Opinion
1017 KA 15-01061
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Phillip BECKTOFT, Defendant-appellant.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (JOHN A. HERBOWY OF COUNSEL), FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MATTHEW P. WORTH OF COUNSEL), FOR RESPONDENT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (JOHN A. HERBOWY OF COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MATTHEW P. WORTH OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of five counts of possessing a sexual performance by a child ( Penal Law § 263.16 ). Defendant does not dispute that he possessed a sexual performance of a child with respect to each count. Rather, he contends that the evidence is legally insufficient to establish that he knowingly did so. Defendant failed to preserve that contention for our review because he presented evidence after County Court denied his motion for a trial order of dismissal at the close of the People's case, and he failed to renew his motion at the close of the proof (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ; People v. Norman , 183 A.D.3d 1240, 1242, 123 N.Y.S.3d 360 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 855, 151 N.E.3d 537 [2020] ). Nevertheless, we " ‘necessarily review the evidence adduced as to each of the elements of the crime[ ] in the context of our review of defendant's challenge regarding the weight of the evidence’ " ( People v. Cartagena , 149 A.D.3d 1518, 1518, 54 N.Y.S.3d 230 [4th Dept.. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017], reconsideration denied 30 N.Y.3d 1018, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017] ).
"To be found guilty of possessing a sexual performance by a child, the evidence must establish, as relevant here, that the defendant, ‘knowing the character and content thereof, ... knowingly has in his [or her] possession or control ... any performance which includes sexual conduct by a child less than [16] years of age’ " ( People v. Henry , 166 A.D.3d 1289, 1290, 88 N.Y.S.3d 672 [3d Dept. 2018], quoting Penal Law § 263.16 ). "In the case of digital images and videos found on an electronic device, knowing possession may be inferred from evidence establishing that the defendant exercised dominion or control over the material on the device" ( id. ; see People v. Kent , 19 N.Y.3d 290, 301, 947 N.Y.S.2d 798, 970 N.E.2d 833 [2012] ). To establish dominion or control, the People must prove an " ‘affirmative act,’ such as printing, saving or downloading" ( Henry , 166 A.D.3d at 1290, 88 N.Y.S.3d 672, quoting Kent , 19 N.Y.3d at 303, 947 N.Y.S.2d 798, 970 N.E.2d 833 ). The People may establish the requisite mens rea through circumstantial evidence, including evidence of the defendant's actions and the surrounding circumstances (see People v. Mitchell , 94 A.D.3d 1252, 1254, 942 N.Y.S.2d 657 [3d Dept. 2012], lv denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ; see generally People v. Feingold , 7 N.Y.3d 288, 296, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006] ).
Here, defendant testified that he used his computer to download pornography, and that he may have accidentally downloaded child pornography. Defendant further testified that he performed an Internet search using an acronym that a police investigator testified is used to search for child pornography, though defendant denied knowing what that acronym meant. In addition, a police forensics supervisor testified that he determined that defendant also searched for the terms "10 yo," "11 yo," and "kiddy porn XXX." Furthermore, several of the child pornography files that defendant downloaded had explicit titles, and defendant testified that, after downloading the files from the Internet, he affirmatively transferred them to an external hard drive. Viewing the evidence in light of the elements of the crime in this nonjury trial (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 the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).