People v. Urtz

• Citation: 112 N.Y.S.3d 814,176 A.D.3d 1485
• Decision Date: 31 October 2019
• Docket Number: 108929
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher URTZ, Appellant.
• Court: New York Supreme Court Appellate Division

176 A.D.3d 1485
112 N.Y.S.3d 814

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

108929

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

Decided and Entered: October 31, 2019
Calendar Date: September 4, 2019

112 N.Y.S.3d 816

Dominic J. Cornelius, Public Defender, Hudson (Michael C. Howard of counsel), for appellant.

Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.

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

MEMORANDUM AND ORDER

Pritzker, J.

176 A.D.3d 1485

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered November 9, 2016, upon a verdict convicting defendant of the crime of possessing a sexual performance by a child (four counts).

Defendant was charged by indictment with 10 counts of possessing a sexual performance by a child arising out of an incident in May 2014 when defendant's wife opened a messaging application known as "KIK"¹ on defendant's cell phone and discovered an image of child pornography. Police searched defendant's cell phone – both manually and with forensic technology – and recovered seven images and three videos, which are the subject of this case. At trial, defense counsel, in the course of his trial order of dismissal, conceded that the images and videos included a sexual performance by a child and challenged only the elements involving knowing possession of the subject materials. After trial, the jury convicted defendant of 4 of the 10 counts (counts 1, 8, 9 and 10). Defendant was thereafter sentenced to a prison term of 1 to 3 years for each count, which were to run consecutively. Defendant appeals.

Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence. When a defendant raises a claim of legal sufficiency of the evidence, "[the Court] view[s] the evidence in the light most favorable to the People and evaluate[s] whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Kaplan , 168 A.D.3d 1229, 1229–1230, 91 N.Y.S.3d 601 [2019] [internal quotation marks and citations

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omitted], lv denied 33 N.Y.3d 1032, 102 N.Y.S.3d 506, 126 N.E.3d 156 [2019] ; see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "When undertaking a weight of the evidence

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review, [the Court] must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this review, [the Court] consider[s] the evidence in a neutral light and defer[s] to the jury's credibility assessments" ( People v. Gill , 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392 [2019] [internal quotation marks and citations omitted]; see People v. Pietoso , 168 A.D.3d 1276, 1277, 92 N.Y.S.3d 455 [2019], lv denied 33 N.Y.3d 1034, 102 N.Y.S.3d 526, 126 N.E.3d 176 [2019] ). As relevant here, "[a] person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he [or she] knowingly has in his [or her] possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than sixteen years of age" ( Penal Law § 263.16 ). "While this crime requires proof that the defendant knew of the character and content of the performance, it also specifically requires that the defendant knowingly had the sexual performance by a child in his or her possession or control. To knowingly possess, some affirmative act is required (printing, saving, downloading, etc.) to show that [the] defendant in fact exercised dominion and control over the images" ( People v. Yedinak , 157 A.D.3d 1052, 1053, 69 N.Y.S.3d 728 [2018] [internal quotation marks and citations omitted]; see People v. Henry , 166 A.D.3d 1289, 1290, 88 N.Y.S.3d 672 [2018] ).

Ryan Hogan – a State Trooper – testified that, on May 6, 2014, he arrived at defendant's home after defendant's wife opened unread messages on the KIK account on defendant's phone and saw what she believed was child pornography. According to Hogan, defendant handed him the phone at defendant's residence, and Hogan confirmed that the image that defendant received was, in fact, child pornography. After Hogan secured the phone and defendant signed a voluntary consent form to search the phone, defendant conceded to Hogan that the KIK account belonged to him. Defendant then provided Hogan with the username for the account – "I like 'em younger" – as well as the corresponding email address and password. Chad Drozd – an investigator with the State Police – testified that he and another investigator subsequently interviewed defendant, and that this interview was videotaped.²

Timothy Milone – an investigator with the State Police in the

176 A.D.3d 1487

computer crimes unit – explained that he extracted data from defendant's phone and copied it onto a thumb drive, which allowed him to examine all videos and images on the phone. According to Milone, he found seven images and three videos involving child pornography. As part of the extraction and examination, Milone was able to obtain, and testified about, the various dates and times when the videos (exhibit Nos. 8, 9 and 10 [hereinafter the videos] ) and two of the images (exhibit Nos. 1 and 2) were placed on the phone.³ As to exhibit No. 1, Milone testified that this photograph was

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found in the Digital Camera Internal Memory, which is a subfolder that cannot be located on the phone without the use of forensic tools because it was contained in the cache memory file.⁴ Milone explained that images in the cache file were once on the screen but had been removed for one reason or another. He conceded that "the phone itself ... takes data, whether its [sic] text, or images, or videos, and on its own, places those items into a cache area, a temporary storage area." As to the videos, Milone explained that they were found in a file, called "CO dot happy bits," in the video KIK application – a video player that is an application "different and separate from [the] KIK" application. The videos had not been deleted and Milone showed the jury how they could be accessed directly from defendant's phone, without the use of a forensic tool.⁵ Milone also testified that, although the videos came through the KIK application, Milone was unable to tell whether a user of the application could, at the time the material is received by the phone, know whether the message received is a picture, video, text, link or chat. Furthermore, Milone testified that he could not conclude who was in possession of the phone when the images were received.

After the People rested, defendant proffered his own proof, including the testimony of Brenda Raup, defendant's mother-in-law, with whom he and his wife were living in May 2014. Raup explained that on May 6, 2014, at approximately 5:00 p.m., she was in the living room when she heard defendant's wife become "irate" in the kitchen. According to Raup, defendant's wife was upset about an image of a young child that she

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had found on defendant's phone. At the wife's suggestion, the police were called and, when they arrived, defendant's wife showed Hogan defendant's phone.

Defendant also testified to the events of the evening of May 6, 2014. He explained that he did not "technically" own a cell phone at the time and was using a phone that his wife had purchased. Defendant denied having exclusive use of the phone, stating that his wife and his children also used the phone, and that no password was required to access it. Defendant testified that, at approximately 5:30 p.m., his wife was checking her bank account on the subject phone when she noticed two messages come in from KIK messenger. Defendant conceded that he had signed up for a KIK account and that he used the name "I like 'em younger, 37–year–old guy" because, in different dating websites, "a lot of older ladies were messaging [him] constantly" and he "wanted people to know that [he] liked them under [his] age" and that, originally, his display name was "I'm a 37–year–old guy." Defendant testified that both he and his wife used KIK "to chat with other users and also to get pic[tures] of adult pornography," which included both videos and images. According to defendant, he later changed his display name to "18 plus" and "girls only," but, on cross-examination, defendant conceded that "18 plus" was not currently the display name because he had changed it since then. Defendant...