| People v Henry |
| 2018 NY Slip Op 07973 [166 AD3d 1289] |
| November 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Richard Henry, Appellant. |
Alexander W. Bloomstein, Hillsdale, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered August 25, 2014, upon a verdict convicting defendant of the crime ofpossessing a sexual performance by a child (32 counts).
In November 2012, defendant was charged by indictment with 34 counts ofpossessing a sexual performance by a child based upon his alleged possession of videosand digital images depicting child pornography. Following a trial, a jury found defendantguilty of 32 of those charges, and County Court subsequently sentenced him to anaggregate prison term of 4 to 12 years. Defendant now appeals, and we affirm.
Defendant argues that the jury verdict is not supported by legally sufficient evidenceand is against the weight of the evidence. However, because defendant made only ageneral trial motion for dismissal, his legal sufficiency claim is unpreserved for ourreview (see People vChaneyfield, 157 AD3d 996, 996 [2018], lv denied 31 NY3d 1012[2018]; People v Criss, 151AD3d 1275, 1276 [2017], lv denied 30 NY3d 979 [2017]).[FN1] Nevertheless, as part ofour weight [*2]of the evidence review, we determinewhether each element of the charged crime was proven beyond a reasonable doubt (see People v Morris, 140AD3d 1472, 1473 [2016], lv denied 28 NY3d 1074 [2016]; People v Launder, 132 AD3d1151, 1151 [2015], lv denied 27 NY3d 1153 [2016]). In a weight of theevidence review, we assess whether a different verdict would have been unreasonableand, if not, we "weigh conflicting testimony, review any rational inferences that may bedrawn from the evidence and evaluate the strength of such conclusions" to determinewhether, based on the weight of the credible evidence, "the jury was justified in findingthe defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]; see People v Kancharla, 23NY3d 294, 303 [2014]).
To be found guilty of possessing a sexual performance by a child, the evidence mustestablish, as relevant here, that the defendant, "knowing the character and contentthereof, . . . knowingly has in his [or her] possession or control. . . any performance which includes sexual conduct by a child less than [16]years of age" (Penal Law § 263.16). To constitute knowing possession, thedefendant must be aware that he or she is in possession of a sexual performance by achild (see Penal Law § 15.05 [2]; People v Kent, 19 NY3d290, 301 [2012]). In the case of digital images and videos found on an electronicdevice, knowing possession may be inferred from evidence establishing that thedefendant exercised dominion or control over the material on the device (see People vKent, 19 NY3d at 301; seegenerally People v Muhammad, 16 NY3d 184, 188 [2011]). There must be some"affirmative act," such as printing, saving or downloading, to establish such dominionand control (People v Kent, 19 NY3d at 303; see People v Yedinak, 157 AD3d 1052, 1053 [2018]).
At trial, Peter Kozel, an investigator in the State Police computer crime unit, testifiedthat he was assigned to investigate a complaint received by the National Center forMissing and Exploited Children regarding three images of suspected child pornography.Kozel testified that Microsoft forwarded the images to the National Center for Missingand Exploited Children after one of its users uploaded the images to Windows Live, itsonline cloud storage program. The evidence established that law enforcement was able todetermine through records maintained by Microsoft and Time WarnerCable—which were admitted into evidence—the IP address and locationfrom which the three suspect images had been uploaded and that defendant wasultimately identified as the suspected uploader of the images. Kozel, as well as anotherState Police officer involved in the investigation, testified that they subsequentlyinterviewed defendant and that, during the course of that interview, defendant madevarious admissions, including that he had access to the Internet through an accountbelonging to his roommate, that he downloaded files using certain peer-to-peer software,that he had been locked out of his Windows Live account and that he did not contactMicrosoft to restore his account because he felt "guilty" about the reason his account hadbeen locked.[FN2]As established by the evidence, the State Police thereafter obtained a warrant to searchdefendant's home, which resulted in the seizure of defendant's desktop computer, laptopcomputer and digital hard drive.
