People v. O'Brien

• Decision Date: 31 December 2003
• Docket Number: 14865.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TODD O'BRIEN, Appellant.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 1222

769 N.Y.S.2d 654

2003 NY Slip Op 19911

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TODD O'BRIEN, Appellant.

14865.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 31, 2003.

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered March 28, 2003, convicting defendant upon his plea of guilty of the crimes of promoting an obscene sexual performance of a child (three counts), promoting a sexual performance of a child (12 counts) and obscenity in the third degree.

Lahtinen, J.

Defendant challenges on several grounds police conduct that resulted in a Gateway computer being seized from his bedroom. Images of young girls found on that computer provided the basis for the charges to which he pleaded guilty.

A 17-year-old high school student wrote a letter to a school administrator claiming that defendant, a 25-year-old teacher in the school district, had engaged in improper conduct, including explicit on-line discussions with her regarding sex. Defendant was informed of the allegations by a school administrator and, shortly thereafter, defendant agreed to the request of Gerald Schatzel, a police detective, to go to the police station to answer some questions. While defendant was being questioned at the police station, Police Officer Scott Herrington was dispatched to defendant's parents' home, where defendant resided. Defendant's mother knew Herrington and invited him into the house. Herrington informed defendant's parents that, because of an accusation made against defendant by a student, he had been sent to secure defendant's computer. Herrington (and the officer who later replaced him) sat in the living room with defendant's parents waiting for defendant and other police to arrive.

In the meantime, defendant had been questioned at the police station, where he signed a consent form permitting police to take his "Comp USA Computer/Monitor" from his bedroom. Defendant proceeded to the house accompanied by Schatzel and another detective. Upon entering defendant's bedroom, the detectives observed on defendant's desk a Comp USA computer, which was fully functional, and on defendant's dresser the central processing unit tower of a Gateway computer that was not hooked to a monitor. Although the written consent was limited to one specifically described computer, the detectives started gathering computer disks and equipment from defendant's desk and also opened and searched his desk drawers until defendant and his father questioned the scope of their search. Indeed, one of the detectives admitted at the subsequent suppression hearing that he had not even read the written consent and the other acknowledged that he decided not to leave the residence with only one computer. The detectives removed from defendant's bedroom not only the Comp USA computer, but also the Gateway computer, as well as various other computer disks and equipment. Photographs discovered on the Gateway computer, while unrelated to the allegations by the student, formed the basis for many of the charges brought against defendant.

After being indicted, defendant moved to suppress the Gateway computer and various other evidence the police had seized. A hearing was conducted and County Court (Vogt, J.H.O.) suppressed some of the seized evidence and further determined that the entry into the house by Herrington was not illegal because he had been invited in by defendant's parents and defendant was not in custody or coerced when he executed the written consent. The court further found that, although the warrantless seizure of the Gateway computer exceeded the scope of defendant's written consent, defendant lacked standing to challenge this seizure because he had disclaimed ownership of this computer. Defendant eventually pleaded guilty to 16 of the counts in the indictment and was sentenced to 180 days in jail and various periods of probation. This appeal ensued.

We turn first to defendant's argument that County Court (Vogt, J.H.O.) erred in finding that he had no standing to challenge the seizure of the Gateway computer. Although the People did not raise the standing issue before County Court, this does not—as urged by defendant—constitute...