People v Facey

[*1] People v Facey 2012 NY Slip Op 50472(U) Decided on March 14, 2012 Criminal Court Of The City Of New York, Kings County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 14, 2012
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Winston Facey, Defendant.



2010KN07025



Appearances:

For the People, Charles J. Hynes, District Attorney, Kings County, by Mariya Goryanina, Esq., Assistant District Attorney.

For the Defendant, Steven Banks, Legal Aid Society by Deepa Ambekar, Esq.

John H. Wilson, J.

Defendant is charged with Criminal Sale of Marijuana in the Fourth Degree (PL Sec. 221.40), Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01), both Class A Misdemeanors, and related charges.

By motion dated November 16, 2011, Defendant moves to suppress all physical evidence recovered pursuant to a search warrant issued by this Court on September 2, 2010. Defendant asserts a violation of his rights under CPL Sec. 690.40.

In the alternative, Defendant requests that this Court recuse itself as a potential witness in any hearing held in this matter.

The Court has reviewed the Court file, Defendant's motion, and the People's response dated March 2, 2012. The Court is also in receipt of a letter dated March 9, 2012 from Defendant's counsel in further support of Defendant's motion.

For the reasons stated below, Defendant's motion is denied in its entirety.

STATEMENT OF FACTS

Defendant was arrested on September 2, 2010 outside of 800 Crown Street, Brooklyn New York at 4:45 PM. Pursuant to the Criminal Court Complaint, Defendant was allegedly observed by Detective Daniel Aybar receiving "a sum of United States Currency in exchange for...a quantity of marijuana." See, Criminal Court Complaint dated September 3, 2010. [*2]

Detective Aybar then appeared before this Court later in the evening of September 2, 2010, and swore to the facts contained within an Affidavit dated September 2, 2010. There, the Detective detailed his observations of the alleged marijuana sale. See, Affidavit of Detective Aybar dated September 2, 2010, p 1, para 4.

The Detective also stated in the Affidavit that Defendant "with a set of keys in his hand, attempted to open the door" of 800 Crown Street. See, Affidavit of Detective Aybar dated September 2, 2010, p 2, para 6. After arresting Defendant, the Detective recovered "5 ziplock bags of marijuana" from the person of the Defendant. See, Affidavit of Detective Aybar dated September 2, 2010, p 2, para 7.

The Detective's Affidavit then states that the Detective "entered the hallway of the subject building, and approached the door of the subject apartment, which was open, and...smelled an odor of marijuana emanating from inside the subject apartment."See, Affidavit of Detective Aybar dated September 2, 2010, p 2, para 8. After ascertaining from persons present in the apartment that Defendant resided at that location, the Detective observed "in plain view, on the floor of the subject location...several ziplock bags...(of)...marijuana." See, Affidavit of Detective Aybar dated September 2, 2010, p 2, para 9-10.

Detective Aybar did then secure the location, and seek the search warrant which is the subject of Defendant's motion.See, Affidavit of Detective Aybar dated September 2, 2010, p 2, para 12.

After swearing in Detective Aybar, and reading the Affidavit, this Court did issue a search warrant for Apartment 1R of 800 Crown Street, Brooklyn, New York. Upon the execution of a search warrant, the items recovered during the search of the premises included a loaded 9 MM Black Helman handgun. See, Criminal Court Complaint dated September 3, 2010.

An unredacted copy of the search warrant and Affidavit of Detective Aybar, both dated September 2, 2010, were provided to Defendant.

ARGUMENTS OF THE PARTIES

Defendant asserts that the evidence recovered pursuant to the search warrant dated September 2, 2010 must be suppressed since the Court failed to record or summarize the search warrant application on the Court's record. See, Defendant's motion dated November 16, 2011, p 2. In the alternative, Defendant requests that a hearing be held to determine whether or not there was probable cause for the issuance of the warrant, and since this Court would be a potential witness at said hearing, this Court must recuse itself for further consideration of this matter. See, Defendant's motion dated November 16, 2011, p 4,

The People assert that "there is no statutory requirement that the Justice issuing the search warrant MUST conduct an examination of any witnesses, but merely MAY conduct such an examination, and IF such an examination is conducted then it MUST be recorded." See, People's [*3]response dated March 2, 2012, p2 para 5 (emphasis in original). Further, since "there is no evidence (this Court) conducted any such examination...the fact that there is no record...is immaterial."See, People's response dated March 2, 2012, p2 para 5.

