People v. Jenny Paulino, 234 N.Y.L.J. Thursday, August 4, 2005 9 (Col.1)

New York County Supreme Court 

[This is a trial court sitting in Manahattan, not an appellate court.]

                                         New York Law Journal,Volume 234, Thursday, August 4, 2005 9 (Col. 1)






Justice Goodman

Defendant Jenny Paulino was arrested on December 3, 2004, and charged in a felony complaint with one count of promoting prostitution in the third degree N.Y. Penal Law (PL) §230.25(1) (McKinney 2004) and one count of money laundering in the first degree PL §470.20(1)(b)(i)(A) (McKinney 2004). The charges arose, respectively, from allegations that: (1) The escort service owned, operated, and controlled by the defendant was a front for a prostitution business; and (2) the unlawful business's gross earnings-which are said to exceed $2.4 million since 2000 alone-were used in financial transactions intended both to perpetuate that business and to mask the nature, location, source and ownership of the principal and the profit.

According to the felony complaint, on three separate occasions (once in 2003 and twice in 2004) undercover police officers dialed a phone number
advertised by the defendant, spoke to an office staffer, and arranged for a rendezvous with a prostitute. The rates for these encounters varied. The
"cheapest" women started at $500.00 per hour, while their more expensive co-workers commanded rates of up to $2,500. Encounters with multiple women
were said to cost as much as $3,750 per hour. These encounters took place either on property owned by the defendant or at a location specified by the officers. During these trysts, each side solicited the other to engage in some manner of sexual conduct, including oral, vagina and anal sex. Additional fees were imposed for sexual conduct not covered by the initial price quoted on the phone. On no occasion did any officer actually engage in sexual conduct of
any nature.

To pay for the services rendered, the undercover officers were afforded "discreet billing" options. When an officer availed himself of a discreet
billing option he would either receive a receipt in-hand or later see a credit card charge from a phony company-usually a graphics, consulting, or
computer company which concealed the true nature of the expense. Payments for the escort services were deposited into a Chase Bank account in
the name of J.P. Consulting, Ltd., d/b/a American Beauties, which the defendant founded in the 1990s. The Chase account was used to make direct
payments for American Beauties advertisements in publications such as New York Magazine, and on such websites as
Bolstering the charges in the felony complaint is the evidence collected by the New York Police Department in executing three search warrants on three
premises owned by the defendant (two in Manhattan and one in Florida). One search of the defendant's properties yielded spread sheets that
contained the clients' names, the names of the office staffers who arranged the meetings and the method of payment (with receipts attached to the sheet
for credit card transactions). At least one Rolodex was also found, containing clients' personal information for example whether a client had
genital warts or a dirty apartment and their sexual preferences. A search also yielded $12,000 in cash, numerous bundles of new and used credit card
receipts, envelopes containing prostitutes' names, portfolios of lingerie and bikini-clad girls, and sexual paraphernalia, including KY Jelly,
condoms, baby oil, and a red dildo.

Given such overwhelming evidence of wrongdoing, the defendant and co-defendant were indicted on two counts of money laundering in the second
degree and one count of promoting prostitution in the third degree.  Despite the grand jury testimony, which indictes the defendant with one
count of promoting prostitution in the third degree and one count of money laundering in the first degree, the defendant has moved to dismiss the
indictment on the grounds that she has been selectively prosecuted in violation of the United States Constitution's Equal Protection Clause.
There is no question that intentional or purposeful discrimination in the implementation of a facially nondiscriminatory law violates the Equal
Protection Clause. Yick Wo v. Hopkins, 118 U.S. 356 (1886). However, "[T]he conscious exercise of some selectivity in enforcement is not itself a
federal constitutional violation." Oyler v. Boles, 368 U.S. 448, 456 (1962) (noting that even though statistics might point to a policy of selective
enforcement, there are only grounds for an Equal Protection violation when that enforcement is based on an unjustifiable standard). In our judicial
system "the Government retains 'broad discretion' as to whom to prosecute." Wayte v. United States, 470 U.S. 598, 607 (1985) (explaining that the court
should avoid an examination of the basis of the charge because said inquiry "delays the criminal proceeding, threatens to chill law enforcement by
subjecting the prosecutor's motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's
enforcement policy'); see also United States v. Goodwin, 457 U.S. 368, 380 (1982).

