| People v Yedinak |
| 2018 NY Slip Op 00194 [157 AD3d 1052] |
| January 11, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Michael J.Yedinak, Appellant. |
George J. Hoffman Jr., Albany, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered April 3, 2015, upon a verdict convicting defendant of the crimes of promoting a sexualperformance by a child (seven counts) and possessing a sexual performance by a child (12counts).
Defendant was charged in a 20-count indictment with seven counts of promoting a sexualperformance by a child and 13 counts of possessing a sexual performance by a child, stemmingfrom allegations that he downloaded files on the Internet containing videos and images of childpornography, allowed others to download those files and possessed said files. After a jury trial,defendant was convicted of all counts[FN*] and sentenced to concurrent prison terms of 1to 3 years for each conviction. This appeal ensued.
Defendant's convictions were supported by legally sufficient evidence. To find that a [*2]jury verdict is supported by legally sufficient evidence, we mustdetermine "whether there is any valid line of reasoning and permissible inferences which couldlead a rational person to the conclusion reached by the jury . . . and as a matter oflaw satisfy the proof and burden requirements for every element of the crime charged"(People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Graham, 138 AD3d1242, 1242 [2016], lv denied 28 NY3d 930 [2016]). First, as to the convictions ofpossessing a sexual performance by a child, a person is guilty of this crime when, "knowing thecharacter and content thereof, he [or she] knowingly has in his [or her] possession or control, orknowingly accesses with intent to view, any performance which includes sexual conduct by achild less than sixteen years of age" (Penal Law § 263.16). While this crimerequires proof that the defendant knew of the character and content of the performance, it alsospecifically requires that the defendant knowingly had the sexual performance by a child in his orher possession or control (see Penal Law § 263.16; CJI2d[NY] Penal Law§ 263.16). To knowingly possess, "some affirmative act is required (printing,saving, downloading, etc.) to show that [the] defendant in fact exercised dominion and controlover the images" (People v Kent, 19NY3d 290, 303 [2012]).
At trial, Nikki Tolias, a special agent with the Department of Homeland Security (hereinafterDHS), testified that she used DHS's computer network to log into ARES, a file sharing program,and downloaded several files from the same IP address that were shared on ARES and had beenpreviously marked by law enforcement as possibly containing child pornography. Tolias testifiedthat she then sent an administrative summons to the Internet provider for the IP address, whoprovided information that the IP address was assigned to defendant at his home. An employeefrom the Internet service provider testified regarding the documents that were created in responseto the summons sent by Tolias. William Aiello, another special agent with DHS who investigatescrimes involving child exploitation, testified that child pornography is not like other types ofpornography in that it is not as readily available online, and those searching for it or looking toshare it often use specific terms to indicate what it is, the most common of which are "PTHC," anacronym for "preteen hardcore," and "little lelita" [sic]. Aiello also testified regarding theexecution of a search warrant at defendant's home at which time defendant admitted to using theterm "young lolita" to search for pornography and viewing content with the label "PTHC,"although he claimed to be unsure what it meant. Defendant also stated at that time that childpornography might be found on his computer, and, if it was, that was because he had not had achance to delete it and that it would only be found in his ARES folder, later adding that it mayalso be found in his recycle bin. Ryan Glor, another DHS agent who performed the search ofdefendant's computers, testified regarding the subject videos and images that were found on twohard drives from a computer tower seized from defendant's residence and that the filesdownloaded by law enforcement from defendant's IP address contained explicit descriptions ofthe content therein. Also, a certified nurse midwife testified as to the ages of the females in thesubject photos and images. All of the subject videos and images were viewed by the jury.
As this evidence established that defendant intentionally used two search terms that arecommonly associated with files that contain child pornography, that defendant admitted theremay be child pornography found in his ARES folder and that the file names of the filesdownloaded by law enforcement from defendant's IP address contained explicit descriptions ofthe content therein, the evidence is legally sufficient to support the element of knowledgeregarding the content and character of the files for which defendant was convicted of possessing(see People v Petke, 125 AD3d1103, 1104 [2015], lv granted 25 NY3d 1075 [2015]). Further, it was alsoestablished, by legally sufficient evidence, that defendant knowingly possessed the subjectimages and videos as he exercised dominion and control by downloading the images and videosthat were found on his computer (see People v Kent, 19 NY3d at 303).