DEFENDANT HAS ESTABLISHED HIS STANDING

TO CHALLENGE THE SEARCH WARRANT

As a preliminary matter, the Court must determine whether Defendant has standing to challenge the legality of the search. Defendant bears the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises searched. See People v Ramirez-Portoreal, 88 NY2d 99, 108, 643 NYS2d 502 (1996); People v Ponder, 54 NY2d 160, 165, 445 NYS2d 57(1981).

The Criminal Justice Agency Report for Defendant indicates that the targeted premises is not his residence. There, Defendant claims to reside with his parents at 1730 Carroll Street, Apartment C16, Brooklyn, New York. However, the People do not contend that Defendant lacks standing to bring this motion. Accordingly, the Court finds that Defendant will be deemed to have standing to challenge the search as a lawful occupant of the targeted premises.

THE SEARCH WARRANT WAS SUPPORTED

BY PROBABLE CAUSE

A defendant seeking to controvert a search warrant has the burden of proving by a preponderance of the evidence that a deficiency in the warrant exists. See, Franks v Delaware, 438 U.S. 154, 98 S Ct 2674, 57 L Ed2d 667 (1978).

When determining whether probable cause exists, the Court of Appeals has stated that there is no "infallible formula":

"[I]n the real world, we are confronted with search warrant applications which are generally not composed by lawyers in the quiet of a law library but rather by law enforcement officers who are acting under stress and often within the context of a volatile situation. Consequently such search warrant applications should not be read in a hyper-technical manner as if they were entries in an essay contest. On the contrary, they must be considered in the clear light of everyday experience accorded all reasonable inferences.

People v Hanlon, 36 NY2d 549, 559, 369 NYS2d 677 (1975)

Thus, warrants should be scrutinized in a "common sense and realistic fashion." People v Glen, 30 NY2d 252, 263, 331 NYS2d 656 (1972). Further, there is a strong preference in favor of upholding warrants. See, Hanlon; People v Graham, 220 AD2d 769 633 NYS2d 334 (2d Dept, 1995), app den 89 NY2d 942, 655 NYS2d 893 (1997). [*4]

In the instant matter, in support of his application for a search warrant, Detective Daniel Aybar provided an Affidavit to this Court on September 2, 2010. The Detective based his Affidavit upon his own observations of the Defendant's activities outside of 800 Crown Street, and his further observations of the subject apartment.

In general, when hearsay evidence is presented to the Court in an application for a search warrant, that information must be evaluated pursuant to the "two-pronged" test of Aguilar v Texas, 378 US 108, 84 S Ct 1509, 12 L Ed2d 723 (1964) and Spinelli v United States, 393 US 410, 89 S Ct 584, 21 L Ed2d 637 (1969), which the New York Court of Appeals adopted in People v Griminger 71 NY2d 635, 529 NYS2d 55 (1988). Pursuant to the Aguilar-Spinelli test, a warrant may issue if a judge finds sufficient grounds to conclude that: 1) the informant was reliable, and 2) that his information was credible.

In the instant case, however, there was no hearsay presented to this Court. All information presented to the Court in support of the request for the search warrant was all based upon the Detective's own observations. Therefore, the Aguilar-Spinelli test is inapplicable. This Court was is in a position to directly assess the informant's veracity, and thereby determine whether or not there was probable cause for the warrant to issue. See People v Taylor, 73 NY2d 683, 688, 543 NYS2d 357 (1989); People v. Pratt, 266 AD2d 318, 698 NYS2d 283 (2d Dept 1999).

In the instant matter, Detective Aybar based his Affidavit upon his own investigation and observations. Thus, the information provided in the Detective's Affidavit was sufficient to allow this Court to fully assess the reliability and credibility of the Detective, and make a probable cause determination based upon said Affidavit..

