People v Garing

[*1] People v Garing 2003 NY Slip Op 51508(U) Decided on April 21, 2003 County Court, Suffolk County, Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 21, 2003
County Court, Suffolk County,



against

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, STEPHEN GARING, Defendant.



CASE NO: 1893-2002



Robert J. Del Col, Esq.

Attorney for Defendant

34 Dewey Street

Huntington, New York 11743-0509

Rosamaria Abbate, Esq.

Assistant District Attorney

Cromarty Court Building

210 Center Drive

Riverhead, New York 11901

C. RANDALL HINRICHS, J.

Defendant has brought a motion seeking dismissal of the instant indictment, suppression of certain evidence, severance of certain counts and requests orders in limine and for expert services. The motion is decided as follows:

Defendant's motion to dismiss counts one through twenty five of the indictment, which charge Possessing a Sexual Performance by a Child in violation of PL § 263.16, on the grounds that the seized materials are protected by the First Amendment to the United States Constitution is denied. The Court of Appeals made clear in People v. Fraser, 96 NY2d 318 (2001) that child pornography is not protected by the First Amendment to the United States Constitution. The Court in Fraser cited the United States Supreme Court decision in Osborne v Ohio, 495 US 103 (1990) regarding a state's authority to prohibit mere possession of child pornography.

People v. Fraser, 96 NY2d 318 (2001) also makes clear that computer images stored on the hard drive of a computer are covered within the plain meaning of "photograph" as defined in PL § 263.00(4.) Accordingly, defendant's motion to dismiss counts one through twenty five of the indictment on the basis that the images in question are not photographs is denied. Questions relating to whether the defendant "knowingly" possessed the images at issue are questions of fact to be resolved at trial.

Although questions relating to whether the images in question depict real persons rather than computer generated or otherwise altered images are generally questions of fact for the jury to resolve, defendant's motion for hearings in limine is granted to the limited extent that the Court will review copies of the pictures, in camera, to determine whether a hearing is required. The People state in their response that copies of the images have previously been supplied to the court in connection with an earlier challenge by defendant to the sufficiency of the evidence [*2]before the grand jury. However, the decision by Judge Anthony R. Corso, now retired, which found the grand jury minutes sufficient to sustain the charges within the indictment does not make specific reference to a review of any exhibits. Accordingly, the People shall deliver, under seal, copies of the images in question for an in camera review by the Court.

Dismissal of counts one through twenty five on the ground that, although the computer may have been found in defendant's home, no "images" were found in defendant's home is also denied. Defendant argues that "information" obtained from the hard drive seized from defendant's home was used by the police to generate the "images" which the People contend were possessed by defendant, but that "images" themselves were never found in the defendant's home. The Fraser decision, supra, also makes clear that this argument must be rejected. The Court in Fraser, as stated above, held that computer images stored on the hard drive of a computer are covered within the plain meaning of "photograph" as defined in PL § 263.00(4.) In so holding, the Court in Fraser agreed with the Appellate Division which concluded that "the graphic images stored in defendant's computer were either photographs that were converted to digital images by a scanner or taken by a digital camera." Fraser at 327. This Court rejects the argument that the images in the instant case were not "in the defendant's home" simply because they were not in the form that photographs traditionally took prior to the advent of the computer.Turning next to the validity of the search warrant which resulted in the seizure of defendant's computer, the Court finds that the warrant was valid. Defendant puts forth two main objections to the issuance of the warrant. First, the presence of Mr. Delgado from Child Protective Services (hereinafter CPS) at the Garing home on April 20, 2002 was a ruse so the police could interrogate defendant and search his home. And second, that Mr. Delgado lied, claiming that a wireless camera had a wire running into the back of defendant's computer, in order to secure the search warrant.

"To be considered adequate, an application for a search warrant must provide the Magistrate with information sufficient to support a reasonable belief that evidence of a crime may be found in a certain place." People v. McCulloch, 226 AD2d 848, 640 NYS2d 914 (3rd Dept. 1996) at 849 citing People v Edwards, 69 NY2d 814 (1987.) Further, the Court of Appeals has held that "search warrant applications should not be read in a hypertechnical manner but rather must be considered in the clear light of everyday experience and accorded all reasonable

inferences." People v. Hanlon, 36 NY2d 549 (1975) at 559.

