People v. Henry

• Citation: 88 N.Y.S.3d 672,166 A.D.3d 1289
• Decision Date: 21 November 2018
• Docket Number: 107058
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard HENRY, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1289

88 N.Y.S.3d 672

The PEOPLE of the State of New York, Respondent,

v.Richard HENRY, Appellant.

107058

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

Calendar Date: October 12, 2018

Decided and Entered: November 21, 2018

Alexander W. Bloomstein, Hillsdale, for appellant.

P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.

Before: Garry, P.J., Devine, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J.

In November 2012, defendant was charged by indictment with 34 counts of possessing a sexual performance by a child based upon his alleged possession of videos and digital images depicting child pornography. Following a trial, a jury found defendant guilty of 32 of those charges, and County Court subsequently sentenced him to an aggregate prison term of 4 to 12 years. Defendant now appeals, and we affirm.

Defendant argues that the jury verdict is not supported by legally sufficient evidence and is against the weight of the evidence. However, because defendant made only a general trial motion for dismissal, his legal sufficiency claim is unpreserved for our review (see People v. Chaneyfield, 157 A.D.3d 996, 996, 69 N.Y.S.3d 144 [2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018] ; People v. Criss, 151 A.D.3d 1275, 1276, 58 N.Y.S.3d 605 [2017], lv denied 30 N.Y.3d 979, 67 N.Y.S.3d 581, 89 N.E.3d 1261 [2017] ).¹ Nevertheless, as part of our weight of the evidence review, we determine whether each element of the charged crime was proven beyond a reasonable doubt (see People v. Morris, 140 A.D.3d 1472, 1473, 34 N.Y.S.3d 513 [2016], lv denied 28 N.Y.3d 1074, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ; People v. Launder, 132 A.D.3d 1151, 1151, 18 N.Y.S.3d 747 [2015], lv denied 27 N.Y.3d 1153, 39 N.Y.S.3d 387, 62 N.E.3d 127 [2016] ). In a weight of the evidence review, we assess whether a different verdict would have been unreasonable and, if not, we "weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" to determine whether, based on the weight of the credible evidence, "the jury was justified in finding the defendant guilty beyond a reasonable doubt" ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see People v. Kancharla, 23 N.Y.3d 294, 303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ).

To be found guilty of possessing a sexual performance by a child, the evidence must establish, as relevant here, that the defendant, "knowing the character and content thereof, ... knowingly has in his [or her] possession or control ... any performance which includes sexual conduct by a child less than [16] years of age" ( Penal Law § 263.16 ). To constitute knowing possession, the defendant must be aware that he or she is in possession of a sexual performance by a child (see Penal Law § 15.05[2] ; People v. Kent, 19 N.Y.3d 290, 301, 947 N.Y.S.2d 798, 970 N.E.2d 833 [2012] ). In the case of digital images and videos found on an electronic device, knowing possession may be inferred from evidence establishing that the defendant exercised dominion or control over the material on the device (see People v. Kent, 19 N.Y.3d at 301, 947 N.Y.S.2d 798, 970 N.E.2d 833 ; see generally People v. Muhammad, 16 N.Y.3d 184, 188, 920 N.Y.S.2d 760, 945 N.E.2d 1010 [2011] ). There must be some "affirmative act," such as printing, saving or downloading, to establish such dominion and control ( People v. Kent, 19 N.Y.3d at 303, 947 N.Y.S.2d 798, 970 N.E.2d 833 ; see People v. Yedinak, 157 A.D.3d 1052, 1053, 69 N.Y.S.3d 728 [2018] ).

At trial, Peter Kozel, an investigator in the State Police computer crime unit, testified that he was assigned to investigate a complaint received by the National Center for Missing and Exploited Children regarding three images of suspected child pornography. Kozel testified that Microsoft forwarded the images to the National Center for Missing and Exploited Children after one of its users uploaded the images to Windows Live, its online cloud storage program. The evidence established that law enforcement was able to determine through records maintained by Microsoft and Time Warner Cable – which were admitted into evidence – the IP address and location from which the three suspect images had been uploaded and that defendant was ultimately identified as the suspected uploader of the images. Kozel, as well as another State Police officer involved in the investigation, testified that they subsequently interviewed defendant and that, during the course of that interview, defendant made various admissions, including that he had access to the Internet through an account belonging to his roommate, that he downloaded files using certain peer-to-peer software, that he had been locked out of his Windows Live account and that he did not contact Microsoft to restore his account because he felt "guilty" about the reason his account had been locked.² As established by the evidence, the State Police thereafter obtained a warrant to search defendant's home, which resulted in the seizure of defendant's desktop computer, laptop computer and digital hard drive.

Kozel testified that he conducted a forensic evaluation of all three seized devices and found, among other things, the 32 digital images and two videos of child pornography underlying the indictment. With respect to the laptop, Kozel stated that his forensic evaluation revealed the existence of a shortcut to a folder entitled "NROP" – porn spelled backwards – that contained approximately 104,000 files, with 1,706 files in the root of the folder. Kozel stated that he personally examined each of the files and marked 166 images and five videos as suspected child pornography. He testified that he found the three images that were flagged by Microsoft within the "NROP" folder, as well as the two videos and 26 of the 32 images underlying the charges. Kozel's testimony, as well as a report that he generated during the course of his forensic examination of the laptop, demonstrated that certain files from the "NROP" folder, including more than half of the images charged in the indictment, were listed as "recently accessed" files on the laptop. Kozel further testified that he extracted two of the underlying images from defendant's desktop computer and a thumbnail image of suspected child pornography from defendant's digital hard drive.

Defendant testified that he worked as a computer programmer for 20 years, and the substance of his testimony demonstrated that he had extensive knowledge of and experience with computers. He admitted that he had been locked out of...