People v Etheridge
Annotate this CaseDecided on August 11, 2006
County Court, Orange County
The People of the State of New York
against
Bruce J. Etheridge, Jr., Defendant.
2005-318
HON. FRANCIS D. PHILLIPS, II, ESQ.
District Attorney of Orange County
County Government Center
Goshen, New York l0924
MICHAEL H. DONNELLY, ESQ.
28 Bruen Place
P.O. Box 610
Goshen, New York 10924
Karen Riley, J.
Defendant was convicted of the crime of Rape in the Third Degree (Sec. 130.25(2) Penal Law) after a plea of guilty before the Hon. Stewart Rosenwasser on April 18, 2005. The facts underlying the Superior Court Information are as follows: On March 13, 2004, defendant, age 33, engaged in sexual intercourse with Amanda E., a 16 year old female, at a motel in Warwick, New York. The pre-sentence report dated June 2, 2005, indicates that defendant was employed as a security aide at a middle school in Orange County which the victim had previously attended. Once the victim moved on to high school, the defendant maintained contact with her. When the victim was a sophomore in high school, defendant engaged in a sexual relationship with her, culminating in the instant offense.
On June 6, 2005, defendant was sentenced to six months incarceration and ten years Sex Offender probation. A violation of probation petition was filed on February 24, 2006. A hearing was held on July 13, 2006.
The violation of probation petition alleges that the defendant violated special condition S-14 "in that on 2/23/06 during a home visit, Bruce J. Etheridge Jr. had in his possession material that depicted or appeared to depict nudity, or actual or simulated sexual conduct on his computer." An addendum to the petition which was filed on May 17, 2006 was withdrawn.
Special condition S-14 states:
You shall not enter, frequent or patronize places which primarily engage in the business of selling books, magazines, other materials or persons that depict or appear to depict nudity, or actual or simulated sexual conduct of any kind, eg. Adult bookstores, strip clubs, adult entertainment show. You shall not purchase, possess or view books, magazines, videotapes, films, cable networks, web sites or other materials which depict or appear to depict nudity, or actual or simulated sexual conduct of any kind.
FACTS
On July 7, 2005, Probation Officer Rose Quackenbush met the defendant at the Orange County Jail and reviewed with him the terms and conditions of his probation. On February 23, 2006, as part of a home visit Orange County Probation Officers Rose Quackenbush and Zudorah Anderson entered defendant's home located at 19 Galloway Heights in Warwick, New York, where he resided with his mother and father. During this visit, P.O.s Quackenbush and Anderson reviewed the contents of a computer located in the residence. The probation officers reviewed [*2]the history recorded in the computer's web browser and the contents of the computers recycle bin and found photographs depicting nudity and sexual conduct which had been downloaded onto the computer from internet sites.
When Probation Officer Quackenbush observed the files she asked "what's this?," to which the defendant replied the material was old material that he was trying to delete. During the home visit, defendant admitted to P.O. Quackenbush that he used two computers which were located in the residence. Probation Officer Anderson reviewed the history contained on the internet browser and went through the history of the prior week and opened up a video entitled "Somebody's Agony" depicting a woman masturbating. According to the properties of this file, the web site associated with this video was visited on February 21, 2006. Defendant remained present while P.O. Quackenbush printed out the material that she had found in the recycle bin. The material was a printout of web pages associated with a web site called "Amateur Teen Dreams". That printout was received into evidence at the hearing as People's exhibit number 2. Next, P.O. Quackenbush testified that she observed P.O. Anderson go into the "history" site of the upstairs computer, where she opened up two video clips which depicted a female lying in bed masturbating.
Subsequently, a search warrant was obtained and executed on February 24, 2006. Investigator Reinle of the Orange County District Attorney's Office seized 2 computers located in the residence pursuant to an order of the Orange County Court and ultimately transported them to the Bergen County Prosecutor's Office for forensic examination.
During the time of execution of the search warrant, Probation Officer Quackenbush spoke to defendant's father, who lived at the residence. Defendant's father denied having downloaded or viewed any of the images on the computer that depicted nudity and sexual acts.
Orange County District Attorney's Office Investigator Reinle detailed his extensive training and experience in the area of computer forensics, and was recognized by the Court as an expert in the field of computer forensics. Investigator Riley testified that he examined the contents of the defendant's computer hard drives in the course of his investigation. He also produced a copy of the hard drives from defendant's computers, and a print out of the images found on the hard drives. The Court received this report into evidence as People's exhibit number 4. A duplicate copy of the hard drive, on disk, was received into evidence as People's exhibit number 5. The printed report viewed by the Court contained numerous still images and several video clips that were downloaded onto defendant's computers on ten separate occasions after January 1, 2006.
The printed report, viewed by the court, contained approximately 68 photographs depicting nudity and sexual conduct. The 20 video clips viewed by the court also depicted nudity and sexual conduct. According to the testimony of Investigator Reinle, the photographs and video clips contained on the computer hard drives were downloaded after January 1, 2006. Through his forensic examination, Investigator Reinle determined that an attempt had been made to delete the clips and photographs from the computer hard drive, however, Investigator Reinle was able to recover these images, together with information saved with the file, such as the date and time that the images were downloaded. [*3]
On cross examination, Investigator Reinle conceded that it is possible for web files to be downloaded on to a computer without the computer user's knowledge.
CONCLUSIONS OF LAW
The images stored in defendant's computers are materials which clearly fall within the prohibition of Special Conditions S-14. These items include images of nudity and graphic images and video clips of adult and teen-aged females engaged in sexual conduct. The images located on defendant's computers depict sexual intercourse, masturbation and oral sexual conduct.
Further, defendant's knowing possession of these images was established by the People by a preponderance of the credible evidence. Defendant's father denied downloading or possessing the material, and there was no indication that the explicit materials were downloaded or possessed by defendant's mother, a 58 year old teacher's aide. In view of the number of files which were downloaded on ten separate occasions between January 1, 2006 and February 23, 2006, and the similarity of the content of these files, it is extremely unlikely that they were inadvertently embedded on the defendant's hard drives. The Defendant also stated to P.O. Quackenbush that the items were "old stuff" that he intended to delete. Defendant's statement indicates that he was aware of the content of the files and knew that the possession of them was in contravention to the terms of his probation.
There can be no question whatsoever that these images violate the plain meaning of the special condition and violate the purpose of the imposition of the special condition, namely that the defendant refrain from behavior which is contrary to his rehabilitation as a Sex Offender. By possessing the images contained on the computer, defendant is persisting in behaviors that have been determined to increase his risk of re-offending in the community. Of particular concern here is the fact that the titles of several of the images indicate that they depict or purport to depict teenage subjects, which is the same age group of the female child defendant had been convicted of offending against.
Under the circumstances, the court finds that the defendant intentionally downloaded and possessed these items on his computer. The court also finds that the content of the files and video clips contained images of nudity and various forms of sexual conduct. Accordingly, the court finds that the People have met their burden of establishing that the defendant has violated special condition S-14 by a preponderance of the credible evidence [ CPL §410.70; People v. Adams, 266 AD2d 225 (2nd Dept 1999); People v. Powell, 209 AD2d 645 (2nd Dept 1994); People v. Crandall 51 AD2d 841 (3rd Dept 1976)].
The foregoing constitutes the decision and order of the Court.
Dated:Goshen, New York
August 11, 2006
E N T E R :
________________________________
HON. KAREN A. RILEY
County Court Judge
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