the sexual performances of children throughout the world there is some question as to whether that goal, however commendable, necessarily comes within the police powers of the State of New York.

Equally troublesome is the means adopted by the State to accomplish its purpose. The State contends, in essence, that it may prohibit the sale, showing, distribution, or other promotion of any film, or other visual materials, whenever the making of the film necessarily involved a violation of some other law designed to protect the performers, at least youthful performers, from a danger to their health and well-being. Assuming, without deciding, that the Legislature generally has the power to do this consistent with the First Amendment, the fact remains that it has not done so uniformly in this. State. Section 263.15 does not prohibit the knowing sale or promotion of any film, or other item, in which a child has performed a dangerous stunt or where production required a child to engage in any of the numerous activities which the Legislature in the exercise of its police power has determined is dangerous to the health or well-being of child employees or employees generally (see, e.g., Penal Law, § 260.10, subd 1; Labor Law, § 130 et seq.; Education Law, § 3215 et seq.; § 3228 et seq.; cf. Penal Law, § 245.05, subds 2, 3). The severe penalties imposed by section 263.15 of the Penal Law are reserved for those who promote plays, films, books and photographs, dealing with adolescent sex in a nonobscene manner. Thus to the extent that section 263.15 is designed to protect child employees from engaging in acts which the Legislature has found to be dangerous to their well-being the statute is “strikingly underinclusive” (Erznoznik v City of Jacksonville, 422 US 205, 214). In short, the statute discriminates against films and other visual portrayals of nonobscene adolescent sex solely on the basis of their content, and since no justification has been shown for the distinction other than special legislative distaste for this type of portrayal, the statute cannot be sustained (Erznoznik v City of Jacksonville, supra, at p 215).

In conclusion it is important to emphasize that the statute considered in this case (Penal Law, § 263.15) does not deal with child pornography. Those who employ children in obscene plays, films and books, are still subject to prosecution as are those who sell or promote such materials (see Penal Law, §§ 263.05, 263.10). We merely hold that those who present plays, films, and books portraying adolescents cannot be singled out for punishment simply because they deal with adolescent sex in a realistic but nonobscene manner.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

Jasen, J.

(dissenting). The majority today holds that the State of New York is without power to prohibit the dissemination of films depicting children of tender years engaging in actual or simulated sexual intercourse, sodomy, sexual bestiality, masturbation, sado-masochistic abuse or lewd exhibition of the genitals unless the child’s “performance” is determined to be legally obscene. The majority has apparently taken the view that the State’s interest in preventing the severe emotional and psychological damage to our children which will result from this base and degrading sexual exploitation is outweighed by the First Amendment right of “expression” of those who promote the distribution of such sexually exploitative material. I cannot agree.

In recent years,, there has been a growing public awareness of the increased use of young children in poronographic and sexually exploitive material. Outraged by this abuse of our children, the Legislature enacted section 263.15 of the Penal Law, among others, to eliminate this exploitation of our children and to curb this burgeoning industry.* The statute states: “A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age.” Another statute defines “sexual conduct” as “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals” and defines “performance” as any “play, motion picture, photograph or dance” or “any other visual representation exhibited before an audience.” (Penal Law, § 263.00, subds 3, 4.) Section 263.15 makes illegal the dissemination, sale or other “promotion” of such sexual “performances” by children whether the performance is obscene or hot.

Unlike an obscenity statute, section 263.15 is not concerned with the effect of this sexually exploitive material upon the community. Instead, it is primarily concerned with the effect which the depicted conduct has on the children involved. It seeks to inhibit the maintenance of a market which fills the commercial coffers of those who sexually abuse and commercially exploit our children and prohibits conduct — the promotion of sexual performances— which effectively maintains that market.

While it may be conceded that this statute acts to limit the First Amendment rights of promoters of such sexually exploitive material, in my view, this narrow infringement upon the freedom of expression of purveyors of such material is amply justified by the compelling interest of the State in preventing a practice which encourages and, indeed, financially underwrites the sexual abuse and exploitation of our children.

