| People v Urtz |
| 2019 NY Slip Op 07808 [176 AD3d 1485] |
| October 31, 2019 |
| Appellate Division, Third Department |
[*1](October 31, 2019)
| The People of the State of New York,Respondent, v Christopher Urtz, Appellant. |
Dominic J. Cornelius, Public Defender, Hudson (Michael C. Howard of counsel), forappellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.
Pritzker, J. 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 asexual performance by a child (four counts).
Defendant was charged by indictment with 10 counts of possessing a sexual performance bya child arising out of an incident in May 2014 when defendant's wife opened a messagingapplication known as "KIK"[FN1]on defendant's cell phone and discovered an image of child pornography. Police searcheddefendant's cell phone—both manually and with forensic technology—andrecovered seven images and three videos, which are the subject of this case. At trial, defensecounsel, in the course of his trial order of dismissal, conceded that the images and videosincluded a sexual performance by a child and challenged only the elements involving knowingpossession 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 foreach count, which were to run consecutively. Defendant appeals.
Defendant contends that the verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence. When a defendant raises a claim of legal sufficiency of theevidence, "[the Court] view[s] the evidence in the light most favorable to the People andevaluate[s] whether there is any valid line of reasoning and permissible inferences which couldlead a rational person to the conclusion reached by the jury on the basis of the evidence at trialand as a matter of law satisfy the proof and burden requirements for every element of the crimecharged" (People v Kaplan, 168AD3d 1229, 1229-1230 [2019] [internal quotation marks and citations omitted], lvdenied 33 NY3d 1032 [2019]; see People v Bleakley, 69 NY2d 490, 495 [1987])."When undertaking a weight of the evidence review, [the Court] must first determine whether,based on all the credible evidence, a different finding would not have been unreasonable and thenweigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported by theweight of the evidence. When conducting this review, [the Court] consider[s] the evidence in aneutral light and defer[s] to the jury's credibility assessments" (People v Gill, 168 AD3d 1140,1140-1141 [2019] [internal quotation marks and citations omitted]; see People v Pietoso, 168 AD3d1276, 1277 [2019], lv denied 33 NY3d 1034 [2019]). As relevant here, "[a] person isguilty of possessing a sexual performance by a child when, knowing the character and contentthereof, he [or she] knowingly has in his [or her] possession or control, or knowingly accesseswith intent to view, any performance which includes sexual conduct by a child less than sixteenyears of age" (Penal Law § 263.16). "While this crime requires proof that thedefendant knew of the character and content of the performance, it also specifically requires thatthe defendant knowingly had the sexual performance by a child in his or her possession orcontrol. 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 AD3d1052, 1053 [2018] [internal quotation marks and citations omitted]; see People v Henry, 166 AD3d1289, 1290 [2018]).
Ryan Hogan—a State Trooper—testified that, on May 6, 2014, he arrived atdefendant's home after defendant's wife opened unread messages on the KIK account ondefendant'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 imagethat defendant received was, in fact, child pornography. After Hogan secured the phone anddefendant signed a voluntary consent form to search the phone, defendant conceded to Hoganthat the KIK account belonged to him. Defendant then provided Hogan with the username for theaccount—"I like 'em younger"—as well as the corresponding email address andpassword. Chad Drozd—an investigator with the State Police—testified that he andanother investigator subsequently interviewed defendant, and that this interview wasvideotaped.[FN2]
Timothy Milone—an investigator with the State Police in the computer crimesunit—explained that he extracted data from defendant's phone and copied it onto a thumbdrive, 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 extractionand examination, Milone was able to obtain, and testified about, the various dates and timeswhen the videos (exhibit Nos. 8, 9, 10 [hereinafter the videos]) and two of the images (exhibitNos. 1, 2) were placed on the phone.[FN3] As to exhibit No. 1, Milone testified that thisphotograph was found in the Digital Camera Internal Memory, which is a subfolder that cannotbe located on the phone without the use of forensic tools because it was contained in the cachememory file.[FN4] Miloneexplained that images in the cache file were once on the screen but had been removed for onereason 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 temporarystorage area." As to the videos, Milone explained that they were found in a file, called "CO dothappy bits," in the video KIK application—a video player that is an application "differentand separate from [the] KIK" application. The videos had not been deleted and Milone showedthe jury how they could be accessed directly from defendant's phone, without the use of aforensic tool.[FN5] Milonealso testified that, although the videos came through the KIK application, Milone was unable totell 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, Milonetestified that he could not conclude who was in possession of the phone when the images werereceived.
