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Erie County Convicted 11 People of Violating a Law Ruled Unconstitutional Over 20 Years Ago by Federal Court

by Kevin Bliss

Erie County, New York, wrongfully convicted 11 people under a law that was ruled unconstitutional over 20 years ago — yet is still listed in the state’s penal code and being enforced. 

District Attorney John J. Flynn stated that the county never received notification sent out by then-State Attorney General Dennis Vacco announcing that the U.S. District Court ruled the statute governing the dissemination of indecent material to minors via the internet, N.Y. Penal Law § 235.21(3), overly broad and violates the Commerce Clause of the U.S. Constitution and ordered a permanent injunction barring enforcement of the statute.

This situation came to light when Cameron Stroke, a West Seneca resident, was suspected of child exploitation in 2011. Investigators requested a search warrant for Stroke’s home premised on a violation of the statute in question. Stroke’s laptop and other material were confiscated by the state police and turned over to the FBI when it was determined that it would become a federal investigation.

Stroke’s attorney, James Harrington, entered a motion to have all of the evidence suppressed. He argued that the warrant was based on a law that Judge Loretta Preska ruled was unconstitutional in the 1997 case American Library Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997), because it could potentially affect harmless communications.

When questioned, Flynn stated that the county had no record of ever receiving notification of the injunction. He said he was not even aware of it until he was subpoenaed in Stroke’s case. He said his office no longer enforces the statute and that he has sent letters to local police departments to discontinue charging under it as well. He said they would entertain legal attempts to overturn convictions based on violating the statute since 1997. Erie County has charged 25 people with violation of the statute since the ruling and convicted 11.

U.S. Magistrate Judge Hugh Scott, presiding in Stroke’s case, said, “Those convictions will continue, at least in Erie County, because the Erie County District Attorney’s Office essentially has declared that a 21-year-old statewide injunction does not apply to it.” He is also quoted as saying, “The court is, quite frankly, disturbed at the level of negligence, to be charitable, or passive aggressive defiance, that has occurred and continues to occur.”

Investigators contend that the warrants and charges were not issued in bad faith, instead they were completely unaware of the injunction and attempted to follow the law they believed was in place.

The wrongful convictions in Erie County have led to lawsuits being filed. 


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