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Assault case spotlights search warrants

ALBANY -- New York's highest court yesterday upheld a group home worker's sex assault conviction, concluding his rights against illegal search weren't violated when police belatedly found a deleted video from his digital camera after he asked for it back.

The Court of Appeals unanimously concluded the 2009 search warrant for Stephen DeProspero's computer and cameras remained in effect a year after it was issued and months after he was first convicted of possessing child pornography. The video, which state police didn't find during an initial examination that turned up one child porn image, showed him molesting a developmentally disabled boy at the state-run residence in Utica.

"We note that neither the Fourth Amendment nor its New York state analogue specifically limit the length of time property may be held following a lawful seizure," Chief Judge Jonathan Lippman wrote.

However, he rejected the notion that private property can be "effectively confiscated" by the state under a search warrant "without a further showing of justification."

In early 2009, DeProspero was identified in a probe of Internet child-porn file-sharing, and police got the warrant to search his home and computers. In September 2009, he pleaded guilty to the child porn possession charge and was sentenced to six months in jail, and his lawyer asked for his property back. In early 2010, police found hundreds of other child porn files, including the deleted video clip, and DeProspero was prosecuted twice more.

DeProspero, 39, is now serving an 18-year state sentence in Attica state prison for predatory sexual assault against a child. He also was convicted in federal court of producing child pornography and faces a 40-year prison term in that case.

The assault probably would have gone unnoticed if DeProspero hadn't asked for his equipment back, Oneida County District Attorney Scott McNamara said. The prosecutor said it had to be checked again to ensure authorities weren't returning any child pornography, prompting a more thorough examination.

"Had he never asked for it back, that computer would be sitting in a closet someplace and he would be on probation right now," he said.

Defense attorney Frank Policelli said yesterday's decision leaves big questions about how long a search warrant remains valid, a fundamental privacy rights question, and he's considering an appeal to the U.S. Supreme Court.

"Does this mean they can use a search warrant 20 years after it was issued to go search a home? It doesn't say they can't," he said.

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