After the People rested, defendant proffered his own proof, including the testimony ofBrenda 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 roomwhen she heard defendant's wife become "irate" in the kitchen. According to Raup, defendant'swife was upset about an image of a young child that she had found on defendant's phone. At thewife's suggestion, the police were called and, when they arrived, defendant's wife showed Hogandefendant's phone.
Defendant also testified to the events of the evening of May 6, 2014. He explained that he didnot "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 alsoused the phone, and that no password was required to access it. Defendant testified that, atapproximately 5:30 p.m., his wife was checking her bank account on the subject phone when shenoticed two messages come in from KIK messenger. Defendant conceded that he had signed upfor a KIK account and that he used the name "I like 'em younger, 37-year-old guy" because, indifferent dating websites, "a lot of older ladies were messaging [him] constantly" and he "wantedpeople 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 withother users and also to get pic[tures] of adult pornography," which included both videos andimages. 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 namebecause he had changed it since then. Defendant testified that he was not able to change hisusername. Defendant also testified that he never viewed exhibit Nos. 8 or 9, but that he did seeexhibit No. 10 when it was sent to him in an instant message. According to defendant, he openedthe video and, after viewing it, he closed it out and deleted the message. Defendant claimed thathe does not know where the picture goes when it is deleted from a cell phone.
Despite telling Drozd during his interview that he had not received any child pornographyprior to May 6, 2014, defendant testified at trial that, in fact, he had received child pornographybefore this date but claimed that it was not of children "that young." Defendant admitted at trialthat he had not reported this to the police, despite having told the police during his interview thathe would have reported it to the police had he received child pornography prior to receivingexhibit No. 2. Defendant also acknowledged that he told the police that he had saved pictures of"16, 17 [and] 18 year olds, [but] not any younger than that." He was also presented with his priorstatement to police wherein he stated, "There are some that, you know, I totally downloaded andeverything, um, but, I mean, I don't know the exact age of them" and where he confirmed that hedownloaded all of the videos from the KIK application and traded some "questionablematerial."[FN6] When askedif he recalled telling Milone that he had somewhere between one and five videos of youngchildren on his phone, defendant responded affirmatively. Defendant stated that he, however, didnot view all the materials sent to him because if "[he] notice[d] that it didn't look right, [he]would close it out." Defendant testified that, whenever he liked a video, he would save it in thegallery of pictures and videos. He further testified that he had never seen the video KIKapplication on his phone and he did not know videos were saved there; however, oncross-examination, when confronted with testimony from his interview, defendant conceded thathe knew of the video KIK application and knew that videos were saved there.
