| People v Tucker |
| 2012 NY Slip Op 03678 [95 AD3d 1437] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vChristopher J. Tucker, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Stein, J. Appeals (1) from a judgment of the County Court of Washington County(McKeighan, J.), rendered September 25, 2009, upon a verdict convicting defendant of thecrimes of possessing a sexual performance by a child and perjury in the first degree, and (2) bypermission, from an order of said court, entered October 17, 2011, which denied defendant'smotion 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 certainallegations of sexual misconduct by defendant, when they obtained information suggesting thattwo computers located in defendant's residence contained images of individuals under 16 years ofage engaging in sexual conduct. In the course of the investigation, these computers—adesktop computer used by all members of defendant's household and a laptop computer primarilyused by defendant's 12-year-old daughter—were searched. After the computers wereexamined at the computer crime unit of the State Police forensics laboratory (hereinafterforensics lab), evidence was found on the desktop's hard drive consisting of, as pertinent here,hundreds of images, videos and Web sites relating to sexual activities involving persons underthe age of 16.
Defendant was subsequently charged by grand jury indictment with, among other things,[*2]possessing a sexual performance by a child (three counts) andperjury in the first degree. After a jury trial, defendant was convicted of one count of possessing asexual performance by a child[FN1]and perjury in the first degree. Following his sentencing, defendant moved pursuant to CPL440.10 to vacate the judgment of conviction asserting, among other things, Rosarioviolations; County Court denied this motion.[FN2]Defendant now appeals from both the judgment of conviction and the order denying hispostconviction motion.
We affirm. Preliminarily, we note that defendant's challenge to the legal sufficiency of theevidence presented at trial is unpreserved for this Court's review because his motion for a trialorder of dismissal with respect to the charges of which he was convicted was not made withsufficient particularity (see People vHawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]; People v Malcolm, 74 AD3d 1483,1484 n [2010], lv denied 15 NY3d 954 [2010]). Nevertheless, as defendant also arguesthat the verdict is against the weight of the evidence (see CPL 470.15 [5]), we willnecessarily evaluate whether the elements of the crimes charged were adequately proved at trial(see People v Danielson, 9 NY3d342, 348-349 [2007]; People vGarcia, 79 AD3d 1248, 1250 [2010], lv denied 16 NY3d 797 [2011]; People v Jones, 79 AD3d 1244,1246 [2010], lv denied 16 NY3d 832 [2011]).
In order to convict defendant of possessing a sexual performance by a child, the People wererequired to prove that defendant knowingly had "in his possession or control any performancewhich includes sexual conduct by a child less than [16] years of age" with knowledge of itscontent and character (Penal Law § 263.16; see People v Horner, 300 AD2d 841,842 [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 JosephBearor 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 examinedby Kimberly Cardona, a computer forensic analyst. Cardona testified in explicit detail as to howshe conducted her examination of the computers, which ultimately revealed that the desktopcomputer contained, as relevant here, images, described by Cardona as the remnants of a videoportraying children engaging in sexual conduct, as well as "wipe-and-erase" software. Heranalysis also concluded that the laptop computer contained information that suggested that theremay have been files associated with child pornography and "wipe-and-erase" software on thatcomputer. Regarding the desktop computer, Cardona explained that her search of variouskeywords resulted in "thousands of hits" in areas of the computer's hard drive associated with theuser'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 arelocated—as well as in certain "temporary" files.[FN3]Using retrieval software, Cardona was able to recover the images [*3]and files from the unallocated space and temporary files. She thencreated a report which, among other things, contained a history of Internet sites bearing childpornography 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 ofimages depicting children engaged in sexual activity—including oral sex—whichwere downloaded from a peer-to-peer file sharing program.[FN4]James Fuchs, an experienced pediatrician, testified that the images that defendant was ultimatelyconvicted of possessing depicted a female who was "pre-pubertal or, at best very, very early inpuberty, and would definitely be less than 16 years old . . . 13 or 14 at the most,probably less."[FN5]
According to Tucker's testimony, the desktop computer was kept in the living room of thehome that she shared with defendant and their children, and defendant routinely used it to look atpornography. She further testified that defendant also used the laptop computer, and sheproduced a photograph showing him using it with friends. Tucker stated that she did not knowwhat "wipe-and-erase" software was, she never used the computer to search for childpornography, she monitored the use of the computer by their daughters and the friends of theiroldest daughter and had no knowledge that they had ever used it for that purpose. Finally, thePeople produced defendant's grand jury testimony that he used the desktop computer and had, atone time, upgraded its memory, which required that he physically open it and place the memorywithin it.
Viewed in its totality, the evidence demonstrated the existence of a video containing imagesof a sexual performance by a person under the age of 16, as well as "wipe-and-erase" software,on a computer regularly used by defendant. While defendant elicited testimony that multipleother individuals, including Tucker and their oldest daughter, had access to the desktopcomputer, Tucker testified that neither of them viewed child pornography and there was noevidence that anyone else actually used the computer. Further, whereas the testimonydemonstrated that defendant had sufficient knowledge of computers to utilize the"wipe-and-[*4]erase" software in an attempt to delete the illicitimages contained on the hard drive, no other known user of the desktop computer had suchknowledge. Even if a different finding would not have been unreasonable, when we view theevidence in a neutral light and defer to the jury's superior position to determine witnesscredibility (see People v Newland,83 AD3d 1202, 1205 [2011], lv denied 17 NY3d 798 [2011]), we find that the juryaccorded the evidence its proper weight (see People v Romero, 7 NY3d 633, 643-644 [2006]; People vBleakley, 69 NY2d 490, 495 [1987]; People v Rolle, 72 AD3d 1393, 1396 [2010], lv denied 16NY3d 745 [2011]) in determining that defendant knowingly possessed on the desktop computeran image of a sexual performance by a child.
