People v. Apelbaum

• Decision Date: 27 July 2011
• Citation: 930 N.Y.S.2d 401,33 Misc.3d 4,2011 N.Y. Slip Op. 21267
• Parties: The PEOPLE of the State of New York, Respondent,v.Jacob T. APELBAUM, Appellant.
• Court: New York Supreme Court — Appellate Division

33 Misc.3d 4

930 N.Y.S.2d 401

2011 N.Y. Slip Op. 21267

The PEOPLE of the State of New York, Respondent,

v.Jacob T. APELBAUM, Appellant.

Supreme Court, Appellate Term, New York.9th and 10th Judicial Districts.

July 27, 2011.

Thomas J. Spota, District Attorney, Riverhead (Karla Lato of counsel), for respondent.Laurie S. Hershey, Manhasset, for appellant.Present: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.

ORDERED that the judgment of conviction is affirmed.

On February 23, 2007, a federal magistrate authorized a search warrant, to be executed at defendant's home, to seize computers, software, peripheral computer devices pertaining to data storage, business records, and other items, in relation to an unauthorized electronic intrusion into the computer business data files maintained by a corporation where defendant had worked as a computer information technology developer and which employment had recently ended ( see 18 USC § 1030[a][2][A] ). The supporting affidavit by a federal Secret Service agent stated, among other grounds, that defendant had sent an e-mail to a person employed by the corporation from the same IP (Internet Protocol) address used by the intruder. Less than an hour later, from the same IP address, using an administrator username, someone had invaded customer credit card files, downloaded sensitive data via a server developed by a team led by defendant, and accessed another company computer through a portal developed by defendant for a corporate client. The warrant was executed, in the course of which a police officer recovered a Beretta handgun. The People charged defendant with criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1] ).

Defendant moved to controvert the warrant, both on the ground that the affidavit “included statements that were deliberate falsehoods and were made with a reckless disregard for the truth,” namely, that the IP address of the intruder's computer was at defendant's home ( see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 [1978]; People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 [1965] ), and because the affidavit failed to establish probable cause to believe that evidence of the intrusion could be found at defendant's home. The District Court denied the motion for a Franks / Alfinito hearing and, after a probable cause hearing at which it denied defendant's application for an adjournment to produce an expert witness, found the warrant affidavit sufficient and denied the motion. Defendant was convicted, upon a jury verdict, of criminal possession of a weapon in the fourth degree. Defendant appeals, and we affirm.

Defendant's motion for a Franks / Alfinito hearing was properly denied. To obtain a hearing, a defendant ( People v. Cohen, 90 N.Y.2d 632, 638, 665 N.Y.S.2d 30, 687 N.E.2d 1313 [1997] ) must make a “substantial preliminary showing” that the affidavit contained material false statements made knowingly, intentionally, or with reckless disregard for the truth ( People v. McGeachy, 74 A.D.3d 989, 990, 902 N.Y.S.2d 186 [2010]; People v. Rhodes, 49 A.D.3d 668, 669, 853 N.Y.S.2d 375 [2008]; People v. Tordella, 37 A.D.3d 500, 829 N.Y.S.2d 602 [2007] ). Here, defendant argued that the IP address alleged to represent the source of the illegal intrusion into the corporation's computer files was not located at defendant's home, but elsewhere, and that if the affiant assumed to the contrary, it could only have been the result of the reckless failure properly to investigate the truth, or if the address was properly investigated, was asserted with a knowing disregard for the truth. A review of the affidavit submitted in support of the warrant does not support that claim.

Defendant asserted that the affiant lacked sufficient grounds for the purpose of obtaining a search warrant to establish the IP location at defendant's home. Even if it can be shown that the IP could not be associated with defendant's home, there is no evidence that the agent knew or should have known that fact at the time the warrant was authorized. Indeed, the affiant did not make this assertion. Rather, she alleged that the evidence connected defendant with the intrusion, and made the general observation that, in her experience, such intrusions are usually launched from the intruder's home. These circumstances do not constitute the substantial preliminary showing of material falsehoods or a reckless disregard of the truth required for a hearing ( People v. McGeachy, 74 A.D.3d at 990, 902 N.Y.S.2d 186).

Moreover, knowledge of the precise geographical location of the IP address at the time the warrant was authorized was not critical to the warrant's validity. A presumption of validity attaches to a warrant ( People v. Johnson, 66 N.Y.2d 398, 405, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] ), and a review of the sufficiency of a supporting affidavit should not be conducted in a hypertechnical manner but on all of the facts and circumstances, considered collectively and in the light of everyday experience ( People v. Gramson, 50 A.D.3d 294, 295–296, 854 N.Y.S.2d 707 [...