| People v Madigan |
| 2019 NY Slip Op 00999 [169 AD3d 1467] |
| February 8, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Douglas J. Madigan, Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.), rendered July 7,2016. The judgment convicted defendant, upon a jury verdict, of possessing a sexual performance by achild (11 counts) and promoting a sexual performance by a child (11 counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of 11counts of possessing a sexual performance by a child (Penal Law § 263.16) and 11counts of promoting a sexual performance by a child (§ 263.15). The conviction arisesfrom an investigation in which the police discovered that the IP address associated with defendant'sInternet provider subscription had been used to share child pornography via peer-to-peer softwareand, upon executing a search warrant, found such content on an external hard drive located in a camperon defendant's property. We affirm.
Defendant contends that County Court erred in refusing to suppress evidence seized from hisproperty because the police exceeded the scope of the search warrant by searching the camper. Wereject that contention. The Federal and State Constitutions provide that warrants shall not be issuedexcept "upon probable cause . . . and particularly describing the place to be searched, andthe persons or things to be seized" (US Const 4th Amend; NY Const, art I, § 12; see People v Cook, 108 AD3d 1107,1108 [4th Dept 2013], lv denied 21 NY3d 1073 [2013]). Although "[p]articularity is requiredin order that the executing officer can reasonably ascertain and identify . . . the persons orplaces authorized to be searched and the things authorized to be seized[,] . . .hypertechnical accuracy and completeness of description" in the warrant is not required (People vNieves, 36 NY2d 396, 401 [1975]; seePeople v Williams, 140 AD3d 1526, 1527 [3d Dept 2016], lv denied 28 NY3d 1076[2016]; People v DeWitt, 107 AD3d1452, 1453 [4th Dept 2013]). Contrary to defendant's contention, we conclude that the police didnot exceed the scope of the search warrant inasmuch as the camper was included in the description ofthe places authorized to be searched (seePeople v Schaefer, 163 AD3d 1179, 1181 [3d Dept 2018], lv denied 32 NY3d 1007[2018]; Cook, 108 AD3d at 1108-1109; cf. People v Caruso, 174 AD2d 1051, 1051[4th Dept 1991]).
We also reject defendant's further contention that reversal is required because he did not waive onthe record his constitutional right to testify. "Although there is a fundamental precept that a criminaldefendant has the right to testify in his or her own defense guaranteed by the Federal and StateConstitutions . . . , it is well settled that, ordinarily, the trial court does not have a generalobligation to sua sponte ascertain if the defendant's failure to testify was a voluntary and intelligentwaiver of his [or her] right" (People vPilato, 145 AD3d 1593, 1595 [4th Dept 2016], lv denied 29 NY3d 951 [2017][internal quotation marks omitted]; see People v Fratta, 83 NY2d 771, 772 [1994]; People v Mauricio, 8 AD3d 1089,1090 [4th Dept 2004], lv denied 3 NY3d 678 [2004]). Contrary to defendant's contention, weconclude that this case "does not present any of the exceptional, narrowly defined circumstances inwhich judicial interjection through a direct colloquy with the defendant [would] be required to ensurethat the defendant's right to testify is protected" (Pilato, 145 AD3d at 1595 [internal quotationmarks omitted]).
Finally, we reject defendant's contention that the verdict is against the weight of the evidence.Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that, although a different verdict would not have been unreasonable, the jurydid not fail to give the evidence the weight it should be accorded (see People v Henry, 166 AD3d 1289, 1290-1292 [3d Dept 2018]; People v Yedinak, 157 AD3d 1052,1055-1056 [3d Dept 2018]; People vTucker, 95 AD3d 1437, 1438-1440 [3d Dept 2012], lv denied 19 NY3d 1105[2012]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Whalen,P.J., Smith, Peradotto, DeJoseph and Winslow, JJ.