         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1198
KA 11-01004
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                 OPINION AND ORDER

STEPHEN DEPROSPERO, DEFENDANT-APPELLANT.


FRANK POLICELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered February 14, 2011. The judgment convicted
defendant, upon his plea of guilty, of predatory sexual assault
against a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Opinion by PERADOTTO, J.: The novel issue raised on this appeal
from a judgment convicting defendant upon a plea of guilty of
predatory sexual assault against a child (Penal Law § 130.96) is
whether County Court erred in refusing to suppress evidence uncovered
as a result of a January 2010 search of property that had been seized
from defendant pursuant to a May 2009 warrant. For the reasons that
follow, we conclude that the court properly refused to suppress that
evidence.

                  Factual and Procedural Background

     In 2008 and early 2009, an undercover State Police investigator
worked to identify individuals sharing child pornography on the
internet over peer-to-peer file sharing networks. A certain IP
address was a download candidate for suspected child pornography files
over 40 times between February 18, 2009 and March 3, 2009, and the
investigator confirmed that three specific images associated with that
address contained child pornography. The IP address was traced to
defendant’s home. Based on that investigation, the investigator
applied for and obtained a warrant authorizing the search of
defendant’s home and the seizure of his computers therefrom, including
“peripheral equipment such as keyboards, printers, modems, scanners,
or digital cameras and their internal or external storage media.”
When the warrant was executed on May 5, 2009, a “limited preview” of
defendant’s computer revealed an image of an unknown female child
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                                                         KA 11-01004

performing oral sex on a male adult. Defendant was arrested, and the
police seized various items of electronic equipment belonging to him,
including a computer and two digital cameras.

     Shortly after his arrest, defendant’s employer contacted the
District Attorney’s Office and indicated that defendant had worked
with children in the course of his employment, that he had displayed a
particular interest in one child, and that other children had reported
that defendant may have photographed them. Unbeknownst to the
Assistant District Attorney (ADA) assigned to defendant’s case, the
property seized from defendant in May 2009 was not promptly subjected
to a full forensic examination by the State Police Crime Laboratory.
Thus, mistakenly believing that the evidence against defendant was
limited to the single image of child pornography discovered during
execution of the search warrant, and apparently concerned about speedy
trial issues, the ADA offered defendant a sentence promise of six
months in jail and 10 years of probation in exchange for a plea of
guilty to possessing a sexual performance by a child (see Penal Law §
263.16). Defendant accepted the offer, pleaded guilty to a superior
court information on September 17, 2009, and was sentenced as promised
on November 2, 2009.

     After sentencing, defendant’s attorney contacted the ADA and
requested the return of defendant’s property seized pursuant to the
May 2009 warrant. Prior to releasing the property, however, the ADA
instructed the State Police to examine it to ensure that no contraband
was returned to defendant. In January 2010, a State Police
investigator found hundreds of pornographic images and videos of
children on defendant’s computer, as well as a “deleted video clip” on
one of defendant’s cameras. The investigator recovered 353 still-
frame images from the deleted video clip, depicting the penis of an
adult male in the mouth of an autistic male child who appeared to be
less than 12 years old and resided in a group home where defendant
worked (hereafter, victim). The external hard drive of defendant’s
computer contained other images, both pornographic and otherwise, of
defendant and the victim. A physical examination of defendant in
March 2010 confirmed that defendant had a birthmark on his penis
matching that of the adult male in the images recovered from the
deleted video clip. State and federal prosecutions ensued.