A review of the "Application and Affidavit" in support of the instant search warrant (included within People's response to demand for discovery) makes clear that ample cause existed to believe that evidence of a crime could be found in defendant's home. The affidavit consists of a sworn statement by Detective Pitts outlining his cause to believe the warrant will result in evidence of a crime from within defendant's home. Det. Pitts swears to conversations which he personally had with two of defendant's children both of whom told Det. Pitts that they had been assaulted by defendant. Det. Pitts further swears that he accompanied CPS worker Michael Delgado to defendant's home where Det. Pitts and Mr. Delgado discovered that there were cameras in the home which may have recorded the assaults alleged by the children. Det. Pitts also swears that one of defendant's children told the detective that there were guns in the home. [*3]

It is readily apparent from a reading of the affidavit in support of the warrant, as well as the "Initial Assessment and Safety Issues" document, attached to defendant's motion as exhibit A, that the reason for Mr. Delgado's visit to the Garing home on the day in question was to investigate an allegation of child abuse brought against Mr. Garing, and not, as claimed by the defense, a ruse to interrogate or search the home of the defendant. The Court finds that Mr. Delgado's presence in the Garing home was not only justified, but required by Social Services

Law § 424(6) upon receipt of an allegation of child abuse. Once legally in defendant's home, any information discovered while inside the home which justifies the issuance of a search warrant is proper. Once CPS and the police learned that there were cameras in the Garing home which may have captured images relating to the safety of the Garing children, the authorities were right to seek a warrant to obtain the computers. Clearly, probable cause existed to issue a search warrant on this basis.

As to Mr. Delgado's statement regarding his seeing a wire from a video camera to the computer, the Court finds that this is a collateral matter which may properly be addressed by cross examination of Mr. Delgado at trial. The Court is mindful that a hearing may be required where perjury or falsity by the law enforcement affiant (in this case Detective Pitts) is alleged to be the basis for supporting the probable cause for the issuance of a search warrant. However, there is no such requirement for a hearing where the alleged falsity is by an informant, and not the law enforcement affiant. "A defendant is entitled to a hearing in which he may challenge the truthfulness of the allegations in the affidavit supporting a search warrant only where he attacks the veracity of the police officer affiant, and not where ... the credibility of the source of information is challenged" People v. Anderson, 190 AD2d 741, 593 NYS2d 330 (2nd Dept. 1993) at 742 citing People v Slaughter, 37 NY2d 596 (1975) at 600 and People v Solimine, 18 NY2d 477 (1966) at 479.

The Court has already ruled that sufficient cause existed for the issuance of the search warrant based upon the affidavit by Det. Pitts. A reading of the affidavit in its entirety leads this Court to conclude that the warrant was issued based upon the truthful representations by the law enforcement affiant, Det. Pitts, rather than the single allegedly false representation by Mr. Delgado. Accordingly, defendant's challenge to the search warrant based on an allegedly false representation by Mr. Delgado is denied without a hearing.

Defendant's application for severance of various counts of the indictment is denied. As discussed above, the seizure of defendant's computer was precipitated by the child protective investigation relating to defendant's alleged assault against his sons. The child pornography counts relate to images discovered on the computer lawfully seized from defendant's home. The charges of Sexual Abuse in the First Degree (two counts) and Attempted Sodomy in the First Degree involve the same child witnesses as the Assault charges. Further, evidence relating to the assault, sexual abuse, and pornography counts may well be admissible with respect to the charges of Endangering the Welfare of a Child. The Court agrees with the People that the evidence relating to the various charges is inextricably interwoven. Therefore, to hold a single trial on all counts of the instant indictment is both logical and a prudent exercise of judicial economy.

The Court declines to direct a more extensive response to his request for a bill of particulars. The People have, on February 20, 2003, responded to defendant's request for a bill of [*4]particulars with respect to each count of the indictment. In their February 20, 2003 response the District Attorney has already disclosed such information as is required by law to be disclosed. The information now requested by the defense is not required to be disclosed.

The defendant, upon production of an order, shall be permitted to retain a medical doctor as well as an expert in the field of computers at county expense pursuant to County Law § 722-b, Art. 18-b. The defendant will be allowed up to $1,000.00 for retention of the medical doctor and $1,000.00 for retention of the computer expert, subject to further application if necessary in the

future. The Court finds that the defendant has not made a showing that an expert in criminalistics regarding shoe prints is necessary.

This constitutes the decision and order of the Court.

J.C.C.

Decision Date: April 21, 2003