Heard: March 8, 2019.
found and returned in the Superior Court Department on
February 25, 2011.
motion for a new trial was considered by Daniel M. Wrenn, J.
A. Bachrach for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Present: Wolohojian, Milkey, & Shin, JJ.
Superior Court judge revoked the defendant's probation
after determining that he violated the special condition that
he not possess pornography and that he failed to report to
probation officers on two occasions. The defendant now
appeals from the denial of his motion for a new trial,
arguing that the term
"pornography" is vague as applied to his conduct
and that the judge's finding that he failed to report to
probation was based on unreliable hearsay. We conclude that
the defendant had fair warning that at least one of the
categories of materials he possessed -- explicit stories
describing the rapes of young children -- constituted
pornography in violation of the special condition. Although
we conclude that the defendant did not have fair warning that
some of the other materials he possessed were pornographic,
and agree with his contention that the judge's finding of
failure to report rested on unreliable hearsay, we need not
remand the matter because the judge made clear that in
determining the disposition he considered only the fact that
the defendant committed a probation violation, along with the
underlying crime for which he was on probation. We therefore
defendant pleaded guilty in November 2012 to two charges of
possession of child pornography and one charge of failure to
register as a sex offender. He was sentenced to a term of
incarceration on the child pornography convictions and five
years' probation on the failure to register conviction. A
special condition of his probation was that he "not
2014 the probation department served the defendant with a
surrender notice alleging that he violated several of his
probation conditions. After an evidentiary hearing, held in
May 2015, the judge made oral findings that the defendant
twice failed to report to probation and that he possessed
pornography, which the judge defined as "pictures or
writings of sexual activity intended solely to excite
lascivious feelings of a particularly blatant and aberrant
kind." Finding the defendant in violation on these
grounds, the judge revoked his probation and sentenced him to
State prison for not less than five years and not more than
five years and one day.
Possession of pornography.
defendant argues that he was not on fair notice that the
materials he possessed qualified as pornography in violation
of the special condition. The materials in question consisted
of letters, photographs, and stories that the defendant sent
to various inmates at the house of correction from which he
had been recently released. Portions of the letters are
nonsexual in nature while others describe, with varying
degrees of detail, sexual acts involving the defendant, the
letters' intended recipients, and other
adults. The photographs, which accompanied some of
the letters, are of fully clothed adults, adults in their
underwear, and the defendant unclothed but with his hand
covering his genitals. Last, the defendant included with two
of the letters what he characterizes as "fantasy
stories." We need not ...