     On August 5, 2010, defendant was indicted on one count of
predatory sexual assault against a child (Penal Law § 130.96) and four
counts of criminal sexual act in the first degree (§ 130.50 [4]). The
acts underlying the predatory sexual assault count and the first
criminal sexual act count were alleged to have occurred “on or about
and between September 25, 2006 through and including December 25,
2007.” The acts underlying the remaining criminal sexual act counts
were alleged to have occurred between September 15, 2005 and December
25, 2007. By way of omnibus motion, defendant sought, inter alia,
dismissal of the indictment based upon CPL 40.40. Defendant also
sought to suppress the evidence seized from his computer and camera on
the grounds that the May 2009 search warrant was not supported by
probable cause, and that the police lacked jurisdiction to search his
computer and camera once the 2009 criminal proceeding terminated.
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                                                         KA 11-01004

     Following a suppression hearing, the court denied those parts of
defendant’s omnibus motion seeking dismissal of the indictment
pursuant to CPL 40.40 and suppression of the evidence recovered from
defendant’s camera and computer. With respect to that part of the
motion seeking suppression, the court first determined that the May
2009 search warrant was supported by probable cause. After noting
that this “may be a case of first impression concerning the delayed
analysis of property that has been lawfully seized,” the court
concluded that there was “nothing inherently wrong or improper about a
delayed analysis or inspection of property that [has been] lawfully
seized,” that defendant did not have a legitimate expectation of
privacy in the items searched by the State Police in January 2010, and
that the May 2009 warrant continued to provide probable cause for that
subsequent search. The court therefore determined “that the police
did not need a second search warrant to do a complete forensic
analysis of the seized property prior to returning said property to
the defendant.”

     Defendant thereafter pleaded guilty to predatory sexual assault
against a child, admitting that, at some point between September 25,
2006 and December 25, 2007, he engaged in oral sexual contact with a
child less than 13 years of age. Defendant was sentenced to an
indeterminate term of 18 years to life, and he now appeals.

                              Discussion

     Addressing first defendant’s contention pursuant to CPL 40.40, we
note that defendant forfeited such contention by his plea of guilty
(see People v Prescott, 66 NY2d 216, 218, cert denied 475 US 1150;
People v Farnsworth, 24 AD3d 1206, lv denied 6 NY3d 847). In any
event, we conclude that the court properly determined that there was
no statutory double jeopardy violation. “CPL 40.40 prohibits a
separate prosecution of joinable offenses that arise out of the same
transaction and involve different and distinct elements under
circumstances wherein no violation of the double jeopardy principle
can validly be maintained but the equities nevertheless seem to
preclude separate prosecutions” (People v Tabor, 87 AD3d 829, 831
[internal quotation marks omitted]). The statute applies only to
offenses that are joinable on the ground that they arise from a single
criminal transaction (see CPL 40.40, 200.20 [2] [a]; see generally
People v Dallas, 46 AD3d 489, 490, lv denied 10 NY3d 809, 933).

     Here, the 2009 and 2010 offenses arose from separate criminal
transactions. A criminal transaction is comprised of two or more acts
“either (a) so closely related and connected in point of time and
circumstance of commission as to constitute a single criminal
incident, or (b) so closely related in criminal purpose or objective
as to constitute elements or integral parts of a single criminal
venture” (CPL 40.10 [2]). In this case, the 2009 and 2010 offenses
have different elements, and were committed in different places, at
different times, and against different victims (see People v Rossi,
222 AD2d 717, 718, lv denied 88 NY2d 884; see also People v Haddock,
80 AD3d 885, 886, lv denied 16 NY3d 831; cf. CPL 40.10 [2] [a]). As
the court properly concluded, the mere fact that evidence of both
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                                                         KA 11-01004

offenses was collected pursuant to the same search warrant does not
link them to a single criminal transaction (see generally People v
Batista, 282 AD2d 825, 826, lv denied 96 NY2d 825, 829). Further,
defendant’s possession of a pornographic image of an unknown female
child is plainly not an integral part of the same “criminal venture”
as his act of engaging in oral sexual conduct with a male child with
whom he was acquainted (CPL 40.10 [2] [b]; see Matter of Martinucci v
Becker, 50 AD3d 1293, 1293-1294, lv denied 10 NY3d 709; People v
Harris, 267 AD2d 1008, 1009-1010; see generally People v Van Nostrand,
217 AD2d 800, 801, lv denied 87 NY2d 851). Thus, because the two
prosecutions of defendant were based on separate criminal
transactions, the instant prosecution is not barred by CPL 40.40 (see
People v Mono, 197 AD2d 909, lv denied 82 NY2d 900).

