SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FOURTH JUDICIAL DEPARTMENT DECISIONS FILED OCTOBER 5, 2012 HON. HENRY J. SCUDDER, PRESIDING JUSTICE HON. NANCY E. SMITH HON. JOHN V. CENTRA HON. EUGENE M. FAHEY HON. ERIN M. PERADOTTO HON. EDWARD D. CARNI HON. STEPHEN K. LINDLEY HON. ROSE H. SCONIERS HON. SALVATORE R. MARTOCHE, ASSOCIATE JUSTICES FRANCES E. CAFARELL, CLERK SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 858 KA 10-01416 PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER MATTHEW WHEELER, DEFENDANT-APPELLANT. KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT. MATTHEW WHEELER, DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF COUNSEL), FOR RESPONDENT. 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 a sentence 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 first degree (Penal Law § 130.65 [3]), for having subjected a five-year-old girl to sexual contact by rubbing her buttocks for his own sexual gratification. Defendant was sentenced to a split sentence of incarceration and probation and was subsequently adjudicated a level three sex offender (see People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). Pursuant to condition No. 5 of his probation, defendant is required to obtain “suitable employment” or “pursue a course of study or vocational training.” Pursuant to condition No. 16 of his probation, which was imposed based on 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 or sexually stimulating.” During defendant’s period of probation, defendant’s probation officer and other members of the probation department conducted a search of defendant’s home. During the search, the probation officers discovered a laptop computer with 113 images of prepubescent girls in various explicit poses and stages of undress stored therein (images). Defendant’s probation officer filed an information for delinquency alleging that defendant violated condition No. 16 of his probation based on defendant’s possession of the images on his computer. The officer also alleged that defendant violated condition No. 5 of his -2- 858 KA 10-01416 probation based on his failure to be suitably employed or enrolled in school. Following a hearing, Supreme Court determined that defendant violated his probation, 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 main brief unless otherwise noted. “A violation of probation proceeding is summary in nature and a sentence of probation may be revoked if the defendant has been afforded an opportunity to be heard” (People v Perna, 74 AD3d 1807, 1807, lv denied 17 NY3d 716 [internal quotation marks omitted]; see People v DeMarco, 60 AD3d 1107, 1108). The People are required to establish by a preponderance of the evidence that defendant violated the terms and conditions of his probation (see CPL 410.70 [3]; People v Pringle, 72 AD3d 1629, 1629, lv denied 15 NY3d 855; People v Bergman, 56 AD3d 1225, 1225, lv denied 12 NY3d 756), and “the decision to revoke his probation will not be disturbed, [absent a] ‘clear abuse of discretion’ ” (People v Barber, 280 AD2d 691, 694, lv denied 96 NY2d 825; see Bergman, 56 AD3d at 1225). Defendant contends in his main and pro se supplemental briefs that the People failed to establish by a preponderance of the evidence that he violated condition No. 5 (see People v Garner, 56 AD3d 951, 952, lv denied 12 NY3d 783; People v Green, 255 AD2d 923, 923, lv denied 93 NY2d 853; see generally Bergman, 56 AD3d at 1225). That contention lacks merit. We defer to the court’s determination crediting the testimony of defendant’s probation officer, who testified that defendant failed to obtain “suitable employment” 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 in refusing to suppress the evidence recovered by the probation officers when they searched his home and computer. We reject that contention. While on probation, a defendant still retains the constitutional right to be free from “unreasonable searches and seizures” (People v Huntley, 43 NY2d 175, 181; see People v Hale, 93 NY2d 454, 459). Nevertheless, pursuant to a condition of his probation, defendant consented to warrantless searches by probation officers of, inter alia, his home in order for those officers to monitor his compliance with the conditions of his probation, and defendant further consented to “seizures of any 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, possessing or having under his control “pornographic” or “sexually stimulating” items, was “individually tailored” to defendant’s underlying sex offense and “reasonably related” to his rehabilitation and supervision (id. at 462; see People v Wahl, 302 AD2d 976, 976, lv denied 99 NY2d 659; People v Schunk, 269 AD2d 857, 857). “As such, [those conditions] provided an appropriate basis for the search and seizure of [defendant’s