| People v Wheeler |
| 2012 NY Slip Op 06661 [99 AD3d 1168] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MatthewWheeler, Appellant. |
—[*1] Matthew Wheeler, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered June 1, 2010. The judgment revoked defendant's sentence of probation and imposed asentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted, upon his plea of guilty, of sexual abuse in the firstdegree (Penal Law § 130.65 [3]), for having subjected a five-year-old girl to sexual contactby rubbing her buttocks for his own sexual gratification. Defendant was sentenced to a splitsentence of incarceration and probation and was subsequently adjudicated a level three sexoffender (see People v Wheeler, 59AD3d 1007 [2009], lv denied 12 NY3d 711 [2009]). Pursuant to condition No. 5 ofhis probation, defendant is required to obtain "suitable employment" or "pursue a course of studyor vocational training." Pursuant to condition No. 16 of his probation, which was imposed basedon his status as a sex offender, defendant is not permitted to "own, possess or have under [his]control items deemed by the probation officer or treatment provider to be pornographic orsexually stimulating."
During defendant's period of probation, defendant's probation officer and other members ofthe probation department conducted a search of defendant's home. During the search, theprobation officers discovered a laptop computer with 113 images of prepubescent girls in variousexplicit poses and stages of undress stored therein (images). Defendant's probation officer filedan information for delinquency alleging that defendant violated condition No. 16 of his probationbased on defendant's possession of the images on his computer. The officer also alleged thatdefendant violated condition No. 5 of his probation based on his failure to be suitably employedor enrolled in school. Following a hearing, Supreme Court determined that defendant violated hisprobation, revoked his probation and sentenced him to a determinate term of incarceration.Defendant appeals. All of the contentions addressed herein are contained in defendant's mainbrief unless otherwise noted.[*2]
"A violation of probation proceeding is summary innature and a sentence of probation may be revoked if the defendant has been afforded anopportunity to be heard" (People vPerna, 74 AD3d 1807, 1807 [2010], lv denied 17 NY3d 716 [2011] [internalquotation marks omitted]; see People vDeMarco, 60 AD3d 1107, 1108 [2009]). The People are required to establish by apreponderance of the evidence that defendant violated the terms and conditions of his probation(see CPL 410.70 [3]; People vPringle, 72 AD3d 1629, 1629 [2010], lv denied 15 NY3d 855 [2010]; People v Bergman, 56 AD3d1225, 1225 [2008], lv denied 12 NY3d 756 [2009]), and "the decision to revoke hisprobation will not be disturbed, [absent a] 'clear abuse of discretion' " (People v Barber,280 AD2d 691, 694 [2001], lv denied 96 NY2d 825 [2001]; see Bergman, 56AD3d at 1225).
Defendant contends in his main and pro se supplemental briefs that the People failed toestablish by a preponderance of the evidence that he violated condition No. 5 (see People v Garner, 56 AD3d951, 952 [2008], lv denied 12 NY3d 783 [2009]; People v Green, 255 AD2d923, 923 [1998], lv denied 93 NY2d 853 [1999]; see generally Bergman, 56AD3d at 1225). That contention lacks merit. We defer to the court's determination crediting thetestimony of defendant's probation officer, who testified that defendant failed to obtain "suitableemployment" or "pursue a course of study or vocational training" despite his ability to do so(see Perna, 74 AD3d at 1807; DeMarco, 60 AD3d at 1108).
Defendant further contends in his main and pro se supplemental briefs that the court erred inrefusing to suppress the evidence recovered by the probation officers when they searched hishome and computer. We reject that contention. While on probation, a defendant still retains theconstitutional right to be free from "unreasonable searches and seizures" (People vHuntley, 43 NY2d 175, 181 [1977]; see People v Hale, 93 NY2d 454, 459 [1999]).Nevertheless, pursuant to a condition of his probation, defendant consented to warrantlesssearches by probation officers of, inter alia, his home in order for those officers to monitor hiscompliance with the conditions of his probation, and defendant further consented to "seizures ofany items found to be in violation" of those conditions (see Hale, 93 NY2d at 460).Condition No. 16 of his probation, which as noted prohibits defendant from owning, possessingor having under his control "pornographic" or "sexually stimulating" items, was "individuallytailored" to defendant's underlying sex offense and "reasonably related" to his rehabilitation andsupervision (id. at 462; see People v Wahl, 302 AD2d 976, 976 [2003], lvdenied 99 NY2d 659 [2003]; People v Schunk, 269 AD2d 857, 857 [2000]). "Assuch, [those conditions] provided an appropriate basis for the search and seizure of [defendant'shome and computer]" (Hale, 93 NY2d at 462). Further, the record establishes thatdefendant violated the terms of his probation on two prior occasions by failing to participate in asex offender treatment program, and we thus conclude that the decision of defendant's probationofficer to search his home and computer was " 'rationally and reasonably related to theperformance of the [probation] officer's duty' " to monitor the terms of defendant's probation (People v Johnson, 49 AD3d 1244,1245 [2008], lv denied 10 NY3d 865 [2008], quoting Huntley, 43 NY2d at 181;see Hale, 93 NY2d at 462).