     We likewise reject defendant’s further contention that the May
2009 search warrant authorizing seizure of his computer and related
items was not based upon probable cause. Probable cause for the
issuance of a search warrant is established when a warrant application
provides a reviewing magistrate with information sufficient to support
a reasonable belief that evidence of a crime will be found at the
place to be searched (see People v Edwards, 69 NY2d 814, 815-816;
People v Bigelow, 66 NY2d 417, 423; People v Martinez, 298 AD2d 897,
898, lv denied 98 NY2d 769, cert denied 538 US 963, reh denied 539 US
911). Approval by a reviewing magistrate cloaks a search warrant with
“a presumption of validity” (People v Castillo, 80 NY2d 578, 585, cert
denied 507 US 1033; see People v Welch, 2 AD3d 1354, 1357, lv denied 2
NY3d 747). Here, the sworn warrant application of the State Police
investigator provided probable cause for the issuance of the search
warrant. The application included a thorough overview of the
affiant’s experience in investigating the distribution of child
pornography on the internet, and set forth the basis for his belief
that defendant possessed child pornography (see generally People v
Darling, 263 AD2d 61, 65, affd 95 NY2d 530; People v Tambe, 71 NY2d
492, 501). Specifically, the investigator noticed that a certain IP
address was a download candidate for suspected pornography files over
40 times in a period of approximately two weeks, compared three
specific files associated with that IP address to files recovered in
previous investigations to verify that they depicted child
pornography, and traced the IP address to defendant’s home. Those
facts thus provided the reviewing magistrate with information to
support a reasonable belief that defendant possessed child pornography
(see generally Edwards, 69 NY2d at 816). Defendant failed to preserve
for our review his further contention that the warrant was overbroad
(see generally People v King, 284 AD2d 941, lv denied 96 NY2d 920)
and, in any event, that contention is without merit.

     Turning to the novel issue on appeal, we conclude that the court
properly refused to suppress evidence uncovered in the January 2010
search of property seized pursuant to the May 2009 warrant. While it
is indeed the case that the examination at issue of defendant’s
property occurred after sentencing on another charge and followed
defendant’s request for the return of such property, we conclude that
the police conduct in this case did not violate defendant’s Fourth
Amendment rights for a number of reasons. First, defendant provides
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                                                         KA 11-01004

no support for his contention that the authority to search his
property pursuant to the May 2009 warrant terminated at the conclusion
of the 2009 prosecution, and we reject that contention. The search
warrant directed the police to seize, inter alia, defendant’s
computers, external drives, storage media, and cameras, and
“authorize[d] the police agency to retain said property for the
purpose of further analysis and examination.” There was no deadline
in the warrant for completion of the forensic examination and
analysis, “nor [does] the Fourth Amendment provide[] for a specific
time limit in which a computer may undergo a government forensic
examination after it has been seized pursuant to a search warrant”
(United States v Hernandez, 183 F Supp 2d 468, 480; see United States
v Syphers, 426 F3d 461, 469, cert denied 547 US 1158; United States v
Gorrell, 360 F Supp 2d 48, 55 n 5 [“The warrant did not limit the
amount of time in which the government was required to complete its
off-site forensic analysis of the seized items and the courts have not
imposed such a prophylactic constraint on law enforcement”]; United
States v Triumph Capital Group, Inc., 211 FRD 31, 66 [the Fourth
Amendment does not “impose any time limitation on the government’s
forensic examination of the evidence seized”]). Indeed, “[t]he Fourth
Amendment itself ‘contains no requirements about when the search or
seizure is to occur or the duration’ ” (Syphers, 426 F3d at 469,
quoting United States v Gerber, 994 F2d 1556, 1559-1560). Rather,
“[t]he Fourth Amendment only requires that the subsequent search of
the computer be made within a reasonable time” (United States v
Mutschelknaus, 564 F Supp 2d 1072, 1076, affd 592 F3d 826).