Turning first to defendant's legal sufficiency arguments, defendant asserts that, like counts 3through 7, of which he was not convicted, defendant could not access exhibit No. 1 through hisphone and, thus, the evidence is legally insufficient to prove that he knowingly accessed orpossessed exhibit No. 1. Although there is little evidence establishing that exhibit No. 1 was onthe screen more than once or that defendant was using the phone at the time the image wasaccessed (compare People v Yedinak, 157 AD3d at 1053), viewing the evidence in thelight most favorable to the People and, in light of defendant's username and his admission that hesaved pornographic material involving 16, 17 and 18 year olds, that he traded "questionablematerial," that he was the primary user of the cell phone and that he received pictures of thisnature before, there is a valid line of reasoning and permissible inferences that could lead arational person to conclude that defendant knowingly accessed exhibit No. 1 with the intent toview it on his phone (see People vPetke, 125 AD3d 1103, 1103-1104 [2015]). As to his legal sufficiency claim withrespect to counts 8, 9 and 10, inasmuch as the video KIK application was on defendant's phoneand he conceded to knowing of its existence and that files are saved there, and in light oftestimony establishing that defendant downloaded videos involving child pornography, theevidence supporting these challenged counts was also legally sufficient (see People vHenry, 166 AD3d at 1290). With respect to defendant's weight of the evidence challenge,inasmuch as the jury could have credited defendant's testimony and found that he did not havethe requisite knowledge to sustain these convictions, a different verdict would not have beenunreasonable (see People vMadigan, 169 AD3d 1467, 1469 [2019], lv denied 33 NY3d 1033 [2019];People v Henry, 166 AD3d at 1292). However, defendant's testimony that he did notknowingly access or possess the subject materials was challenged by his earlier statements thathe had, in fact, saved pornographic videos involving children. Also, defendant testified that hehad recently changed his display name—"I like em' younger"—to omit "18 plus,"and he misrepresented to police that he had never received similar images involving children.Thus, "[g]iven this evidence, a jury could, as it did here, reasonably discredit defendant'stestimony and determine that defendant knew of the character and content of the videos andimage[ ] and knowingly possessed [and accessed] them" (People v Henry, 166 AD3d at1292; see People v Yedinak, 157 AD3d at 1055-1056). Accordingly, when viewing theevidence in a neutral light and deferring to the jury's credibility determinations, we find that theverdict was not against the weight of the credible evidence (see People v Yedinak, 157AD3d at 1056).[FN7]
Defendant contends that County Court should not have permitted the People to amend theindictment to include the language criminalizing "access with intent to view" because the grandjury was instructed without such language and, thus, the amendment constituted a change in thetheory of their case. We disagree. "At any time before or during trial, the court may, uponapplication of the [P]eople and with notice to the defendant and opportunity to be heard, orderthe amendment of an indictment with respect to defects, errors or variances from the proofrelating to matters of form, time, place, names of persons and the like, when such an amendmentdoes not change the theory or theories of the prosecution as reflected in the evidence before thegrand jury which filed such indictment, or otherwise tend to prejudice the defendant on themerits" (CPL 200.70 [1]; see People vGuerrero, 28 NY3d 110, 121 [2016]; People v Hawkins, 130 AD3d 1298, 1301-1302 [2015], lvdenied 26 NY3d 968 [2015]).
A review of the record reveals that the prosecutor, prior to the presentation of any evidence,thoroughly instructed the grand jurors on the law and, during these instructions, included thelanguage "knowingly accessed with intent to view." However, after the close of proof, whileanswering questions posed by the grand jurors prior to deliberations, the prosecutor read aportion of the relevant law and omitted the language "knowingly accessed with intent to view."Also, defendant's contention that the amendment was improper is belied by his demand for a billof particulars wherein he stated, "With regard to each [c]ount of the [i]ndictment, set forthwhether it is alleged that [defendant] 'knowingly accessed with intent to view' such image and/orvideo." In reply to that particular demand, the People responded by stating, "With regard to each[c]ount of the [i]ndictment, the defendant knowingly accessed with intent to view such image onor before [May 6, 2014]." Defendant's demand and the People's response were filedapproximately six months prior to the People's order to show cause requesting permission toamend the indictment. As such, it is evident from the record that the amendment to theindictment did not alter the theory of the case or prejudice defendant and, thus, the court did noterr in granting the amendment (see CPL 200.70 [1]; People v Hall, 125 AD3d 1095, 1096 [2015]; People vGiordano, 274 AD2d 748, 749 [2000]).