If selective prosecution is alleged, it must be decided along "ordinary equal protection standards." Wayte, 470 U.S. at 608. Moreover, "[t]he burden
of proving a claim of discriminatory enforcement is a weighty one."' People v. Blount, 231 A.D.2d 860, 861 (1996) (quoting Matter of 303 W. 42nd St.
Corp. v. Klein, 416 N.Y.S.2d 219, 224 (N.Y. 1979)). Not only is a "discriminatory purpose...not presumed," Snowden v. Hughes, 321 U.S. 1, 8
(1944), but also, "[i]n order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present 'clear
evidence to the contrary."' United States v. Armstrong, 517 U.S. 456, 465 (1996). And, even if some measure of discriminatory enforcement can be
shown, "latitude must be accorded authorities charged with making decisions related to legitimate law enforcement interests, at times permitting them to
proceed with an unequal hand." Matter of 303, 416 N.Y.S.2d at 224 ('because of limited manpower or other resource inadequacies...certain violators may
be selected for prosecution out of the class of all known violators'). For that reason, "[t]he unlawful administration by state officers of a state
statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless
there is shown to be present in it an element of intentional or purposeful discrimination." Snowden, 321 U.S. at 8.

Specifically, the defendant must show that the District Attorney's Office's scheme of enforcement "had a discriminatory effect and that it was motivated
by a discriminatory purpose." Wayte, 470 U.S. at 608. The bar for proving discriminatory purpose is high. "[It] implies more than...intent as
awareness of consequences. It implies that the decisionmaker...selected or reaffirmed a particular course of action at least in part 'because of,' not
merely 'in spite of,' its adverse effects upon an identifiable group." Wayte, 470 U.S. at 610; see also Personnel Adm'r of Mass v. Feeney, 442 U.S256, 279 (1979). That is to say, the defendant must show that the District Attorney's Office enforced a valid law "with an evil eye and an unequal
hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances." Blount, 231 A.D.2d at 861. To meet the
"evil eye" and "unequal hand" requirements, "there must not only be a showing that the law was not applied to others similarly situated but also
that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary
classification." Blount, 231 A.D.2d at 861 (emphasis added). The defendant has failed to prove either requirement.

The defendant contends that the targeting of so-called "escort services" for prosecution, while ignoring "Goliath corporations" that "conspicuously reap
huge profits from the distribution of adult films," violates the Equal Protection Clause because both enterprises are similarly situated. Mem.
Supp. Def. Mot at 3. This contention rests on the defendant's specious interpretation of 'prostitution,' which PL §230.00 defines as a person "who
engages or agrees or offers to engage in sexual conduct with another person in return for a fee."

The defendant's entire motion hinges on a single, stale, faulty, and non-precedential decision. The defendant cites People v. Kovner, 409
N.Y.S.2d 349 (N.Y. Co. 1978), for the proposition that a film-maker, who pays actors and actresses to engage in sexual conduct for "pictorial
recordation," is as guilty of promoting prostitution as are his participants. Id., at 351. Kovner concluded that "no legal distinction"
existed between a man who paid for sexual activity to be performed on him and a non-participating third party who paid for an actor to participate in
sexual activity, because both involved the essential elements of prostitution: sexual activity in exchange for a fee. Applying this interpretation of prostitution to PL §230.25(1) is novel because it eradicates the traditional bilateral notion of prostitution, which entails A paying B for sexual activity to be performed on A. Kovner, in essence, enlarged the scope of the crime to prohibit C (a non-participating, third party) from paying B for sexual activity to be
performed on A. Kovner, 409 N.Y.S.2d at 352. Post-Kovner, the floodgates were presumably opened for a torrent of prosecution against media companies for paying actors to star in pornographic motion pictures.

This flood never materialized because Kovner's definition of prostitution is as novel as it is unjustifiably broad. "The term 'prostitution' itself has a
commonly understood meaning, and the use of the term 'fee' in the statutory definition is the key to that meaning." People v. Costello, 395 N.Y.S.2d
139, 141 (N.Y. Co. 1977). Four years prior to Kovner, the New York State Supreme Court held that "[t]he fair import of the word 'fee' payment in
return for professional services rendered." People v. Block, 337 N.Y.S.2d 153, 157 (1972) (italics omitted). The Block approach to PL §230.25(1)
comports with the common-sense notion that prostitution is "the trading of 'sexual conduct' with another person for a 'fee,"' where the sexual conduct
is performed on the person who pays the fee. Donnino, William C., "Practice Commentary," PL 39 McKinney's Penal Law 248. In other words, prostitution is and has always been intuitively defined as a bilateral exchange between a prostitute and client. To assert that the legislature had a different
definition in mind-bereft of even a single citation to legislative history or precedential case-law-is, in effect, petitioning this court to capriciously attach an anomalous definition to a perfectly intuitive word in a statute. Such a result contravenes the very essence of statutory interpretation. Because the definition of prostitution is generally confined to a bilateral exchange involving only two parties, escort services and "Goliath" corporations are not similarly situated.