In People v. Castillo, 80 NY2d 578, 585, 592 NYS2d 945 (1992), cert den, 507 US 1033, 113 S Ct 1854, 123 L Ed2d 477 (1993), the Court of Appeals stated that where a search was conducted pursuant to a search warrant issued by a judge who has personally examined the informant, there is "a presumption of validity attached to the warrant given that a Magistrate had already reviewed the purported basis for the search and determined it to be valid." Therefore, this Court is "left with the relatively uncomplicated task of deciding whether, based on the warrant application and supporting affidavit...the issuing Judge reasonably could have concluded that probable cause existed." 80 NY2d at 585, citing People v Hendricks, 25 NY2d 129, 138, 303 NYS2d 33 (1969); See, also, People v. Rainey, 14 NY2d 35, 38 -38, 248 NYS2d 33 (1964).

Thus, this Court finds that the information provided in Detective Aybar's warrant application established probable cause for this Court to issue the search warrant on September 2, 2010.

A TRANSCRIPT OR RECORDING OF THE WARRANT APPLICATION WAS NOT MADE, NOR WAS ONE NECESSARY UNDER CPL SEC. 690.40[*5]

Under CPL Sec. 690.40(1), "(i)n determining an application for a search warrant, the court may examine, under oath, any person whom it believes may possess pertinent information. Any such examination must be either recorded or summarized on the record by the court."

Defendant interprets this section of the Criminal Procedure Law as requiring all warrant applications to be recorded or summarized. However, this position is a misreading of the statute.

A search warrant may issue without a recording or summary of the application where the supporting depositions of the witnesses provide probable cause for the issuance of the warrant. See, People v. Dominique, 229 AD2d 719, 645 NYS2d 625 (3d Dept, 1996), aff, 90 NY2d 880, 661 NYS2d 597 (1997). See, also, People v. Tinkham, 273 AD2d 619, 620, 711 NYS2d 522 (3d Dept, 2000), lv to app den, 95 NY2d 872, 715 NYS2d 227 (2000) (Court issuing a search warrant was not required to record or summarize victim's statements where the victim's deposition testimony provided probable cause for the warrant to issue).

In considering an application for a search warrant, the issuing court "may properly rely upon reasonable inferences which may be drawn from the allegations of fact in the application." See, People v. Williams, 119 AD2d 606, 500 NYS2d 778 (2d Dept, 1986), app den, 68 NY2d 761, 506 NYS2d 1049 (1986). Here, as discussed above, the Affidavit of Detective Aybar provided ample allegations of fact which allowed the Court to make a reasonable inference and find probable cause without the need of further testimony from the Detective. Since an oral examination of the witness was not required, no recording or summary was necessary.

Moreover, the permissive nature of the statute is discussed in the practice commentary to CPL Sec. 690.40. "(T)he determination of probable cause for issuance of a search warrant on written application need not be made solely on the basis of allegations set forth in writing; the allegations may be supplemented by testimony." Preiser, P, Practice Commentary, CPL Sec. 690.40, McKinney's, Book 11A, p 176.

Thus, as the statute permits, this Court found sufficient the allegations of fact contained within the Detective's sworn Affidavit of facts submitted in support of the warrant application and did not choose to take testimony from the Detective.[FN1]

Since there are no notes, recordings or minutes of the warrant application, there is no need for a hearing on this issue. All the evidence submitted in support of the warrant application is contained within the Affidavit of Detective Daniel Aybar dated September 2, 2010. Thus, this Court need not recuse itself in this matter. See, NY Judiciary Law, Sec. 14. [*6]

Accordingly, Defendants' motion to suppress any evidence recovered pursuant to the search warrant pursuant to CPL Article 690 is hereby denied in its entirety.

All other arguments advanced by Defendant has been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkMarch 14, 2012

_______________________________Hon. John H. Wilson, JCC

Footnotes

Footnote 1: In Counsel's letter of March 9, 2012, the defense notes that the warrant application contains language which suggests that sworn testimony of the Detective was taken by this Court. The Court regrets that this language was not stricken from the application prior to the witness swearing to the contents of the document, and verifies that no testimony was taken from the Detective by the Court on the evening that the warrant was issued.