home and computer]” (Hale, 93 NY2d at 462). Further, the record establishes that defendant violated the terms of his probation on two prior occasions by failing to participate in a sex offender treatment program, and we -3- 858 KA 10-01416 thus conclude that the decision of defendant’s probation officer to search his home and computer was “ ‘rationally and reasonably related to the performance of the [probation] officer’s duty’ ” to monitor the terms of defendant’s probation (People v Johnson, 49 AD3d 1244, 1245, lv denied 10 NY3d 865, 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 is unconstitutionally vague and unenforceable. Preliminarily, we note that defendant does not challenge the term “pornographic” as used in that condition as being unconstitutionally vague and unenforceable. Consequently, even assuming, arguendo, that the term “sexually stimulating” is unconstitutionally vague, we conclude that reversal is not required because, as discussed infra, the court properly determined that the images were pornographic in nature and thus condition No. 16 is enforceable (see People v Tucker, 302 AD2d 752, 753). In any event, we conclude that the term “sexually stimulating” as used in condition No. 16 “is sufficiently explicit to inform a reasonable person of the conduct to be avoided” and therefore is not unconstitutionally vague (id.; see People v York, 2 AD3d 1158, 1160; People v Howland, 108 AD2d 1019, 1020; see generally People v Stuart, 100 NY2d 412, 420-421). Given the nature of defendant’s underlying sex offense and his status as a level three sex offender, we conclude that defendant could not have reasonably believed that his possession of the images, which depict prepubescent females in various states of undress and sexually suggestive poses, was permitted by condition No. 16 (see People v Bologna, 67 AD2d 1004, 1004; see also Farrell v Burke, 449 F3d 470, 491; see generally Stuart, 100 NY2d at 420-421). 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 violated condition 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 event that sufficient evidence of the violation of condition No. 5 alone provided a proper basis for the court to conclude that defendant violated his probation. Here, because the images depicted children, we must consider the definition of “child pornography” in resolving the issue whether the images are “pornographic.” In determining whether the images were “pornographic,” the court considered the federal definition of the term “child pornography,” and we agree that federal law provides guidance under these circumstances (see generally People v Horner, 300 AD2d 841, 842-843). Federal law provides that “the lascivious exhibition of the genitals or pubic area of a minor constitutes child pornography” (United States v Hill, 459 F3d 966, 969 n 2, cert denied 549 US 1299; see 18 USC § 2256 [2] [B] [iii]; [8]). The question whether a visual depiction of a minor constitutes a “lascivious exhibition 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 generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in -4- 858 KA 10-01416 inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and] 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer” (United States v Dost, 636 F Supp 828, 832, affd 812 F2d 1239, 813 F2d 1231, cert denied 484 US 856; see Horner, 300 AD2d at 842-843). Notably, “all of the aforementioned factors need not be present” in order to determine that materials constitute child pornography where, as here, there is no statutory provision to the contrary, and nothing in Dost requires that “the genitalia be uncovered” (Horner, 300 AD2d at 843). “Hence, one must consider the combined effect of the setting, attire, pose and emphasis on the genitals and whether it is designed to elicit a sexual response in the viewer, ‘albeit perhaps not the “average viewer”, but perhaps 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” inasmuch as the focal point of many of the images is on the child’s genitalia or pubic area. Further, although no child’s genitalia is actually uncovered in the images, many of the children are in unnatural poses 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 in sexual activity; and, most importantly, the “combined effect” of the foregoing factors appears to have been “designed to elicit a sexual response” in defendant, who was convicted of sexually abusing a five-year-old girl (id.). We further agree with the court in any event that the images were “sexually stimulating” based on the common meaning of that term (see Webster’s Third New International Dictionary 2082, 2244 [2002] [defining “sexually” as “in a sexual manner” or “with regard to or by means of sex” and defining “stimulate” as “to excite to activity 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 