Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered February 14, 2011.
The opinion of the court was delivered by: Peradotto, J.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 18, 2011
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.
The judgment convicted defendant, upon his plea of guilty, of predatory sexual assault against a child.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Opinion by Peradotto, J.: The novel issue raised on this appeal from a judgment convicting defendant upon a plea of guilty of predatory sexual assault against a child (Penal Law § 130.96) is whether County Court erred in refusing to suppress evidence uncovered as a result of a January 2010 search of property that had been seized from defendant pursuant to a May 2009 warrant. For the reasons that follow, we conclude that the court properly refused to suppress that evidence. Factual and Procedural Background In 2008 and early 2009, an undercover State Police investigator worked to identify individuals sharing child pornography on the internet over peer-to-peer file sharing networks. A certain IP address was a download candidate for suspected child pornography files over 40 times between February 18, 2009 and March 3, 2009, and the investigator confirmed that three specific images associated with that address contained child pornography. The IP address was traced to defendant's home. Based on that investigation, the investigator applied for and obtained a warrant authorizing the search of defendant's home and the seizure of his computers therefrom, including "peripheral equipment such as keyboards, printers, modems, scanners, or digital cameras and their internal or external storage media." When the warrant was executed on May 5, 2009, a "limited preview" of defendant's computer revealed an image of an unknown female child performing oral sex on a male adult. Defendant was arrested, and the police seized various items of electronic equipment belonging to him, including a computer and two digital cameras.
Shortly after his arrest, defendant's employer contacted the District Attorney's Office and indicated that defendant had worked with children in the course of his employment, that he had displayed a particular interest in one child, and that other children had reported that defendant may have photographed them. Unbeknownst to the Assistant District Attorney (ADA) assigned to defendant's case, the property seized from defendant in May 2009 was not promptly subjected to a full forensic examination by the State Police Crime Laboratory. Thus, mistakenly believing that the evidence against defendant was limited to the single image of child pornography discovered during execution of the search warrant, and apparently concerned about speedy trial issues, the ADA offered defendant a sentence promise of six months in jail and 10 years of probation in exchange for a plea of guilty to possessing a sexual performance by a child (see Penal Law § 263.16). Defendant accepted the offer, pleaded guilty to a superior court information on September 17, 2009, and was sentenced as promised on November 2, 2009.
After sentencing, defendant's attorney contacted the ADA and requested the return of defendant's property seized pursuant to the May 2009 warrant. Prior to releasing the property, however, the ADA instructed the State Police to examine it to ensure that no contraband was returned to defendant. In January 2010, a State Police investigator found hundreds of pornographic images and videos of children on defendant's computer, as well as a "deleted video clip" on one of defendant's cameras. The investigator recovered 353 still-frame images from the deleted video clip, depicting the penis of an adult male in the mouth of an autistic male child who appeared to be less than 12 years old and resided in a group home where defendant worked (hereafter, victim). The external hard drive of defendant's computer contained other images, both pornographic and otherwise, of defendant and the victim. A physical examination of defendant in March 2010 confirmed that defendant had a birthmark on his penis matching that of the adult male in the images recovered from the deleted video clip. State and federal prosecutions ensued.
On August 5, 2010, defendant was indictedon one count of predatory sexual assault against a child (Penal Law § 130.96) and four counts of criminal sexual act in the first degree (§ 130.50 ). The acts underlying the predatory sexual assault count and the first criminal sexual act count were alleged to have occurred "on or about and between September 25, 2006 through and including December 25, 2007." The acts underlying the remaining criminal sexual act counts were alleged to have occurred between September 15, 2005 and December 25, 2007. By way of omnibus motion, defendant sought, inter alia, dismissal of the indictment based upon CPL 40.40. Defendant also sought to suppress the evidence seized from his computer and cameraon the ...