People v. Hayon, 2039/2016.
| Decision Date | 02 October 2017 |
| Docket Number | 2039/2016. |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Joseph HAYON, Defendant. |
| Court | New York Supreme Court |
57 Misc.3d 963
62 N.Y.S.3d 754
The PEOPLE of the State of New York, Plaintiff,
v.
Joseph HAYON, Defendant.
2039/2016.
Supreme Court, Kings County, New York.
Oct. 2, 2017.
Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn, (Albert W. Suh, of counsel), for the People.
Douglas B. Appel, Brooklyn, for Defendant.
MATTHEW J. D'EMIC, J.
The defendant moves to controvert three search warrants and seeks to suppress "any items seized or statements made pursuant to [their] execution." The People oppose the motion.
Following the execution of these search warrants at his home and places of business, the defendant was arrested and criminally charged for possessing multiple images of children engaging in sexual conduct. The defendant was originally accused of eight counts of Promoting a Sexual Performance by a Child
(PL § 263.15) and sixty-five counts of Possessing a Sexual Performance by a Child (PL § 263.16) under Indictment No. 8001/2015. Subsequently,
the People re-presented this case to the Grand Jury and a new, superseding indictment, No. 2039/2016 was issued, charging the defendant with the original charges and an additional 30 counts of possession of a sexual performance by a child. However, following its inspection of the Grand Jury minutes, the court dismissed all eight "Promoting" counts and one possession count (August 18, 2016; Foley, J.), leaving the defendant currently charged with 94 counts under Penal Law § 263.16.
In moving to controvert, the defendant contends that the application for the search warrants did not provide the court with sufficient probable cause to support the issuance of the warrants. He attributes this deficiency to four factors: that all of the subpoenaed information referred to in the warrant application was not shown to be connected to child pornography; that only one alleged pornographic image was viewed by the affiant; that the omission of accurate information about the ability of others to access an unsecure internet connection misled the court; and that the information in the warrant application is stale.
The court has considered the papers submitted, the warrant application and the three signed search warrants at issue as well as the two previous search warrants in this case. For the following reasons defendant's motion is denied.
Background
On February 16, 2015, the New York City Police Department (NYPD) was notified by the National Center for Missing and Exploited Children Cyber Tipline (NCMEC) that a suspected image of child pornography had been uploaded onto an email account, A-----@juno.com, provided by Internet Service Provider (ISP) Juno Online Services. The parent company of Juno, United Online Communications, had reported the upload the day it occurred, December 26, 2014, and that the image came from a particular Internet Protocol Address (IP address), 96.246.26.49. Police Officer Anthony Santilli, who was assigned to the Computer Crime Squad and who applied for the search warrants at issue here, viewed the image and determined that it fell within the definition of child pornography. He used the American Registry for Internet Numbers (ARIN) to learn that Verizon was the ISP that assigned
the IP address used to upload the image. He subpoenaed Verizon and discovered the name of the subscriber to the email account and the address of the subscriber, a business, Pink Label, with a Brooklyn, New York address. The particular customer who signed onto the computer at the time was identified as "Joseph H". Through another subpoena served on United Online, Santilli found subscriber information about the account, that it had been opened the day before the uploading, the member name, and that it was connected to the IP address originally reported. He also gained access to the connection logs which showed the time during which five additional IP addresses were connected to the internet, the amount of data that was transferred, and the identification numbers of additional IP addresses used. With this information Santilli subpoenaed Verizon again and learned that one of the five additional IP addresses was assigned to Pink Label and the other four were associated with defendant, Joseph Hayon, at his home address in Brooklyn, New York.
This accumulated information enabled Santilli to obtain a search warrant on March 23, 2015, authorizing a search of all activity relating to the Juno email account (Tomei, J.). According to his affidavit for the instant search warrant, Santilli stated that as a result of this first search warrant,
"I am informed by the records of United Online that there were multiple e-mail messages sent and received containing additional Child Pornography." A subsequent subpoena to Verizon uncovered six additional IP addresses, one assigned to Pink Label and five assigned to defendant at his home address. The officer affirmed that these six IP addresses "were used to facilitate the trade of Child Pornography in that the IP Addresses were used to send messages to other individuals with whom the owner of the Juno Account of A-----@juno.com was actively exchanging Child Pornography, in that the content of these messages confirmed and discussed this type of exchange."
On May 1, 2015, Santilli applied for and was granted a search warrant for a Facebook account that he had learned was linked to the Juno email account (Gary, J.). He explained to the court reviewing his second warrant application that the underlying reason for seeking access to the Facebook account was that Facebook users commonly used it as a platform to transfer images and videos of child pornography. The results of
the Facebook search warrant were not received at the time of this motion.
The search warrant application at issue here involved three distinct locations and resulted in the granting of three separate search warrants on May 15, 2015 (Simpson, J.). Officer Santilli listed defendant's residence as "subject location 1," the offices of Pink Label as "subject location 2," and the "rear office" as "subject location 3." Both of the previous search warrant applications were incorporated by reference and were available to the court for review. On April 20, 2015, Santilli had visited the second location, the office of Pink Label, under the guise of a fictional investigation and met with the owner of Pink Label who called her financial manager, "Joe," from the third location, his office in a distinct but attached "rear office" also at Pink Label's street address. Santilli was introduced to defendant, who voluntarily led him to his "Management Office" where Santilli observed two laptop computers.
With regard to the first location, Santilli established through public and utility records that this address was the defendant's residence. The response to two Verizon subpoenas reflected that nine IP addresses were assigned to a customer, Joseph Hayon, at that location. Santilli also learned through his investigation that a business, Homework Helper Institute, LLC, was registered at that location as well. Upon telephoning defendant's residence he was informed by a female that the Homework Helper Institute tutored children individually at their homes.
On May 21, 2015, the three search warrants were executed, leading to the recovery of laptop computers, desktop computers, cellular phones, and assorted devices from both the defendant's home and from the business locations. The defendant was also arrested on that date and, in statements to the police, he admitted he was the owner of the subject email account and that he used the Facebook account to meet people to facilitate trades of images. The defendant further stated that he was the owner of the computers seized from his apartment and that he used the computers at the subject business premises. He also provided the police with the Juno email and Facebook passwords.
Legal Analysis
A presumption of validity attaches to a search warrant approved by a magistrate who reviews the underlying application
and finds sufficient evidence of probable cause ( People v. Castillo, 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992], cert. denied
507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993] ; People v. Hanlon, 36 N.Y.2d 549, 558, 369 N.Y.S.2d 677, 330 N.E.2d 631 [1975] ; People v. Leggio, 84 A.D.3d 1116, 1117, 923 N.Y.S.2d 188 [2d Dept.2011] ). "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief ... that evidence of a crime may be found in a certain place" ( People v....
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