Defendant also contends that the term "sexually stimulating" as used in condition No. 16 isunconstitutionally vague and unenforceable. Preliminarily, we note that defendant does notchallenge the term "pornographic" as used in that condition as being unconstitutionally vague andunenforceable. Consequently, even assuming, arguendo, that the term "sexually stimulating" isunconstitutionally vague, we conclude that reversal is not required because, as discussedinfra, the court properly determined that the images were pornographic in nature and thuscondition No. 16 is enforceable (see People v Tucker, 302 AD2d 752, 753 [2003]). Inany event, we conclude that the term "sexually stimulating" as used in condition No. 16 "issufficiently explicit to inform a reasonable person of the conduct to be avoided" and therefore isnot unconstitutionally vague (id.; see People v York, 2 AD3d 1158, 1160 [2003]; People vHowland, 108 AD2d 1019, 1020 [1985]; see generally People v Stuart, 100 NY2d412, 420-421 [2003]). Given the nature of defendant's underlying [*3]sex offense and his status as a level three sex offender, we concludethat defendant could not have reasonably believed that his possession of the images, which depictprepubescent females in various states of undress and sexually suggestive poses, was permittedby condition No. 16 (see People v Bologna, 67 AD2d 1004, 1004 [1979]; see alsoFarrell v Burke, 449 F3d 470, 491 [2006]; see generally Stuart, 100 NY2d at420-421).
Defendant next contends that the images are not "pornographic" or "sexually stimulating"and that the People thus failed to prove by a preponderance of the evidence that he violatedcondition No. 16 (see CPL 410.70 [3]; Pringle, 72 AD3d at 1629;Bergman, 56 AD3d at 1225). We reject that contention, although we note in any eventthat sufficient evidence of the violation of condition No. 5 alone provided a proper basis for thecourt to conclude that defendant violated his probation. Here, because the images depictedchildren, we must consider the definition of "child pornography" in resolving the issue whetherthe images are "pornographic." In determining whether the images were "pornographic," thecourt considered the federal definition of the term "child pornography," and we agree that federallaw provides guidance under these circumstances (see generally People v Horner, 300AD2d 841, 842-843 [2002]). Federal law provides that "the lascivious exhibition of the genitalsor pubic area of a minor constitutes child pornography" (United States v Hill, 459 F3d966, 969 n 2 [2006], cert denied 549 US 1299 [2007]; see 18 USC § 2256[2] [B] [iii]; [8]). The question whether a visual depiction of a minor constitutes a "lasciviousexhibition of the genitals or pubic area" is determined by consideration of the following factors:"1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; 2)whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generallyassociated with sexual activity; 3) whether the child is depicted in an unnatural pose, or ininappropriate attire, considering the age of the child; 4) whether the child is fully or partiallyclothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness toengage in sexual activity; [and] 6) whether the visual depiction is intended or designed to elicit asexual response in the viewer" (United States v Dost, 636 F Supp 828, 832 [1986],affd 812 F2d 1239 [1987], 813 F2d 1231 [1987], cert denied 484 US 856[1987]; see Horner, 300 AD2d at 842-843). Notably, "all of the aforementioned factorsneed not be present" in order to determine that materials constitute child pornography where, ashere, there is no statutory provision to the contrary, and nothing in Dost requires that "thegenitalia be uncovered" (Horner, 300 AD2d at 843). "Hence, one must consider thecombined effect of the setting, attire, pose and emphasis on the genitals and whether it isdesigned to elicit a sexual response in the viewer, 'albeit perhaps not the "average viewer," butperhaps in the pedophile viewer' " (id., quoting Dost, 636 F Supp at 832).
Based on the foregoing, we agree with the court that the images are "pornographic" inasmuchas the focal point of many of the images is on the child's genitalia or pubic area. Further, althoughno child's genitalia is actually uncovered in the images, many of the children are in unnaturalposes and are dressed in age-inappropriate attire; most of the children are only partially clothed;many of the images suggest sexual coyness or willingness on the part of the child to engage insexual activity; and, most importantly, the "combined effect" of the foregoing factors appears tohave been "designed to elicit a sexual response" in defendant, who was convicted of sexuallyabusing a five-year-old girl (id.). We further agree with the court in any event that theimages were "sexually stimulating" based on the common meaning of that term (seeWebster's Third New International Dictionary 2082, 2244 [2002] [defining "sexually" as "ina sexual manner" or "with regard to or by means of sex" and defining "stimulate" as "to excite toactivity or growth or to greater activity or exertion" or "stir up," as in to "animate," "liven" or"arouse"]), particularly given the age, dress, and poses of the children depicted in the images andconsidering the nature of defendant's underlying conviction and his status as a sex offender.
Contrary to defendant's further contention in his main and pro se supplemental briefs, the[*4]People were not required pursuant to condition No. 16 toprove that he "knowingly possessed" the images and instead were required to prove only that he"own[ed], possess[ed] or [had them] under [his] control." The testimony at the hearingestablishes that the probation officers discovered the computer during their search of defendant'shome and that defendant admitted to the probation officers at the time of the search that thecomputer belonged to him. We therefore conclude that the court properly determined that thePeople met their burden of proving by a preponderance of the evidence that defendant owned,possessed, or controlled the images in violation of condition No. 16 (see Pringle, 72AD3d at 1629; Tucker, 302 AD2d at 753; see generally Bergman, 56 AD3d at1225). We further conclude that the sentence is not unduly harsh or severe.
Finally, we have reviewed the remaining contentions in defendant's pro se supplemental briefand conclude that none requires modification or reversal of the judgment.Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.