and considering 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 People were not required pursuant to condition No. 16 to prove 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 hearing establishes that the probation officers discovered the computer during their search of defendant’s home and that defendant admitted to the probation officers at the time of the search that the computer belonged to him. We therefore conclude that the court properly determined that the People 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, 72 AD3d at 1629; Tucker, 302 AD2d at 753; see generally Bergman, 56 AD3d at 1225). We further conclude that the sentence is not unduly harsh or severe. -5- 858 KA 10-01416 Finally, we have reviewed the remaining contentions in defendant’s pro se supplemental brief and conclude that none requires modification or reversal of the judgment. Entered: October 5, 2012 Frances E. Cafarell Clerk of the Court SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 859 KA 09-01480 PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER MYCHAL A. CARR, DEFENDANT-APPELLANT. KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered May 20, 2009. The judgment convicted defendant, upon a jury verdict, of attempted murder in the first degree, reckless endangerment in the first degree and criminal possession of a weapon in the second degree. 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 attempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i], 20.00), reckless endangerment in the first degree (§§ 120.25, 20.00) and criminal possession of a weapon in the second degree (§ 265.03 [3]). Defendant contends that the People failed to establish his identity as the shooter and thus that the evidence is legally insufficient to support the conviction of attempted murder and reckless endangerment. We reject that contention. The evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), is legally sufficient to establish defendant’s identity as the shooter (see People v Adams, 96 AD3d 1588, 1589). We further conclude that the verdict on those counts is not against the weight of the evidence on the issue of identification (see id.; see generally People v Bleakley, 69 NY2d 490, 495). The two police officers and the two civilian witnesses who observed the drive-by shooting on Cambridge Avenue testified unequivocally that the shooter was situated in the front passenger seat of the vehicle. During the shooting, the shooter’s hat blew off of his head and landed in the middle of the street, and subsequent DNA testing matched defendant’s DNA to that found on the hat. Defendant was also the source of the major DNA profile extracted from the .380 semiautomatic handgun recovered in the parking lot where defendant was apprehended, and four fired .380 cartridge cases recovered by the police in the area of Cambridge Avenue exhibited -2- 859 KA 09-01480 “class characteristics” that were consistent with being fired from that gun. In addition, a jailhouse informant testified that defendant admitted to the informant that he was the shooter. Although the informant has an extensive criminal history and received a favorable plea deal in exchange for his testimony, we reject defendant’s contention that his testimony was incredible as a matter of law (see People v Morgan, 77 AD3d 1419, 1420, lv denied 15 NY3d 922; People v Monk, 57 AD3d 1497, 1499, lv denied 12 NY3d 785; People v Pace, 305 AD2d 984, 985, lv denied 100 NY2d 585). The jury was informed of the nature of the informant’s plea deal as well as the details of his prior criminal conduct, including his rape of a six-year-old girl, and we see no basis to disturb its credibility determination (see Morgan, 77 AD3d at 1420; Pace, 305 AD2d at 985). Defendant further contends that the evidence is legally insufficient to support his conviction of criminal possession of a weapon in the second degree because the .380 semiautomatic handgun was not loaded when defendant was apprehended by the police and the gun was recovered. We reject that contention. “[B]ased on the evidence adduced at the trial, a rational jury could have inferred that, at some point before the defendant’s apprehension by the police and the concomitant recovery of the weapon, he possessed a firearm loaded with operable ammunition with the intent to use it unlawfully against another” (People v Bailey, 19 AD3d 431, 432, lv denied 5 NY3d 785). The People introduced, inter alia, testimony that the handgun at issue holds up to six bullets, five in the magazine and one in the chamber. As noted above, the police recovered four .380 caliber casings on Cambridge Avenue, and a police witness testified that defendant fired two shots at his police car while he was pursuing defendant after the drive-by shooting. We also reject the contention of