[*3] Kozeltestified that he conducted a forensic evaluation of all three seized devices and found,among other things, the 32 digital images and two videos of child pornographyunderlying the indictment. With respect to the laptop, Kozel stated that his forensicevaluation revealed the existence of a shortcut to a folder entitled "NROP"—pornspelled backwards—that contained approximately 104,000 files, with 1,706 filesin the root of the folder. Kozel stated that he personally examined each of the files andmarked 166 images and five videos as suspected child pornography. He testified that hefound the three images that were flagged by Microsoft within the "NROP" folder, as wellas the two videos and 26 of the 32 images underlying the charges. Kozel's testimony, aswell as a report that he generated during the course of his forensic examination of thelaptop, demonstrated that certain files from the "NROP" folder, including more than halfof the images charged in the indictment, were listed as "recently accessed" files on thelaptop. Kozel further testified that he extracted two of the underlying images fromdefendant's desktop computer and a thumbnail image of suspected child pornographyfrom defendant's digital hard drive.
Defendant testified that he worked as a computer programmer for 20 years, and thesubstance of his testimony demonstrated that he had extensive knowledge of andexperience with computers. He admitted that he had been locked out of his WindowsLive account and explained that, when he was uploading his "adult material" to thataccount, he realized that the images might be prohibited by Microsoft and canceled theupload. He stated that he did not try to restore his account because he was "embarrassed."Defendant further admitted that he used peer-to-peer file sharing programs to downloadpornography and that he would save that material to a dedicated subdirectory on his Ddrive, entitled "NROP." However, he denied ever knowingly searching for, downloading,saving or viewing child pornography. He testified that he had never before seen the 32images and two videos forming the basis for the charges against him. Defendant statedthat he would use search terms such as "sex" and "adult porn" and would thereafterdownload the search results "en masse." He stated that the downloaded files wouldautomatically save to his dedicated subdirectory—a setting that he consciouslychanged so that he would not share his downloaded files with other peer-to-peerusers—and that he did not look at every downloaded file. On cross-examination,defendant acknowledged that he was familiar with a subfolder within the "NROP" folderentitled "Tales," but he denied familiarity with documents contained therein, whichincluded titles such as "Puberty Blues" and "A Four-Year-Old Took My Virginity."When asked whether he had viewed a recently-accessed file with a title that wasindicative of child pornography, defendant stated that there was "open" Wi-Fi and that itcould have been someone else.
It would not have been unreasonable for the jury to have credited defendant'stestimony that he did not knowingly search for, download, view or save any of theimages underlying the indictment and to have ultimately reached a different verdict(see People v Yedinak, 157 AD3d at 1055). However, defendant's testimony wascontradicted by the evidence establishing that a majority of the images were on the"recently accessed" list on defendant's laptop and had been accessed on different dates.Defendant's denial was further called into question by his admission that he was lockedout of his Windows Live account and that he changed the default setting so that otherpeer-to-peer users could not download his images, as well as his assertion that he wasunfamiliar with the documents in the "Tales" subfolder with titles that made their childpornographic content readily apparent. Given this evidence, a jury could, as it did here,reasonably discredit defendant's testimony and determine that defendant knew of thecharacter and content of the videos and images and knowingly possessed them (seeid. at 1055-1056). Accordingly, after viewing the evidence in a neutral light anddeferring to the jury's credibility [*4]determinations, wefind that the verdict is supported by the weight of the credible evidence (see id.;People v Petke, 125 AD3d1103, 1104-1105 [2015]; People v Tucker, 95 AD3d 1437, 1440 [2012], lvdenied 19 NY3d 1105 [2012]; People v Kent, 79 AD3d 52, 69-70 [2010], mod 19NY3d 290 [2012]).
As a final matter, we are entirely unpersuaded by defendant's contention that hissentence was harsh and excessive.
Garry, P.J., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:At the time thatdefendant made his initial motion for a trial order of dismissal, he also renewed hisearlier application—made during the relevant testimony—for a Fryehearing to evaluate the reliability of certain programs used by the police to connect todefendant's electronic devices and to copy their contents for forensic analysis. To theextent that, on appeal, defendant challenges the lack of a Frye hearing in thecontext of his legal sufficiency arguments and not as a separate argument requesting aremittal for a Frye hearing, we find no basis to consider the issue.
Footnote 2:An employee ofMicrosoft testified that Microsoft scans all images uploaded to Windows Live, removesany images that are suspected to be child pornography and thereafter closes theassociated user account.