It has long been recognized by the Supreme Court of the United States that the right to freedom of expression embodied in the First Amendment to the Constitution is not absolute. Restraints upon the mode of expression (United States v O’Brien, 391 US 367), the time, place and manner of expression (Adderly v Florida, 385 US 39; Cox v Louisiana, 379 US 559; Kovacs v Cooper, 336 US 77) and indeed, even on the substantive content of the expression itself (see, e.g., Roth v United States, 354 US 476; Chaplinsky v New Hampshire, 315 US 568; Schenck v United States, 249 US 47), have been found to be constitutionally permissible in certain circumstances. The governmental interest which must be shown to justify a particular restraint varies according to the type of restraint imposed.

Time, place or manner restrictions, for example, may be justified upon a showing that such regulations serve a “significant governmental interest and leave ample alternative channels for communication.” (Consolidated Edison v Public Serv. Comm., 447 US 530, 535.) Restrictions upon the mode of expression, on the other hand, are subject to a slightly different standard. Where expressive conduct contains both “speech” and “non-speech” elements, the governmental interest in the regulation of the “non-speech” component of the conduct can justify incidental limitations on the actor’s freedom of speech. The governmental interest required for this sort of modal limitation is a “substantial governmental interest” which is “unrelated to the suppression of free expression.” (United States v O’Brien, 391 US 367, 376-377, supra.) The strictest standard is applied to content-based restrictions. (First Nat. Bank of Boston v Bellotti, 435 US 765, 786.) Where such restrictions are placed upon the speech of private persons, “the state action may be sustained only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest.” (Consolidated Edison v Public Serv. Comm., 447 US 530, 540, supra.) Thus, in order to determine whether a particular restraint is permissible, we must first examine the nature of the restraint and then determine whether a sufficient governmental interest justifying the limitation of freedom of expression has been demonstrated.

The restraint upon freedom of expression imposed by section 263.15 of the Penal Law is quite limited. The statute does not restrict in any manner frank discussion of the issue of teen-age sexuality or any other issue. It does not purport to limit what may be said or what ideas may be expressed. Instead, it limits only the mode of expression, by requiring that the bodies of our children not be used in expressing one’s ideas, and effectuates this requirement by proscribing the sale of films which depict children of tender years engaging in certain sexual acts.

This limitation on the speaker’s mode of expression, as noted earlier, is justified if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtheranee of that interest.” (United States v O’Brien, 391 US 367, 377, swpra; see, also, Giboney v Empire Stor. Co., 336 US 490.) In my opinion, the People have adequately demonstrated that this standard has been met.

There can be no question that the State’s interest in the protection of the psychological and emotional welfare of children is substantial and unrelated to the suppression of free expression. The State’s overriding interest in the welfare of children has been recognized in many contexts and is often relied upon by the Legislature to protect children from their own inexperience or as a basis for denying adults rights which they might otherwise have because the exercise of those rights might cause harm to children. For example, the child labor laws restrict the ability of adults to engage children in Certain occupations (Labor Law, §§ 130-133) or to employ them at certain times (Labor Law, §§170-173; see, also, Education Law, § 3215 et seq.; § 3228 et seq.). We limit the applicability of contract law in relation to infants (Casey v Rastel, 237 NY 305; Restatement, Contracts 2d, § 18 B) and soften the impact of the criminal law upon them (Penal Law, § 30.00; CPL art 720; Family Ct Act, art 7). The law restricts a child’s right to marry (Domestic Relations Law, § 15-a). We restrict a child’s ability to drive a car (Vehicle and Traffic Law, § 502, subd 2). All this we do to protect our children. The well-being of children is a subject long recognized as within a State’s constitutional power to regulate.

Nor is it a novel proposition that the rights protected by the First Amendment should be restricted when the exercise of those rights might endanger the welfare of a child. In Prince v Massachusetts (321 US 158), the United States Supreme Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute’s infringement on First Amendment freedoms. Also, in Ginsberg v New York (390 US 629), a proscription against the distribution of nonobscene literature to children was upheld. (See, also, FCC v Pacifica Foundation, 438 US 726.) It would seem clear that the State’s interest in the prevention of abuse of children in the creation of sexually exploitive literature involving children is at least as compelling as the interest in preventing them from reading it.