Block also reflects the legislative purpose in enacting PL §230. The court in People v. Medina, 685 N.Y.S.2d 599 (1999) (full citations omitted), noted
that "[t]he purpose of Article 230 is to prohibit the commercial exploitation of sexual gratification (People v. Costello) or public solicitation of a sex act for a fee. (In re Dora)." The defendant may contend that "the commercial exploitation of sexual gratification" encompasses the adult film industry, but this is based on a mis-reading of the statement. Given that Costello involved the promotion of "traditional prostitution," the word 'or' linking "commercial exploitation" and "sexual gratification" should be read as an inclusive 'and'. In other words, the purpose of PL §230.25(1) is to ban consumers, also known as "johns," from soliciting prostitutes on the street and prostitutes from soliciting johns, as the defendant in the instant case did by placing advertisements in local newspapers. Furthermore, the Medina court noted that the statute was drafted to "adapt to new methods of selling the arousal of sexual desire." Medina, 685 N.Y.S.2d at 601. That court cited "lap dancing" as an example of a new sexual act which was intended to fall under the rubric of prostitution.
Thus, this court concludes, because the pornographic motion picture industry has flourished without prosecution since its infancy, that industry was not
intended to be covered. If it had meant to be covered, the legislature would have taken up the matter long ago.

The defendant may contend that this court's interpretation of languages in the various cases can be construed to include the adult film industry, but
this very stretch of the language is indicative of the problem at hand: that existing case and statutory law does not specifically exclude the
defendant's interpretation of the law because it is so novel and counter-intuitive.

A second reason the two enterprises are not similarly situated is that the prosecuting of "Goliath corporations" poses thorny First Amendment issues,
which do not arise in prosecuting brothels. When a statute designed to stem "a social evil creates an indirect tension with the provisions of the First
Amendment, the government has the burden of establishing that its interest are legitimate and compelling and that the incidental infringement upon
First Amendment rights, if any, is no greater than essential to vindicate its subordinating interests." Kovner, 409 N.Y.S.2d at 352; See also, In re
Stolar, 401 U.S. 23 (1971); United States v. O'Brien, 391 U.S. 367 (1968). The defendant would be correct in asserting that states are granted wide
latitude in undertaking to regulate social ills, such as prostitution, and that just because the dissemination of film is constitutionally protected
"does not mean that one could with impunity hire another to commit such a crime because the primary motivation was to capture the crime on film."
Kovner, 409 N.Y.S.2d at 352 (quoting People v. Fixler, 56 Cal. App.3d 321, 326 (1976)). However, such an assertion overlooks the simple fact that the
People bear a much heavier burden when prosecuting a corporation shielded by the First Amendment than when prosecuting a brothel with no such
constitutional armor.

Finally, the two industries are not similarly situated because the prostitution laws aim to abate the underlying social ills accompanying
brothels, ills which are not perpetuated when mammoth media companies film adult entertainment. In the regulated world of the adult film industry,
actors are tested regularly for diseases. Alan Clendenning, HIV Case Airs Secrets of Porn Industry, N.Y. Times, April 29, 2004. By contrast,
prostitution brings with it a host of ills including AIDS, venereal diseases, drugs, pimping, loan sharking, physical abuse and rape. It goes without saying that the prosecution of escort services is unrelated to race or religion. At best, there is a possible argument that the law was selectively applied to the defendant based on an arbitrary classification. However, it is unclear what that classification would be, and, in any event, the defendant makes no argument to that effect.

Because the defendant has failed to make a prima facie case that the law was applied differently to others similarly situated and that the law was
selectively applied on the basis of race, religion or some other arbitrary classification, she cannot be said to have had her Equal Protection rights
violated by way of intentional and purposeful selective prosecution. The defendant's argument that an "escort service" is similarly situated to a
company like Time Warner fails because: (1) case-law, with one exception, has defined prostitution traditionally, as a bilateral exchange; (2) the New
York State Legislature intended only the traditional definition in enacting the Promoting Prostitution statute; (3) the prosecution of media
corporations would hit a First Amendment roadblock; and finally, (4) adult films financed by media corporations neither precipitate nor perpetuate the
social ills that the Promoting Prostitution statute was enacted to combat. As such, both the defendant's motion to dismiss and motion for a
fact-finding hearing must be denied. This constitutes the decision and order of this Court.

8/4/2005 NYLJ 19, (col. 1)

This case is presented to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution and Adult Entertainment, and his firm has represented many owners, employees, and customers of every kind of adult-oriented businesses, both online and in the real world, in the Greater Chicago Area, but also representing online clients from Hong Kong to Budapest. He can be reached in the office at 312 558-6420. His e-mail address is

             No Law Group Banner with New Logo