People v Rukasov

[*1] People v Rukasov 2008 NY Slip Op 52108(U) [21 Misc 3d 1120(A)] Decided on October 22, 2008 Supreme Court, Richmond County Rienzi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 22, 2008
Supreme Court, Richmond County

The People of the State of New York,

against

Alexander Rukasov, Defendant(s)



47/2008



For the People:

Daniel Donovan

District Attorney of Richmond County

by David Frey, A.D.A.

For the defendant:

Leonard Ressler, Esq.

125-10 Queens Blvd.

Kew Gardens, NY 11415

Leonard P. Rienzi, J.

Defendant moves to controvert a search warrant for defendant's home at 35 Beresford Avenue, Staten Island, signed by a Justice of the Supreme Court in Kings County on December 5, 2006. The primary contention of the defendant is that the December 5th search warrant affidavit lacks probable cause to believe evidence might be found in defendant's home.

The search warrant at issue was obtained at the conclusion of a wide ranging, extensive and comprehensive investigation (commencing in October of 1992) into money laundering and prostitution through a group of escort services. The targets of the investigation included fourteen (14) corporations, eleven (11) escort services and eleven (11) individuals including the defendant. The records of six (6) banks and four (4) telephone companies were subpoenaed and examined. Although the primary focus of the investigation was in Kings County, the investigation reached corporate and real estate investments in Florida, Maryland and Maine. The first search warrant was obtained in July 2003. A series of eavesdropping warrants were obtained and affidavits were submitted in support thereof on July 24, 2006, August 9, 2006, August 23, 2006, September 8, 2006, September 22, 2006, October 26, 2006 and November 22, 2006. The affiant in the applications for the above eavesdropping warrants and extensions was New York City Police Department Detective Stanley Jacobson who was assigned to Kings County District Attorney's Office. Detective Jacobson [*2]was also the affiant in the instant search warrant affidavit, dated December 5, 2006. Copies of each of Detective Jacobson's eavesdropping affidavits were attached to the instant search warrant application and were "incorporated" therein and "made a part of this application" (SW Affidavit, p 3, paragraph 3).

Defendant, while conceding that the search warrant application establishes probable cause to believe that crimes were taking place relating to the escort services, and that he was a participant, argues that he was merely a "Driver/bodyguard", a low level position rendering it unlikely that he would have evidence in his home (and on his computer). The People argue that defendant was much more deeply involved in the operation of this extensive criminal enterprise and that his actions as delineated in the eavesdropping and instant search warrant affidavits support the probable cause determination by the warrant issuing magistrate for the search of his home.

The search warrant affidavit dated December 5, 2006 and the eavesdropping warrant affidavits incorporated therein establish a basis for the finding of probable cause to search defendant's home by the Supreme Court Justice who signed the search warrant. Defendant's role in the criminal enterprise was far higher in the chain of command than a driver/bodyguard.

During the five month period prior to the execution of the instant search warrant, the affidavits demonstrate that the defendant on a regular basis collected escort service-prostitution proceeds from other drivers and deposited them into enterprise bank accounts. He served as a conduit for the exchange of money and operational information between the principal target of the criminal enterprise (William Badyna), his brother-in-law and chief deputy (James Pipitone) and office workers, drivers and prostitutes. He regularly discussed day-to-day business operations (e.g. which drivers and prostitutes were working on particular nights, how much was being earned, etc.). He was placed in charge of the extensive criminal enterprise when the principals (Badyna and Pipitone) were away on vacation. He agreed to maintain e-mail contact with Badyna and Pipitone while they were on vacation. He discussed business operations and methods of improving profits. He was assigned by Badyna to take photos of the prostitutes and post them on the website and to translate advertisements into Russian. The actions of defendant, as delineated in the affidavits before the issuing magistrate, demonstrate that defendant's role and assignment in the operation was far closer to the top management of the criminal enterprise than to the bottom.

As the New York Court of Appeals has pointed out in People v Edwards, 69 NY2d 814, 815 (1987): "[A] search warrant application must provide the magistrate with information sufficient to support a reasonable belief that evidence of illegal activity will be present at the time and place of the search." The United States Supreme Court has described probable cause as "a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules" (Illinois v Gates, 462 US 213, 232 [1983]). The Supreme Court further stated in Gates:

Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." Spinelli, supra, 393 U.S., at 419, 89 S.Ct., at 590.

* * * [*3]

Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a "substantial basis for ... conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Jones v United States, 362 U.S. 257, 271, 80 S.Ct., 725, 736. Illinois v Gates, supra, at 236.

As the New York Court of Appeals has stated, "Where a search warrant has been secured, the bona fides of the police will be presumed and the subsequent search upheld in a marginal or doubtful case" (People v Hanlon, supra, at 558).

Paying "great deference" to the issuing magistrate's determination of probable cause and finding a "substantial basis" for his determination, defendant's motion for a hearing to controvert the search warrant is denied. In addition, and for similar reasons, defendant's motion to controvert the March 7, 2007 search warrant (for further access to the seized computer related equipment seized pursuant to the December 5, 2006 warrant) is denied. Nor do the other assertions by defendant provide a legal basis for controverting the search warrants or suppressing evidence. Accordingly, defendant's motion is denied in all respects.

This constitutes the decision, opinion and order of the court.

Dated:October 22, 2008

Staten Island, New York______________________________Leonard P. Rienzi