People v. Deprospero

• Decision Date: 18 November 2011
• Citation: 91 A.D.3d 39,932 N.Y.S.2d 789,2011 N.Y. Slip Op. 08421
• Parties: The PEOPLE of the State of New York, Respondent,v.Stephen DEPROSPERO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

91 A.D.3d 39

932 N.Y.S.2d 789

2011 N.Y. Slip Op. 08421

The PEOPLE of the State of New York, Respondent,

v.Stephen DEPROSPERO, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 18, 2011.

Frank Policelli, Utica, for Defendant–Appellant.Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.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 indicted on 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[4] ). 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 camera on the grounds that the May 2009 search warrant was not supported by probable cause, and that the police lacked jurisdiction to search his computer and camera once the 2009 criminal proceeding terminated.

Following a suppression hearing, the court denied those parts of defendant's omnibus motion seeking dismissal of the indictment pursuant to CPL 40.40 and suppression of the evidence recovered from defendant's camera and computer. With respect to that part of the motion seeking suppression, the court first determined that the May 2009 search warrant was supported by probable cause. After noting that this “may be a case of first impression concerning the delayed analysis of property that has been lawfully seized,” the court concluded that there was “nothing inherently wrong or improper about a delayed analysis or inspection of property that [has been] lawfully seized,” that defendant did not have a legitimate expectation of privacy in the items searched by the State Police in January 2010, and that the May 2009 warrant continued to provide probable cause for that subsequent search. The court therefore determined “that the police did not need a second search warrant to do a complete forensic analysis of the seized property prior to returning said property to the defendant.”

Defendant thereafter pleaded guilty to predatory sexual assault against a child, admitting that, at some point between September 25, 2006 and December 25, 2007, he engaged in oral sexual contact with a child less than 13 years of age. Defendant was sentenced to an indeterminate term of 18 years to life, and he now appeals.

Discussion

Addressing first defendant's contention pursuant to CPL 40.40, we note that defendant forfeited such contention by his plea of guilty ( see People v. Prescott, 66 N.Y.2d 216, 218, 495 N.Y.S.2d 955, 486 N.E.2d 813, cert. denied 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349; People v. Farnsworth, 24 A.D.3d 1206, 805 N.Y.S.2d 862, lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976). In any event, we conclude that the court properly determined that there was no statutory double jeopardy violation. “CPL 40.40 prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions” ( People v. Tabor, 87 A.D.3d 829, 831, 928 N.Y.S.2d 410 [internal quotation marks omitted] ). The statute applies only to offenses that are joinable on the ground that they arise from a single criminal transaction ( see CPL 40.40, 200.20[2][a]; see generally People v. Dallas, 46 A.D.3d 489, 490, 848 N.Y.S.2d 132, lv. denied 10 N.Y.3d 809, 857 N.Y.S.2d 43, 886 N.E.2d 808, 10 N.Y.3d 933, 862 N.Y.S.2d 340, 892 N.E.2d 406).

Here, the 2009 and 2010 offenses arose from separate criminal transactions. A criminal transaction is comprised of two or more acts “either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10[2] ). In this case, the 2009 and 2010 offenses have different elements, and were committed in different places, at different times, and against different victims ( see People v. Rossi, 222 A.D.2d 717, 718, 636 N.Y.S.2d 82, lv. denied 88 N.Y.2d 884, 645 N.Y.S.2d 459, 668 N.E.2d 430; see also People v. Haddock, 80 A.D.3d 885, 886, 914 N.Y.S.2d 431, lv. denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183; cf. CPL 40.10[2][a] ). As the court properly concluded, the mere fact that evidence of both offenses was collected pursuant to the same search warrant does not link them to a single criminal transaction ( see generally People v. Batista, 282 A.D.2d 825, 826, 725 N.Y.S.2d 104, lv. denied 96 N.Y.2d 825, 829, 729 N.Y.S.2d 445, 449, 754 N.E.2d 205, 209). Further, defendant's possession of a pornographic image of an unknown female child is plainly not an integral part of the same “criminal venture” as his act of engaging in oral sexual conduct with a male child with whom he was acquainted (CPL 40.10[2][b]; see Matter of Martinucci v. Becker, 50 A.D.3d 1293, 1293–1294, 855 N.Y.S.2d 718, lv. denied 10 N.Y.3d 709, 859 N.Y.S.2d 394, 889 N.E.2d 81; People v. Harris, 267 A.D.2d 1008, 1009–1010, 701 N.Y.S.2d 195; see generally People v. Van Nostrand, 217 A.D.2d 800, 801, 630 N.Y.S.2d 101, lv. denied 87 N.Y.2d 851, 638 N.Y.S.2d 610, 661 N.E.2d 1393). Thus, because the two prosecutions of defendant were based on separate criminal transactions, the instant prosecution is not barred by CPL 40.40 ( see People v. Mono, 197 A.D.2d 909, 602 N.Y.S.2d 266, lv. denied 82 N.Y.2d 900, 610 N.Y.S.2d 167, 632 N.E.2d 477).

We likewise reject defendant's further...