NORWICH – Public Defender Alan Gordon raised issue last week with a search warrant that allowed state police to seize his client’s computer, including alleged images of child pornography. He says officers made a critical error on the form.
Gordon stood before Chenango County Court Judge W. Howard Sullivan to have the warrant dismissed, which he explained would throw out all the physical evidence in the case.
John M. Gavazzi, 47, Greene, was arrested June 25 following an investigation by the technical arm of the New York State Police into child pornography Internet trafficking.
Gavazzi originally pleaded guilty to promoting child pornography, a Class D felony, and possession of child pornography, an E felony, on July 20, but later had his guilty plea vacated by Supreme Court Judge Kevin M. Dowd.
On Nov. 23, Gavazzi attended a proceeding to withdraw his plea in which he claimed his previous attorney, Craig Fritzsch of Binghamton, failed to notify him of his rights and failed to explain the crimes he was being pressured to plead guilty to. Following the ruling, Gavazzi was assigned to the public defender’s office. Dowd said he didn’t find fault in Gavazzi’s attorney, but vacated the ruling in the “best interest of justice.”
“Mr. Gavazzi is somewhat of a simple man in the sense he is like a lot of other good and productive people in our society that don’t really grasp the justice system. He told the court he pleaded guilty to crimes, but didn’t actually understand what he was admitting to,” said Gordon.
Gordon said his client was also not technologically proficient, claiming Gavazzi accidentally acquired underage pornography while searching for legal pornography. Gordon acknowledged a level of ignorance on his client’s part, but said Gavazzi had no intention of actively seeking out underage images.
In another development in the case, Gordon challenged the legality of the executed state police search warrant in a hearing last Monday. Presenting the document his client was served with on the day of his arrest, Gordon pointed out that the officer writing up the warrant wrote “Town of Broome Court, County of Broome,” when identifying which court approved the warrant. The warrant’s correct label should have been “Town of Greene, County of Chenango.”
“We have a warrant based on a court with no jurisdiction, your honor. Nowhere in the document does it again mention the issuing court. From what I understand, this is a critical error. Further your honor, anyone served with the warrant wouldn’t know it originated from the Town of Greene Court; just looking at it one should realized there is no Town of Broome Court anywhere. Certainly it’s our position that the officers or any other person bothering to read the document over before serving it should have picked this up,” said Gordon.
The warrant was signed by Town of Greene Justice Michael Dietrich, but at the hearing the State Police Investigator handling the case testified that the name was illegible.
Investigator James Szenher said he had made the error on the document while filling out the form on his computer, admitting the mistake.
Szenher also testified that after entering Gavazzi’s residence, police discovered “hundreds of printed and electronic images, some obviously depicting child pornography.”
First Assistant District Attorney Stephen Dunshee also asked Szenher to explain what led police to Gavazzi’s residence in the first place.
He testified that Internet providers regularly scan e-mails to locate illegal content. During one of these searches, one of the company’s found the suspect images and contacted authorities. Szenher claimed Gavazzi received and sent images of child pornography across the Internet, saying the defendant’s IP address matched the suspect computer’s and the e-mail account in question actually included Gavazzi’s last four digits of his social security number as part of the named e-mail address.
The same day, Gavazzi gave a four-page statement to police in which Dunshee claimed he admitted to the crimes.
Gordon objected, saying Gavazzi had admitted to receiving the e-mails but was not interested in child porn. Gordon said his client replied to the original sender of the illegal images to tell them to stop sending them, which again sent the images across cyberspace. Gordon said Gavazzi printed out copies of the material so he could contact AOL and turn it over as evidence.
Gordon contended that Gavazzi even contacted AOL over the suspicious images, but District Attorney Joseph McBride said Gavazzi contacted the service after his arrest in an attempt to cover up his intentions.
McBride also contended that the warrant did not need to be thrown out saying the case was a first for legal precedent.
“There is no case law I know of that says a defendant gets to walk free just because an officer wrote Broome instead of Greene,” He said.
Dunshee characterized the mistake as a typo in court and drew objection from Gordon.
“It’s not a typo. A typo would be something like Town of Breene Court, but writing the entire word Broome instead of Chenango or Greene – that’s not a typo judge, that’s nothing but an error.”
“This defendant should not escape justice because of a technical error,” McBride told the court.
Both attorneys cited a number of case laws during the hearing and Sullivan said he would reserve on the decision. He has 60 days to issue a ruling in the matter.
“If it’s thrown out, then the evidence is gone, there is really no case,” said Gordon.