People v. Socciarelli

• Decision Date: 11 March 2022
• Docket Number: 58,KA 19-01166
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael W. SOCCIARELLI, Defendant-Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1556

164 N.Y.S.3d 749

The PEOPLE of the State of New York, Respondent,

v.Michael W. SOCCIARELLI, Defendant-Appellant. (Appeal No. 2.)

58

KA 19-01166

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

Entered: March 11, 2022

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

PRESENT: PERADOTTO, J.P., LINDLEY, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, upon a plea of guilty, of two counts of possessing a sexual performance by a child ( Penal Law § 263.16 ), defendant contends that the judgment must be reversed on the ground that he pleaded guilty based on the promise that the sentence would run concurrently with the sentence in People v. Socciarelli, [appeal No. 1] 203 A.D.3d 1642, 163 N.Y.S.3d 730 [4th Dept. 2022] [decided herewith]; see People v. Fuggazzatto , 62 N.Y.2d 862, 863, 477 N.Y.S.2d 619, 466 N.E.2d 159 [1984] ; see also People v. Williams , 79 A.D.3d 1653, 1655, 914 N.Y.S.2d 521 [4th Dept. 2010], affd 17 N.Y.3d 834, 930 N.Y.S.2d 530, 954 N.E.2d 1155 [2011] ). Although we are modifying the judgment in appeal No. 1 by reducing the sentence ( Socciarelli , 203 A.D.3d at 1644, 163 N.Y.S.3d 730 ), we reject defendant's contention that the judgment on appeal in this case should be reversed, inasmuch as the sentence in this case "will still run ‘concurrently with and not exceed’ the sentence imposed" in appeal No. 1, even as reduced ( People v. Freeman , 159 A.D.3d 1337, 1337, 73 N.Y.S.3d 296 [4th Dept. 2018], lv denied 31 N.Y.3d 1147, 83 N.Y.S.3d 429, 108 N.E.3d 503 [2018]; see People v. Dibble , 176 A.D.3d 1584, 1587, 112 N.Y.S.3d 352 [4th Dept. 2019], lv denied 34 N.Y.3d 1077, 116 N.Y.S.3d 170, 139 N.E.3d 828 [2019]).

We reject defendant's further contention that County Court erred in refusing to suppress evidence obtained pursuant to a search warrant for defendant's smartphone. Contrary to defendant's contention, there was probable cause to support the issuance of the search warrant. It is well settled that, "[i]n dealing with probable cause, ... we deal with probabilities" ( Brinegar v. United States , 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 [1949], reh denied 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513 [1949] ). " ‘The affidavit [supporting the warrant application] need not contain information providing certainty that the objects sought will be found in the search ... The issue is ... rather whether the facts and circumstances taken as a whole gave the magistrate probable cause to believe that the desired items would be found in the search’ " ( People v. Hayon , 57 Misc. 3d 963, 970, 62 N.Y.S.3d 754 [Sup. Ct., Kings County 2017], quoting United States v. Brinklow , 560 F.2d 1003, 1006 [10th Cir. 1977], cert denied 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 [1978] ; see generally People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). The application established, inter alia, that a photograph of a "pubescent minor in a sex act" was uploaded from an IP address attributed to a residence where defendant was the sole occupant. That photograph was then shared, via a Facebook account in defendant's name, with a person in the Philippines, where defendant admitted he had Facebook "friends."

We agree with the many federal courts that "have reached the conclusion that illegal internet activity associated with a particular IP address is a sufficient basis to find a nexus between the unlawful use of the Internet at the IP address and a [device] possessed by the subscriber assigned that address" ( Hayon , 57 Misc. 3d at 970, 62 N.Y.S.3d 754 ; see generally People v. DeProspero , 20 N.Y.3d 527, 530, 964 N.Y.S.2d 487, 987 N.E.2d 264 [2013] ). Based on the information set forth in the application and the well-established principle that "[a]pproval by a reviewing magistrate cloaks a search warrant with ‘a presumption of validity’ " ( People v. DeProspero , 91 A.D.3d 39, 44, 932 N.Y.S.2d 789 [4th Dept. 2011], affd 20 N.Y.3d 527, 964 N.Y.S.2d 487, 987 N.E.2d 264 [2013], quoting 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] ; see People v. Welch , 2 A.D.3d 1354, 1357, 770 N.Y.S.2d 230 [4th Dept. 2003], lv denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926 [2004] ), we conclude that there was probable cause to believe that defendant's electronic devices, including his smartphone, would contain information relevant to a criminal offense, i.e., the dissemination of child pornography (see DeProspero , 91 A.D.3d at 44-45, 932 N.Y.S.2d 789 ; see also People v. Vanness , 106 A.D.3d 1265, 1266-1267, 965 N.Y.S.2d 227 [3d Dept. 2013], lv denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013]).

Contrary to defendant's further contention, the search warrant was not overly broad inasmuch as the description of the electronic files to be seized from defendant's cell phone "was not broader than was justified by the probable cause upon which the warrant[ ] [was] based" ( People v. Crupi , 172 A.D.3d 898, 899, 100 N.Y.S.3d 56 [2d Dept. 2019], lv denied 34 N.Y.3d 950, 110 N.Y.S.3d 641, 134 N.E.3d 640 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2815, 207 L.Ed.2d 148 [2020] ; cf. People v. Carter , 31 A.D.3d 1167, 1169, 818 N.Y.S.2d 380 [4th Dept. 2006] ).

Finally, defendant contends that the affiant who prepared the application lacked "personal...