It is argued, however, that section 263.15 of the Penal Law cannot achieve that end, for it is not directed at the creators but, rather, at the promoters of such material. I disagree. The creators of such material can only practice their “craft” so long as a market is maintained for their end product. The proscription embodied in section 263.15 is an attempt to prevent the maintenance of such a market. The Legislature has apparently taken the view that no more narrowly drafted statute will achieve an adequate level of protection for our children, and that a proscription of the promotion of such sexually exploitive material involving children is essential.1 am persuaded that this conclusion is correct and that the prohibition on promotion of such material causes an incidental restriction on alleged First Amendment freedoms which is no greater than is essential to the furtherance of the State’s compelling interest in preventing the use of children in sexually exploitive material.

Moreover, even if I were to agree that section 263.15 is a “content-based” restriction, I would still conclude that the statute is constitutional. The most priceless possessions we have in this Nation are our children. It seems to me that the State’s interest in protecting children is so compelling that even a direct restraint would be permissible. In my opinion, there is a “clear and present danger” that the promotion of a “sexual performance” by a child will bring about the substantive evil — child abuse — which the Legislature has a right to prevent. (Schenck v United States, 249 US 47, 52, supra.)

Further, I cannot agree with the majority’s conclusion that the statute is unconstitutionally overbroad. It is argued that the wording of the statute is so broad that it brings within its proscriptive scope medical and scientific journals, news documentaries and other socially beneficial literature. In my opinion, however, the statute need not be read so broadly. It is aimed at the commercial sexual exploitation of our youth and can be narrowly construed by this court to reach only such sexually exploitive material. Since the statute is subject to a narrowing construction, it should not be struck down as overboard on its face. As the United States Supreme Court has stated: “[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech’ toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect —at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.” (Broadrick v Oklahoma, 413 US 601, 615.) It seems to me that the potential for infringement upon legitimate speech inherent in the proscription embodied in section 263.15 of the Penal Law is quite small and can adequately be addressed by this court when the need arises. Hence, I would not hold the statute to be unconstitutionally overbroad.

Nor do I agree that the statute is fatally "underinclusive” as the majority suggests. The Legislature need not prohibit the promotion of all products of illegal child labor in order to prohibit any. (Erznoznik v City of Jacksonville, 422 US 205, 215.) While it is true that the presumption of statutory validity has less force where a content-based classification is involved, such a classification can be upheld where “there are clear reasons for the distinctions.” (Id.) The very real danger of severe psychological and emotional injury which will result from the maintenance of a market for sexually exploitive material involving children is such a “clear reason”. Moreover, as I have previously noted, in my opinion the statute does not prohibit the expression of any particular idea or message and is not a content-based restriction.

Finally, the majority suggests, without citation of authority, that the potential extraterritorial effect of the statute somehow renders it invalid. To be sure, there is authority for the proposition that one State may not prohibit a citizen of a sister State from disseminating information about activity which is legal in the sister State. (Bigelow v Virginia, 421 US 809, 824-825.) However, this is not the effect of section 263.15 of the Penal Law. Much more than the dissemination of information is involved. The conduct prohibited causes a market for sexually ex-ploitive material involving children to be maintained in New York. The maintenance of this market leaves open the financial conduit by which the production of such material is funded and materially increases the risk that New York children will be injured. In short, the production of such material outside New York for sale here causes harm in New York and is, therefore, subject to the police power of the State of New York at least insofar as that power operates upon the promotion of such material here. (Cf. Strassheim v Daily, 221 US 280, 285; Hyde v United States, 225 US 347, 362-363; see, also, Skiriotes v Florida, 313 US 69, 74-76; Ford v United States, 273 US 593, 620-624.)

Accordingly, for all of the above reasons, I would affirm the order of the Appellate Division and uphold the constitutionality of section 263.15 of the Penal Law.

Chief Judge Cooke and Judges Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Jasen dissents and votes to affirm in a separate opinion in which Judge Gabrielli concurs.