     Here, we conclude that the search of defendant’s property was
conducted within a reasonable period of time (see id. at 1076-1077;
see also United States v Brewer, 588 F3d 1165, 1173; United States v
Burgess, 576 F3d 1078, 1097, cert denied ___ US ___, 130 S Ct 1028).
We note that there is no evidence that the ADA or the police acted in
bad faith, or that defendant was prejudiced by the delay in searching
his property (see Brewer, 588 F3d at 1173; Burgess, 576 F3d at 1097;
United States v Cameron, 652 F Supp 2d 74, 81-82). At the suppression
hearing, the ADA testified that defendant’s arrest and the seizure of
his property was part of a large-scale operation targeting child
pornography, and that it was his understanding that the State Police
Crime Laboratory would be analyzing all property uncovered in the
investigation. It was not until defendant requested the return of his
property that the ADA spoke to the State Police and realized that not
all the property had been tested by that time. A senior investigator
at the State Police Crime Laboratory testified that evidence sent
there is analyzed on a “triage” basis, with priority given to certain
cases, such as those involving a live victim, cases going to trial, or
cases in which no arrest has been made. Here, because the limited
preview of defendant’s computer by the police during execution of the
search warrant yielded a single image of child pornography and
defendant pleaded guilty to possessing a sexual performance by a child
(Penal Law § 263.16), the property had not yet been examined by the
State Police Crime Laboratory when defendant requested its return in
November 2009. Under those circumstances, the delay in searching
defendant’s property was not unreasonable (see Mutschelknaus, 564 F
Supp 2d at 1076-1077; see also Brewer, 588 F3d at 1173 [several
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                                                         KA 11-01004

months’ delay in forensic analysis of computer media did not violate
the Fourth Amendment]; Burgess, 576 F3d at 1097 [suppression of
evidence not required based upon delay in searching computer and hard
drives where probable cause was unaffected by the delay, the
government acted in good faith, and the defendant did not identify any
prejudice from the delay with the exception that he was temporarily
denied access to his property]).

     Although defendant contends that he was entitled to the immediate
return of his property upon his demand for that property after
sentencing on his 2009 conviction, we agree with the People that the
police had an obligation to search defendant’s property for contraband
before returning it to him (see generally United States v Jeffers, 342
US 48, 54; United States v LaFatch, 565 F2d 81, 83, cert denied 435 US
971; Matter of Sea Lar Trading Co. v Michael, 94 AD2d 309, 315-316,
appeal dismissed 60 NY2d 860). Indeed, returning contraband, i.e.,
child pornography, to a defendant would constitute a crime (see Penal
Law § 263.00 [5]; §§ 263.10, 263.11, 263.15, 263.16).

     Finally, we reject defendant’s further contention that the police
were required to obtain a new search warrant before searching the
property seized pursuant to the May 2009 warrant. “Once a person or
his [or her] effects have been reduced to custodial control in the law
enforcement system his [or her] privacy has been intruded upon”
(People v Perel, 34 NY2d 462, 465). The subsequent search of the
property lawfully seized “is then but a lesser-related intrusion
incident to the [seizure] already effected” (People v Greenwald, 90
AD2d 668, 668; see Perel, 34 NY2d at 465; People v Payne, 233 AD2d
787, 787 [“Once a person has been placed in custody, his [or her]
privacy has been compromised and the subsequent examination and
testing of items seized at the time of arrest is permissible as a
lesser-related intrusion incident to the arrest already effected”]).
Once defendant’s property had been lawfully seized pursuant to the May
2009 warrant, he lacked a legitimate expectation of privacy in that
property, notwithstanding the passage of time (see People v Natal, 75
NY2d 379, 384, cert denied 498 US 862; People v Nordahl, 46 AD3d 579,
580, lv denied 10 NY3d 842, 843; People v King, 232 AD2d 111, 117-118,
lv denied 91 NY2d 875).

                               Conclusion

     Accordingly, we conclude that the judgment should be affirmed.




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
