People v. Tucker

• Decision Date: 10 May 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher J. TUCKER, Appellant.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1437
944 N.Y.S.2d 383
2012 N.Y. Slip Op. 03678

The PEOPLE of the State of New York, Respondent,
v.
Christopher J. TUCKER, Appellant.

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

May 10, 2012.

[944 N.Y.S.2d 384]

Albert F. Lawrence, Greenfield Center, for appellant.

Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.

Before: PETERS, P.J., MALONE JR., KAVANAGH, STEIN and EGAN JR., JJ.

STEIN, J.

[95 A.D.3d 1437]Appeals (1) from a judgment of the County Court of Washington County (McKeighan, J.), rendered September 25, 2009, upon a verdict convicting defendant of the crimes of possessing a sexual performance by a child and perjury in the first degree, and (2) by permission, from an order of said court, entered October 17, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, after a hearing.

In or about October 2008, the State Police were engaged in an investigation of certain allegations of sexual misconduct by defendant, when they obtained information suggesting that two computers located in defendant's residence contained images of individuals under 16 years of age engaging in sexual conduct. In the course of the investigation, these computers—a desktop computer used by all members of defendant's household and a laptop computer primarily used by defendant's 12–year–old daughter—were searched. After the computers were examined at the computer crime unit of the State Police forensics laboratory (hereinafter forensics lab), evidence was found on the desktop's hard drive consisting of, as pertinent here, hundreds of images, videos and websites relating to sexual activities involving persons under the age of 16.

Defendant was subsequently charged by grand jury indictment[95 A.D.3d 1438]with, among other things, possessing a sexual performance by a child (three counts) and perjury in the first degree. After a jury trial, defendant was convicted of one count of possessing a sexual performance by a child ¹ and perjury in the first degree. Following his sentencing, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction asserting, among other things, Rosario violations; County Court denied this motion.² DEFENDANT NOW APPEals from both the judgment of conviction and the order denying his postconviction motion.

We affirm. Preliminarily, we note that defendant's challenge to the legal sufficiency of the evidence presented at trial is unpreserved for this Court's review because his motion for a trial order of dismissal with respect to the charges of which he was convicted was not made with sufficient particularity ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008];People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];People v. Malcolm, 74 A.D.3d 1483, 1484 n., 902 N.Y.S.2d 264 [2010],lv. denied15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ). Nevertheless, as defendant also argues that the verdict is against the weight of the evidence ( seeCPL 470.15[5] ), we will

[944 N.Y.S.2d 385]

necessarily evaluate whether the elements of the crimes charged were adequately proven at trial ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];People v. Garcia, 79 A.D.3d 1248, 1250, 911 N.Y.S.2d 723 [2010],lv. denied16 N.Y.3d 797, 919 N.Y.S.2d 514, 944 N.E.2d 1154 [2011];People v. Jones, 79 A.D.3d 1244, 1246, 912 N.Y.S.2d 746 [2010],lv. denied16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011] ).

In order to convict defendant of possessing a sexual performance by a child, the People were required to prove that defendant knowingly had “in his possession or control any performance which includes sexual conduct by a child less than [16] years of age” with knowledge of its content and character (Penal Law § 263.16; see People v. Horner, 300 A.D.2d 841, 842, 752 N.Y.S.2d 147 [2002] ). “Sexual conduct” includes, among other things, “oral sexual conduct” (Penal Law § 263.00[3] ). Here, the People presented the testimony of State Police Investigator Joseph Bearor that, after obtaining consent to search the computers from defendant and his wife, Jennifer Tucker, the computers were turned over to the forensic lab, where they were examined by Kimberly Cardona, a computer forensic analyst. Cardona testified in explicit detail as to how she conducted her examination of the computers, which ultimately revealed that the desktop computer contained, as relevant here, images, described by Cardona as the remnants of a video portraying children engaging in [95 A.D.3d 1439]sexual conduct, as well as “wipe-and-erase” software. Her analysis also concluded that the laptop computer contained information that suggested that there may have been files associated with child pornography and “wipe-and-erase” software on that computer. Regarding the desktop computer, Cardona explained that her search of various keywords resulted in “ thousands of hits” in areas of the computer's hard drive associated with the user's Internet browsing history. Specifically, she found such evidence in the hard drive's “unallocated” space—which she described as the area where deleted files are located—as well as in certain “temporary” files.³ Using retrieval software, Cardona was able to recover the images and files from the unallocated space and temporary files. She then created a report which, among other things, contained a history of Internet sites bearing child pornography keywords in their description that the user of the desktop computer had accessed. Cardona also found more than 200 files representing partially downloaded videos consisting of images depicting children engaged in sexual activity—including oral sex—which were downloaded from a peer-to-peer file sharing program.⁴ James Fuchs, an experienced pediatrician, testified that the images that defendant was ultimately convicted of possessing depicted a female who was “pre-pubertal or, at best

[944 N.Y.S.2d 386]

very, very early in puberty, and would definitely be less than 16 years old ... 13 or 14 at the most, probably...