defendant that County Court erred in refusing to suppress DNA and fingerprint evidence as the fruit of an unlawful arrest. The police observed defendant and two other males in a parking lot around the corner from the abandoned vehicle involved in the drive-by shooting within a minute after the vehicle was discovered. The three individuals matched the general description of the perpetrators. As the police approached the three men in a marked patrol vehicle, two of the individuals fled and defendant attempted to evade the police by forcing his way into an apartment building. We conclude that defendant’s attempt to evade the police and the flight of the other two individuals, coupled with defendant’s temporal and geographic proximity to the abandoned vehicle, provided the police with the requisite reasonable suspicion that defendant had committed a crime, i.e., that he was one of the occupants of the vehicle involved in the drive-by shooting and high- speed chase (see People v Knight, 94 AD3d 1527, 1529; People v Butler, 81 AD3d 484, 485, lv denied 16 NY3d 893; People v Jackson, 78 AD3d 1685, 1685-1686, lv denied 16 NY3d 743). Further, defendant provided inconsistent explanations to the police regarding the reason for his presence in the parking lot, and the female resident who blocked defendant’s entrance to the apartment building told the police that she did not know defendant. Once the police located the handgun in the parking lot where defendant and the two other individuals had been -3- 859 KA 09-01480 found, the police had probable cause to arrest defendant. We thus conclude that the court properly denied defendant’s suppression motion (see Knight, 94 AD3d at 1528; see generally Butler, 81 AD3d at 485). Contrary to the further contention of defendant, we conclude that the court properly granted the People’s motion to amend the first count of the indictment to specify Erie County as the situs of the crime (see CPL 200.70; People v Cruz, 61 AD3d 1111, 1112; People v DeSanto, 217 AD2d 636, 636, lv denied 87 NY2d 972). The indictment was amended “during [the] trial” as required by CPL 200.70 (see generally CPL 260.30; People v Griffin, 9 AD3d 841, 843), and the amendment did not change the prosecution’s theory or prejudice defendant (see Cruz, 61 AD3d at 1112). The caption of the indictment specifies Erie County, the first count of the indictment states that “THE GRAND JURY OF THE COUNTY OF ERIE” accuses defendant of attempted murder in the first degree and the remaining counts of the indictment all include the language “in this County.” Further, the bill of particulars specifies with respect to count one of the indictment that the alleged crime occurred “in the vicinity of Goodyear Avenue in the City of Buffalo, County of Erie.” We thus conclude that the court “providently exercised its discretion in permitting the prosecution to amend [count one of] the indictment to allege the county where the alleged offense occurred” (Matter of Blumen v McGann, 18 AD3d 870, 870-871; see People v Eaddy, 181 AD2d 946, 947-948, lv denied 79 NY2d 1048). Defendant contends that the grand jury proceedings were defective because the People failed to present allegedly exculpatory evidence. We reject that contention. It is well established that “[t]he People have broad discretion in presenting a case to the grand jury and need not ‘present all of their evidence tending to exculpate the accused’ ” (People v Radesi, 11 AD3d 1007, 1007, lv denied 3 NY3d 760, quoting People v Mitchell, 82 NY2d 509, 515; see People v Morris, 204 AD2d 973, 974, lv denied 83 NY2d 1005). Here, the testimony of one of the officers at the felony hearing that another codefendant was situated in the front passenger seat of the vehicle involved in the shooting was not “entirely exculpatory” (People v Gibson, 260 AD2d 399, 399, lv denied 93 NY2d 924), and the failure to present such testimony at the grand jury “did not result in a ‘needless or unfounded prosecution’ ” (People v Smith, 289 AD2d 1056, 1057, lv denied 98 NY2d 641, quoting People v Valles, 62 NY2d 36, 38). Thus, the People’s failure to present such evidence to the grand jury does not require dismissal of the indictment (see Smith, 289 AD2d at 1057; Gibson, 260 AD2d at 399; People v Dillard, 214 AD2d 1028, 1028). Defendant failed to preserve for our review his contention that he is entitled to a new trial based upon the People’s delay in turning over prior statements of the jailhouse informant (see People v Rodriguez, 293 AD2d 336, 337, lv denied 98 NY2d 713; People v Perdomo, 280 AD2d 617, 617; People v Bradl, 231 AD2d 895, 895), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). -4- 859 KA 09-01480 Finally, we conclude that the sentence is not unduly harsh or severe. Entered: October 5, 2012 Frances E. Cafarell Clerk of the Court