Opinion
47 KA 17–00929
02-08-2019
The PEOPLE of the State of New York, Respondent, v. Douglas J. MADIGAN, Defendant–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt 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 11 counts of possessing a sexual performance by a child ( Penal Law § 263.16 ) and 11 counts of promoting a sexual performance by a child (§ 263.15). The conviction arises from an investigation in which the police discovered that the IP address associated with defendant's Internet provider subscription had been used to share child pornography via peer-to-peer software and, upon executing a search warrant, found such content on an external hard drive located in a camper on defendant's property. We affirm.
Defendant contends that County Court erred in refusing to suppress evidence seized from his property because the police exceeded the scope of the search warrant by searching the camper. We reject that contention. The Federal and State Constitutions provide that warrants shall not be issued except "upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized" ( U.S. Const 4th Amend; N.Y. Const, art I, § 12 ; see People v. Cook, 108 A.D.3d 1107, 1108, 968 N.Y.S.2d 305 [4th Dept. 2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ). Although "[p]articularity is required in order that the executing officer can reasonably ascertain and identify ... the persons or places authorized to be searched and the things authorized to be seized[,] ... hypertechnical accuracy and completeness of description" in the warrant is not required ( People v. Nieves, 36 N.Y.2d 396, 401, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975] ; see People v. Williams, 140 A.D.3d 1526, 1527, 34 N.Y.S.3d 528 [3d Dept. 2016], lv denied 28 N.Y.3d 1076, 47 N.Y.S.3d 235, 69 N.E.3d 1031 [2016] ; People v. Dewitt, 107 A.D.3d 1452, 1453, 967 N.Y.S.2d 547 [4th Dept. 2013] ). Contrary to defendant's contention, we conclude that the police did not exceed the scope of the search warrant inasmuch as the camper was included in the description of the places authorized to be searched (see People v. Schaefer, 163 A.D.3d 1179, 1181, 82 N.Y.S.3d 197 [3d Dept. 2018], lv denied 32 N.Y.3d 1007, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018] ; Cook, 108 A.D.3d at 1108–1109, 968 N.Y.S.2d 305 ; cf. People v. Caruso, 174 A.D.2d 1051, 1051, 572 N.Y.S.2d 216 [4th Dept. 1991] ).
We also reject defendant's further contention that reversal is required because he did not waive on the record his constitutional right to testify. "Although there is a fundamental precept that a criminal defendant has the right to testify in his or her own defense guaranteed by the Federal and State Constitutions ..., it is well settled that, ordinarily, the trial court does not have a general obligation to sua sponte ascertain if the defendant's failure to testify was a voluntary and intelligent waiver of his [or her] right" ( People v. Pilato, 145 A.D.3d 1593, 1595, 46 N.Y.S.3d 313 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] [internal quotation marks omitted]; see People v. Fratta, 83 N.Y.2d 771, 772, 610 N.Y.S.2d 947, 632 N.E.2d 1270 [1994] ; People v. Mauricio, 8 A.D.3d 1089, 1090, 778 N.Y.S.2d 400 [4th Dept. 2004], lv denied 3 N.Y.3d 678, 784 N.Y.S.2d 16, 817 N.E.2d 834 [2004] ). Contrary to defendant's contention, we conclude that this case "does not present any of the exceptional, narrowly defined circumstances in which judicial interjection through a direct colloquy with the defendant [would] be required to ensure that the defendant's right to testify is protected" ( Pilato, 145 A.D.3d at 1595, 46 N.Y.S.3d 313 [internal quotation marks 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 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that, although a different verdict would not have been unreasonable, the jury did not fail to give the evidence the weight it should be accorded (see People v. Henry, 166 A.D.3d 1289, 1290–1292, 88 N.Y.S.3d 672 [3d Dept. 2018] ; People v. Yedinak, 157 A.D.3d 1052, 1055–1056, 69 N.Y.S.3d 728 [3d Dept. 2018] ; People v. Tucker, 95 A.D.3d 1437, 1438–1440, 944 N.Y.S.2d 383 [3d Dept. 2012], lv denied 19 N.Y.3d 1105, 955 N.Y.S.2d 561, 979 N.E.2d 822 [2012] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).