NORWICH – Chenango County Court Judge W. Howard Sullivan denied a request by the defense to throw out a New York State Police search warrant in a child pornography case that will likely be tested by a higher court in setting unprecedented case law.

Public Defender Alan Gordon raised the issue May 3 after a search warrant allowed state police to seize his client’s computer and other alleged images of child pornography.

“If it’s thrown out, then the evidence is gone, there is really no case,” said Gordon.

Gordon contested that officers made a critical error on the warrant by neglecting to mention the issuing court, which he claims is a fatal error according to New York State law.

“If you were served with this warrant, you wouldn’t have known where it came from,” he said.

“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,” state Sullivan in his five page, June 15, decision.

The defendant in the case, John M. Gavazzi, 47, of Greene, was arrested June 25, 2009 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, 2009, 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.”

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.

Gordon challenged the legality of the executed state police search warrant in a hearing in May. 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 “Village of Greene, County of Chenango.”