NORWICH – A man pleaded guilty to child pornography charges Wednesday and had his sentence stayed by Chenango County Court Judge W. Howard Sullivan in a case that is expected to set a new statewide legal precedent regarding search warrants.
John M. Gavazzi, 47, of Greene, pleaded guilty to promoting child pornography, a Class D felony, and possession of child pornography, a Class E felony, without any plea arrangement made with prosecutors.
Public Defender Alan Gordon said his client pleaded guilty to all the charges against him without a plea bargain so he could maintain his right to appeal the case. Gordon said plea deals in other cases often required defendants to surrender their rights to appeal in exchange for a lighter sentence.
Gordon said the court had agreed to sentence his client to 90 days in the Chenango County Correctional Facility, 10 years probation and place Gavazzi on the sex offender registry.
Sullivan granted a request made by Gordon for a 120-day stay in Gavazzi’s sentence saying the public defender’s office was appealing the controversial case.
Gavazzi said he was surprised but pleased the judge granted his stay following court. He said he had expected to be remanded to jail.
District Attorney Joseph McBride objected to the stay and asked for Gavazzi to start his sentence immediately.
Gavazzi was arrested June 25 following an investigation by the New York State Police into child pornography Internet trafficking.
During the police investigation officers executed a “no-knock” search warrant at his Village of Greene home and removed several suspected images of child pornography.
However, New York State Police Investigator James Szenher later admitted to making an error on the warrant which the defense believes should dismiss all the seized evidence.
On May 3, Gordon challenged the legality of the executed state police search warrant in county court. Gordon pointed out that warrant incorrectly stated “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.
McBride told the court at the May hearing, “This defendant should not escape justice because of a technical error.”
Sullivan later denied the request to throw out the warrant, but acknowledged in his five-page June 15 decision that the subject was in uncharted legal waters.
“Scant case law on the subject exists – which explains why the People and the Defense rely on the same cases for their positions – and no prior decisions are directly on point,” stated Sullivan in his decision.
Sullivan agreed last week to postpone Gavazzi’s sentence for 120 days; after that the New York State Appellate Division will have to approve any further stays in the sentence while the defense appeals.
Gordon said Gavazzi was sent the material without having sought it out, but admitted his client kept the images on his computer and then responded back to the e-mail that originally sent the images.
Gavazzi claimed he replied to the original sender to tell them to stop e-mailing him the material.
“I’ve told him that is not a legal defense,” said Gordon during the plea.
McBride asked the court to schedule another appearance for the case 120 days from Monday in the event Gavazzi receives no further stay from the appellate division.