We are similarly unpersuaded by defendant's allegation that he was deprived of the effectiveassistance of counsel because defense counsel conceded that all 10 items that were the subject ofthe indictment depicted a sexual performance by underage children. " '[C]ounsel will notbe found to be ineffective on the basis that he or she failed to make an argument or motion thathas little or no chance of success' " (People v Brown, 169 AD3d 1258, 1260 [2019], lv denied33 NY3d 1029 [2019], quoting People vThorpe, 141 AD3d 927, 935 [2016], lv denied 28 NY3d 1031 [2016]). Here,although the jury must determine whether the pornographic material represents actual children(see People v Foley, 257 AD2d 243, 253-254 [1999], affd 94 NY2d 668 [2000],cert denied 531 US 875 [2000]), because it is apparent from the videos and images,which the jury had the opportunity to view, that the sexual acts involve children, defense counselwas not ineffective for failing to raise an argument that had little chance of success (see People v Lindsey, 172 AD3d1764, 1767 [2019]; People v Brown, 169 AD3d at 1260). Furthermore, because thetheory of the defense's case was that the People failed to prove that defendant knowinglypossessed the images and the videos, defendant fails to establish a lack of legitimate trial strategyin defense counsel's decision to concede the age of the minors (see People v Ildefonso, 150 AD3d1388, 1389 [2017], lv denied 30 NY3d 980 [2017]; People v Perry, 148 AD3d 1224,1225 [2017]). Viewing counsel's performance in totality, and mindful that defendant wasacquitted of 6 of the 10 charges against him, we find that defendant received meaningfulrepresentation (see People vValentin, 173 AD3d 1436, 1441 [2019], lv denied 34 NY3d 954[2019]; People v Turner, 172 AD3d1768, 1772 [2019], lv denied 34 NY3d 939 [2019]).
Finally, we find no merit to defendant's contention that the sentence imposed was harsh andexcessive. " 'Sentencing generally rests within the discretion of the trial court' "(People v Turner, 172 AD3d at 1773, quoting People v Caruso, 34 AD3d 863, 865 [2006], lv denied 8NY3d 879 [2007]). Moreover, "[a] sentence that falls within the permissible statutory range willnot be disturbed unless it can be shown that the sentencing court abused its discretion orextraordinary circumstances exist warranting a modification" (People v Vega, 170 AD3d 1266,1274 [2019], lv denied 33 NY3d 1074 [2019]; People v Malloy, 152 AD3d 968, 971 [2017], lv denied 30NY3d 981 [2017]). In imposing sentence, County Court considered defendant's "completedisregard of the criminality involved" in his conduct, as well as the fact that defendant repeatedlycommitted the same crime. In addition, notwithstanding the recommendation in the presentenceinvestigation report that, with education and counseling, probation would be an appropriatesentence, the sentence imposed was within the permissible statutory range and less than themaximum allowed sentence (see Penal Law § 70.00 [2] [e]; [3] [b]; People v Gassner, 118 AD3d1221, 1221-1222 [2014], lv denied 23 NY3d 1062 [2014]; People v Smoke, 15 AD3d 729,730 [2005]). In view of the foregoing, we find no extraordinary circumstances or abuse ofdiscretion that warrant a reduction of the sentence in the interest of justice (see People v Pitt, 170 AD3d 1282,1286 [2019], lv denied 33 NY3d 1072 [2019]; People v Guzy, 167 AD3d 1230, 1238 [2018], lv denied 33NY3d 948 [2019]).
Egan Jr., J.P., Clark, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:KIK was described as amessaging service that can be used on devices with or without cellular plans to communicatewith others via text message.
Footnote 2:The video of the interview waspublished to the jury and a written transcript of the interview was also provided to the jury.
Footnote 3:The first 10 exhibits admitted attrial by the People correspond respectively to the 10 counts in the indictment.
Footnote 4:Exhibit Nos. 2 through 7 werealso located in the cache memory file.
Footnote 5:The location of the video KIKapplication on the phone, the location of the videos in the folder and the accessibility of thevideos through the phone were corroborated by defendant's expert witness.
Footnote 6:Defendant later clarified that hisreference to "questionable material" referred to adult pornography.
Footnote 7:Given that defendant's"convictions are supported by legally sufficient trial evidence, [his] challenges to that legalsufficiency of the evidence presented to the grand jury and the instructions given during theproceeding are precluded" (People vFlower, 173 AD3d 1449, 1454 n [2019] [internal quotation marks and citationsomitted], lv denied 34 NY3d 931 [2019]; see CPL 210.30 [6]).