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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Appellant, v. Stephen M. YURUCKSO, Respondent.

Decided: August 05, 2002

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, NANCY E. SMITH and THOMAS A. ADAMS, JJ. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for appellant. John N. Fath, P.C., Patchogue, N.Y. (David C. Weisberg of counsel), for respondent.

Appeal by the People from an order of the County Court, Suffolk County (Corso, J.), dated December 18, 2001, which, after a hearing, granted those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to law enforcement officials.

ORDERED that the order is reversed, on the law, those branches of the defendant's omnibus motion which were to suppress his statement to law enforcement officials and physical evidence are denied, and the matter is remitted to the County Court, Suffolk County, for further proceedings.

The hearing court found that the defendant's consent for detectives to search his home computer for child pornography was coerced because the detectives threatened that if he did not consent, they would obtain a search warrant and also would seize his computer at his place of employment.   We disagree.

Based upon the circumstances of the detectives' interview with the defendant in his own living room, including the defendant's maturity, education, employment status, his apparent willingness to cooperate, and the calm and non-coercive context of the interview, we find that the defendant's consent was voluntary (see People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575).   The explanation by the detectives of the likely future course of the investigation if the defendant refused to consent, including the issuance of a warrant to obtain access to the defendant's work computer, does not render the consent invalid, since the detectives in no way deceived or misled him (see People v. La Duke, 206 A.D.2d 859, 614 N.Y.S.2d 851;  see also United States v. Palacios, 1995 WL 328390 [5th Cir. (Tex.), June 01, 1995];  United States v. Kaplan, 895 F.2d 618;  United States v. Iglesias, 881 F.2d 1519, cert. denied 493 U.S. 1088, 110 S.Ct. 1154, 107 L.Ed.2d 1057;  United States v. Calvente, 722 F.2d 1019, cert. denied 471 U.S. 1021, 105 S.Ct. 2030, 85 L.Ed.2d 313;  United States v. Tortorello, 533 F.2d 809, cert. denied 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177;   United State v. Faruolo, 506 F.2d 490;  United States ex rel. Gockley v. Myers, 378 F.2d 398, 399;  Mares v. State, 500 P.2d 530, 534 n. 1 [Wyo.];  State v. Yoss, 146 Mont. 508, 514, 409 P.2d 452;  People v. Reyes, 174 Colo. 377, 381, 483 P.2d 1342;  State v. Christofferson, 101 Idaho 156, 610 P.2d 515;  State v. Rathburn, 195 Neb. 485, 239 N.W.2d 253;  People v. Ward, 27 Cal.App.3d 218, 103 Cal.Rptr. 671;  State v. Lyons, 76 Wash.2d 343, 458 P.2d 30).   The defendant's consent was the product of his knowing and intelligent decision to accept the consequences of a consent search of his home computer rather than face the consequences of a wider search pursuant to a warrant that would encompass his computer at work.

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