Turning to the perjury charge, the People were required to prove that defendant made swornstatements that were false and consisted of testimony that was " 'material to the action,proceeding or matter in which it [was] made' " (People v Shoga, 89 AD3d 1225, 1229 [2011], lv denied 18NY3d 886 [2012], quoting Penal Law § 210.15). To that end, the People presenteddefendant's testimony before the grand jury that the only time he ever used the laptop computerwas one occasion when he fixed a problem that his daughter was having with the Internetconnection. This testimony was in direct contradiction to Tucker's testimony, both before thegrand jury and at trial, that defendant routinely used the laptop computer, as evidenced by thephotograph depicting one incidence of such use. Thus, the People demonstrated that defendanthad made a sworn statement that was false.
As to materiality, "the statement need not prove directly the fact in issue; it is sufficient if itis circumstantially material or tends to support and give credit to the witness in respect to themain fact . . . Put another way, the test of materiality may be said to be whether thefalse testimony has the natural effect or tendency to impede, influence or dissuade the grand juryfrom pursuing its investigation" (People v Davis, 53 NY2d 164, 171 [1981] [internalquotation marks and citations omitted]). Here, defendant's testimony with regard to his lack ofuse of the laptop computer was material to the grand jury's investigation leading to the instantcharges because defendant was attempting to suggest that other individuals were responsible forthe presence of the images on the desktop, as well as the keyword hits on the laptop (seegenerally People v Davis, 53 NY2d at 170-171; People v Williams, 51 AD3d 1141, 1143 [2008], lv denied10 NY3d 959 [2008]), and witness credibility was a key factor. Accordingly, defendant'sconviction of perjury in the first degree was not against the weight of the evidence (seePeople v Shoga, 89 AD3d at 1229).[FN6]
To the extent that defendant argues that the evidence before the grand jury was not legallysufficient, such challenge is precluded by defendant's conviction of the charges at trial on [*5]legally sufficient evidence (see CPL 210.30 [6]; People v Smith, 4 NY3d 806, 808[2005]; People v Gratton, 51 AD3d1219, 1221 [2008], lv denied 11 NY3d 736 [2008]). However, insofar as defendant'sargument consists of a claimed Rosario violation, it is properly before this Court in thecontext of his appeal from the denial of his CPL 440.10 motion.
Defendant's Rosario arguments relate to one full day of grand jury testimony that wasnot provided to him. As pertinent here, such testimony included that of defendant's daughter andpart of the testimony of Tucker and Bearor. Inasmuch as defendant's daughter never testified attrial, the People's failure to provide her grand jury testimony to defendant was not aRosario violation (see CPL 240.45 [1] [a]; People v Mosby, 69 AD3d 1045, 1048 [2010]; People vMarsh, 248 AD2d 743, 745 [1998], lv denied 92 NY2d 856 [1998]). Although thenondisclosed testimony of Bearor and Tucker does constitute Rosario material, ourreview thereof reveals that it was not relevant to the outcome of the trial and its nondisclosuredid not prejudice defendant (see Peoplev Avery, 80 AD3d 982, 984-985 [2011], lv denied 17 NY3d 791 [2011]).Accordingly, County Court properly denied defendant's CPL 440.10 motion on that basis andreversal of the judgment of conviction is not warranted (see id. at 985; People v Oglesby, 12 AD3d 857,861-862 [2004], lv denied 5 NY3d 792 [2005]).
Defendant's remaining contentions have been examined and found to be lacking in merit.
Peters, P.J., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1: Two counts of the indictmentwere dismissed by County Court following a motion to dismiss by defendant at the close of thePeople's case.
Footnote 2: Defendant also raised suchassertions in a CPL 330.30 motion made prior to sentencing, which County Court also denied.
Footnote 3: Cardona further explained thatfiles may be removed from the unallocated space by using "wipe-and-erase" software, such asthat found on the desktop computer, but that such files may still remain in other areas of thedrive, including "temporary" files, which can be retrieved with proper software. She testified that,although readily available, the use of both "wipe-and-erase" and retrieval software is beyond theabilities of the average computer user.
Footnote 4: Although Cardona found nosuch videos or images in the program's "saved" folder, which would have indicated that they hadbeen completely downloaded, she explained that this could have resulted from a number ofaffirmative acts on defendant's part, including the use of the "wipe-and-erase" program to deletethem from the "saved" folder (see People v Kent, 19 NY3d 290 [2012]).
Footnote 5: Fuchs explained that his opinionwas formulated using the Tanner Staging System, a method that assigns a numeric identifier fromone to five for assessing the stage of puberty that an individual has achieved, with one being apre-pubescent child and five a fully developed adult. Fuchs found that the Tanner Staging Systemplaced the sexual development of the individual in the subject images between stages one andtwo.
Footnote 6: We find unpreserved defendant'sargument that a grand jury may not indict for crimes committed before it, as he failed to move todismiss the indictment on that ground (see CPL 210.20 [1] [c]; People v De Vivo,282 AD2d 770, 772 [2001], lv denied 96 NY2d 900 [2001]). In any event, such argumentis without merit as defendant has failed to make a specific " 'showing of prosecutorialmisconduct, fraudulent conduct or any other error potentially prejudicing the [g]rand [j]ury'sultimate decision' " (People vMaddox, 31 AD3d 970, 973 [2006], lv denied 7 NY3d 868 [2006], quotingPeople v De Vivo, 282 AD2d at 772).