Order revsered, etc.

      . A Federal court found the statute unconstitutional in St. Martin’s Press v Carey (440 F Supp 1196). Although that judgment was set aside on appeal on the ground that there was an insufficient likelihood of prosecution (605 F2d 41), that cannot be said in this case.

      . Section 263.15 of the Penal Law states: “A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age.” The definitions provided in section 263.00 of the Penal Law indicate that “sexual conduct” includes specified acts real or simulated (subd 3), and that a performance includes any play, motion picture, photograph, dance and “any other visual representation exhibited before an audience” (subd 4).

      . Neither was there any contention that the film was made after the statute went into effect.

      . The subject has received much attention in the media. (“60 Minutes”, Vol IX, No. 33, a broadcast on the CBS Television Network entitled “Kiddie Porn”, May 15, 1977, as reprinted in Protection of Children Against Sexual Exploitation, Hearings before the Subcomm to Investigate Juvenile Delinquency of the Senate Comm on the Judiciary, 95th Cong, 1st Sess, at p 123; Chicago Tribune [a series of articles], May 15,1977, at p 1, col 1; May 16, 1977, at p 1, col 1; May 17, 1977, at p 1, col 1, reprinted in Sexual Exploitation of Children, Hearings Before the Subcomm on Crime of the House Comm on the Judiciary, 95th Cong, 1st Sess, at pp 428-442; Child’s Garden of Perversity, Time, April 4, 1977, at p 55; see Protection of Children From Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U of Mich J of L Reform 295.) I note also that the characterization of such material as “pornographic” does not necessarily imply that it is “legally obscene”. While it is fair to say that most obscene material is pornographic, the converse is not necessarily true, for a given performance’s “obscenity” in a legal sense depends upon the standards of the community in which it finds itself.

      . One researcher, Robin Lloyd, in his book For Love or Money: Boy Prostitution in America, has documented the existence of over 260 so-called “boy” and “girl” magazines, with titles such as “Torrid Tots”, “Night Boys”, “Lolita”, “Boys Who Love Boys”, and “Children Love”. (Lloyd, For Love or Money: Boy Prostitution in America, at p 226; see Senate Comm on the Judiciary, Protection of Children Against Sexual Exploitation Act of 1977, S Rep No. 95-438, 95th Cong, 1st Sess, at pp 5-6; see, also, Free Speech and Self-Incrimination: The Constitutionality of California’s New Child Poronography Laws, 10 Pacific L J 119.)

      . The Legislature set forth its intent in section 1 of chapter 910 of the Laws of 1977, as follows:
      “Section 1. Legislative declaration. The legislature finds that there has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances.
      “The legislature further finds that the sale of these movies, magazines and photographs depicting the sexual conduct of children to be so abhorrent to the fabric of our society that it urges law enforcement officers to aggressively seek out and prosecute both the peddlers of children and the promoters of this filth by vigorously applying the sanctions contained in this act.”

      . It is noteworthy also that the statute does not prohibit the depiction of nudity per se, even when the body of a child is depicted. Instead, it prohibits only depiction of children engaging in certain sexual acts including lewd exhibition of the genitals.

      . The commercial revenue which the promoters of this sexual exploitation of our children derive from their activities is staggering. (Senate Comm on the Judiciary, Protection of Children Against Sexual Exploitation Act of 1977, S Rep No. 95-438, 95th Cong, 1st Sess, at p 6; see, also, Pope, Child Pornography: A New Role for the Obscenity Doctrine, 1978 U of 111 L Forum, 711, 713-716; Comment, Preying on Playgrounds: The Sexploitation of Children in Pornography and Prostitution, 5 Pepperdine L Rev 809, 812-814.) Given the tremendous profit potential inherent in the production of such material, it is quite reasonable to assume that the production of such material will not abate until the market which underwrites it is eradicated.

      . I note that defendant did not assert that the statute was invalid due to its extraterritorial effect. Thus, he has failed to preserve this issue and we need not reach it on this appeal. I address this unpreserved issue only because the majority has chosen to premise its reversal in part upon this ground.