THE SEX TRAFFICKING STATUTE HAS TWO LINKED BUT DISTINCT ELEMENTS WHICH WERE PROPERLY EXPLAINED TO THE JURY IN THE INITIAL JURY INSTRUCTIONS; HOWEVER THE SUPPLEMENTAL INSTRUCTION IN RESPONSE TO A JURY NOTE ERRONEOUSLY COLLAPSED THE STATUTE TO A SINGLE ELEMENT; NEW TRIAL ORDERED ON THE SEX TRAFFICKING COUNTS (CT APP).

The Court of Appeals, in a brief memorandum, vacating the sex trafficking convictions and ordering a new trial, over two lengthy concurrences and a dissent, determined the supplemental jury instruction failed to explain to the jury that the sex trafficking statute has two linked but distinct elements which must be proven to convict. The positions taken by the concurrences differ and are too nuanced to fairly summarize here:

The sex trafficking statute is comprised of two distinct but linked elements, namely the offender must advance or profit from prostitution by one of the enumerated coercive acts (see Penal Law § 230.34). The trial court’s supplemental instruction, in response to a jury note, erroneously severed the required link between those elements. Accordingly, defendant’s sex trafficking convictions should be vacated, and a new trial held on those counts … . * * *

From Judge Singas’s Concurrence:

Collapsing sex trafficking into a single-element crime would cast too small a net, unjustifiably limiting the jurisdiction of this State to prosecute only those cases where the entire crime occurred in New York. Just as significantly, treating the statute’s two elements as unlinked could unjustifiably authorize prosecution of crimes in New York for extraterritorial conduct having no impact on the public safety of the state. Accordingly, we would hold that the sex trafficking statute is comprised of two discrete yet connected elements, to wit, the offender must advance or profit from prostitution through coercive acts taken in furtherance of his or her prostitution enterprise. People v Lamb, 2021 NY Slip Op 07057, CtApp 12-16-21