People v. Vanness

• Decision Date: 16 May 2013
• Citation: 2013 N.Y. Slip Op. 03506,106 A.D.3d 1265,965 N.Y.S.2d 227
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael VANNESS, Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1265

965 N.Y.S.2d 227

2013 N.Y. Slip Op. 03506

The PEOPLE of the State of New York, Respondent,

v.Michael VANNESS, Appellant.

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

May 16, 2013.

G. Scott Walling, Queensbury, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, McCARTHY and EGAN JR., JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered May 26, 2010, convicting defendant upon his plea of guilty of the crime of possessing a sexual performance by a child (three counts).

Following defendant's arrest for other crimes,¹ the police obtained a search warrant authorizing a search of defendant's residence. Police executed the warrant and seized, among other things, two computer towers. Those computers contained child pornography, leading to an indictment on three counts of possessing a sexual performance by a child. After County Court denied defendant's suppression motion, he pleaded guilty to all three counts and was sentenced, as a second felony offender, to 1 1/2 to 3 years in prison on each count, with the sentences running consecutively to each other but concurrently with the sentences imposed for his other crimes. Defendant appeals.

In defendant's related appeal, we found that the police had probable cause to seize defendant and arrest him for the prior charges, requiring denial of his suppression motion there ( People v. Vanness, 106 A.D.3d 1262, 964 N.Y.S.2d 763 [appeal No. 103552B, decided herewith] ). Hence, we reject his arguments that any impropriety in connection with that case affected the search warrant at issue here.

Because defendant failed to allege sufficient facts to justify a hearing, County Court did not err in summarily denying defendant's motion for a Mapp hearing. Motion papers seeking suppression of evidence “must state the ground or grounds of the motion and must contain sworn allegations of fact ... supporting such grounds” (CPL 710.60[1] ). A hearing is not automatic; a court may summarily deny the motion if the papers do not allege a legal basis for suppression or if the factual allegations do not as a matter of law support any alleged ground ( seeCPL 710.60[3]; People v. Burton, 6 N.Y.3d 584, 587, 815 N.Y.S.2d 7, 848 N.E.2d 454 [2006];People v. Mendoza, 82 N.Y.2d 415, 421, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ). “[F]actual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and [the] defendant's access to information” ( People v. Mendoza, 82 N.Y.2d at 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017;People v. Mabeus, 47 A.D.3d 1073, 1074, 850 N.Y.S.2d 664 [2008] ). Here, defendant made his motion after he was supplied with the search warrant application, supporting documents and return, as well as discovery. He had resolved the other criminal charges that precipitated the warrant application, providing him with information related to the situation surrounding the application. In these circumstances, defendant's bare allegation of a lack of probable cause, without any factual support, was insufficient to require a hearing ( see People v. Mendoza, 82 N.Y.2d at 427, 604 N.Y.S.2d 922, 624 N.E.2d 1017;People v. Jenkins, 64 A.D.3d 993, 994, 882 N.Y.S.2d 583 [2009];People v. Gadsden, 273 A.D.2d 701, 701–702, 711 N.Y.S.2d 788 [2000],lv. denied95 N.Y.2d 934, 721 N.Y.S.2d 610, 744 N.E.2d 146 [2000] ). Accordingly, the court properly determined that a hearing was not necessary to decide the motion.

The challenged search warrant was supported by probable cause. “A search warrant that has been approved by a reviewing magistrate is cloaked with a presumption of validity” ( People v. Rogers, 94 A.D.3d 1246, 1247, 942 N.Y.S.2d 260 [2012],lv. denied19 N.Y.3d 977, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] [citation omitted]; see People v. Castillo, 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992],cert. denied507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993] ). “[T]o establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is ‘sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place’ ” ( People v. Pinkney, 90 A.D.3d 1313, 1315, 935 N.Y.S.2d 374 [2011], quoting People v. Church, 31 A.D.3d 892, 894, 819 N.Y.S.2d 155 [2006],lv. denied7 N.Y.3d 866, 824 N.Y.S.2d 611, 857 N.E.2d 1142 [2006];seeCPL 690.35 [3][b], [c] ). In the warrant application here, a State Police investigator sought permission to search defendant's residence—which was clearly and particularly identified—for, among other things, computers, hard drives, external storage devices, disks, DVDs, notebooks, digital images, photographs and similar items that may be of evidentiary value in the investigation of possession of a sexual performance by a child or disseminating indecent materialto minors.² The application stated that defendant was a registered sex offender who was under investigation for burglary and endangering the welfare of a child. Sworn statements from defendant and a 14–year–old victim established that defendant had used his cell phone to send her a photograph of his penis, she had sent pictures to his cell phone of herselfin her underwear, they had communicated through an instant messenger service and some of those communications were of a sexual nature. Defendant's probation officer submitted a statement that she had seen a computer in defendant's bedroom of the residence to be searched and he had both email and MySpace accounts. The warrant application revealed, based on defendant's and the victim's sworn statements and the investigator's personal investigation, that defendant was MySpace friends with the victim and had communicated with her online, but he told police that he thought she did not have a MySpace...