[*3] As to the legal sufficiency of the convictions for promotinga sexual performance by a child, a person is guilty of this crime when, "knowing the characterand content thereof, he [or she] produces, directs or promotes any performance which includessexual conduct by a child less than seventeen years of age" (Penal Law § 263.15)."Promote" is statutorily defined to mean "to procure, manufacture, issue, sell, give, provide, lend,mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit oradvertise, or to offer or agree to do the same" (Penal Law § 263.00 [5]). As detailedin our legal sufficiency analysis for the convictions of possession of a sexual performance by achild, defendant's knowledge of the character and content of the images was established bylegally sufficient evidence. Also, as the People proffered evidence that established that Tolias,while on the ARES program, downloaded the subject images and videos from defendant's IPaddress, defendant knowingly logged into the ARES program, used ARES extensively todownload pornography and knew how ARES worked generally and that ARES is a peer-to-peerfile sharing program, the evidence is legally sufficient to support the promoting element for theconvictions of promoting a sexual performance by a child (see Penal Law§ 263.15; People v Petke, 125 AD3d at 1105).
Contrary to defendant's contention, the verdict was not against the weight of the evidence. "Aweight of the evidence review requires this Court to first determine whether, based on all thecredible evidence, a different finding would not have been unreasonable and then weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony to determine if the verdict is supported by the weight ofthe evidence" (People v Perry, 154AD3d 1168, 1169 [2017] [internal quotation marks, ellipsis, brackets and citationsomitted]). Defendant testified that, while his computer contained thousands of images containingadult pornography, only 20 images deemed to be child pornography were discovered on his harddrive, which were the result of bulk downloads. Defendant also testified that he believed that hehad his ARES software set on a "do not share" setting and that there were other individuals whomay have had access to his computer. Based upon this testimony, a different verdict would nothave been unreasonable, as the jury could have found defendant's testimony credible anddetermined that he did not possess the requisite knowledge to sustain these convictions (seePeople v Bleakley, 69 NY2d at 495; People v Perry, 154 AD3d at 1171; People v Taft, 145 AD3d 1090,1091-1092 [2016], lv denied 29 NY3d 953 [2017]).
While defendant contends that his testimony established that he lacked the requisiteknowledge needed to sustain his convictions, the testimony of the DHS investigators establishedthe contrary. Given defendant's testimony that child pornography sometimes downloaded as aresult of his bulk searches for teen pornography, it is not unreasonable to infer that defendant hadknowledge of the character and content of these images and videos and that he knowinglypossessed said images and videos. Defendant further testified that he would leave ARES runningto download large quantities of pornography and if he saw something that disturbed him, healways tried to delete it. Also, despite testifying that he thought his ARES program was not setup to share files that he had downloaded, Aiello's testimony established that the default setting ofthe ARES software is to allow for file sharing and that ARES users who do not share their filesare typically not allowed by other users to download their files. As defendant's testimonyestablished that he knew how to use ARES and that he used it extensively to find and downloadpornography, it is not unreasonable to infer that defendant knew that he was "circulating" and"disseminating"—hence "promoting"—the files that he had downloaded (Penal Law§§ 263.00 [5]; 263.15; see generally People v Taft, 145 AD3d at1091-1092). "[A]fter viewing the evidence in a neutral light and giving deference to the jury'scredibility assessments," we find that the verdict was not against the weight of the evidence (People v Stocum, 143 AD3d 1160,1163 [2016]).
[*4] Defendant also contends that thePeople failed in their Brady obligation to turn over metadata of the subject files, which hefurther contends would have allowed him to prove that he was not physically present at hiscomputer on the dates when the files were downloaded. County Court reasoned that it did not seeanything exculpatory about the metadata, and we agree. "To establish a Brady violation, adefendant must show that (1) the evidence is favorable to the defendant because it is eitherexculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3)prejudice arose because the suppressed evidence was material" (People v Fuentes, 12 NY3d 259,263 [2009] [citation omitted]). "Absent a specific request by [the] defendant for the [piece ofevidence], materiality can only be demonstrated by a showing that there is a reasonableprobability that it would have changed the outcome of the proceeding[ ]" (id. [internalquotation marks and citations omitted]).
Even if there had been indisputable evidence to suggest that defendant was not at home whensome of the files were downloaded, this would not be exculpatory given that the testimony at trialestablished that he ran bulk searches continuously based on the terms that he had previouslyactively searched for. Therefore, there was no Brady violation because there is nothing inthe record that tends to prove that the metadata in question was exculpatory or that the Peoplesuppressed such evidence. Nor is there evidence to suggest that the result of the trial would havebeen any different if such metadata had been provided by the People (see People v Garrett, 23 NY3d878, 891 [2014]; People v Fuentes, 12 NY3d at 263).
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:County Court dismissed onecount of possessing a sexual performance by a child (count 19), finding that there was no sexualconduct exhibited as it related to the specific file at issue.