Smith v. Thompson, No. 1:2015cv00712 - Document 3 (W.D.N.Y. 2015)

Court Description: DECISION AND ORDER that within 90 days of the entry of this Order, Respondent shall file and serve an answer and memorandum of law; Petitioner shall have 30 days upon receipt of the answer to file a written response; the Clerk of Court shall serve a copy of the petition and this Order electronically via a Notice of Electronic Filing to Alyson Gill and Arlene Roces of the Office of the Attorney General, Federal Habeas Unit. Signed by William M. Skretny, United States District Judge on 9/15/2015. (Attachments: # 1 Petition). (Copy of Order mailed to Petitioner). (CMD)

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Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 1 of 22 Page2 PETTTTON UNDER 23 U.S.C. gt214 FOR WRm OF IIABEAS CORPUS BY A PERSON IN STATE CUSTODY United States District Court Na:ne (underwhich you v/ore corwicted) Place ofConfinement Petitioner : RIAN District: WESTERN T. SMITII Docket or Case Nb.: TY-t\',n> taA GOLLINS CORRECTIONAi. n1e yder wnic.llyou were conyicted) SMITH,PTo Se. faCtttfy (inclurle the RIAN T. Pris.oacr No. ; : lE -B - 37 Respondeat 48 (autho.rizcd pcrson having cusrody of.pctitioner) JAMES THOMPSOil, SUPERIN'TENDENT v, NE}.IiYom --t'o\.. zo15 \A ,*W : IITY lgqBl, N'Y" 14305 ' : NIAG RA T'AT.T.S PART. Located.at,:' 7925 main Street Niagana Fa1ls r'r:';.''ri:1r;--'-':'".'.-'""'--'COUNTY COURT -- "-- -'.--:::-:Ir:l=------'":r'1r ' a "'_'-' " : ','' - '1*-t__+::I;+._::"-:'_';' : , - . - , . -, -::.-:i.-. .(b)Criminal,do"t."tor:"aie",,"';;iiiv",,r."o*l.2oL2.o89 I 2. (a) Date ofthe judgment-of conviction (ifyou know): May 3rd ,ZOL2 (b)Dateof sentencing: Novemb,er 3' 4. 5. 29th , 2OL2 Lengthofsentence: 4 year s 12 yeats post-release supervtsion In this case, were you convicted on more than one count orof more than one crime? a Identifuallcrimesofwhichyouwereconvictedandsentencedinthiscase:qrirninal controlIedsubstanceintheFifthdegree-r-- 6. f} yes il posseasion of No a (a) V/hat was your plea? (Check one) ?. O (t) A {D guilty Guilty Not il O (3) (4) Nolo contendere (no conrast) Insanity ple a Dockets.Justia.com Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 2 of 22 Page 3 7. I did not testiff at a pretrial hearing, trial, or a post-trial hearing. 8. I did appeal from the judgment of conviction. 9. (a) Name of court Appllate Division, 4e Judicial Department (b) Case number: 1075, KA 13-00441 . (c) Result Unanimously affirmed. (d) Date of result 11-14-14. (e) Citation to the case: 995 N.Y.S.2d 881, 122 A.D.3d 1300, People v. Smith, (N.Y.A.D.4 Dept. 2014). (Q Grounds raised: lneffective Assistiance of Counsel, Personal Expectation of Privacy, lllegal search and seizure, Absene of Probable Cause to search the Defendanfs person and premises. (g) I did seek further review by a higher court. (1) Name of court STATE OF NEW YORK, COURT OF APPEALS. (2) Case number: 1075, KA 13-AcE.41 (3) Result Purcuant to Defendant's CPLS460.20 Application for Leave to Appeal to the Court of Appeals, the application was denied by the Court of Appeals, decided by the Honorable Judge; Shelia AbdusSalaam, Associate Judge. (4) Date of result 6-29-2015. (5) I do not have the citation to this case. (6) Grounds raised: The same grounds that were raised on my CPLS440.10 motion to vacate the judgment and my Direct Appeal. Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 3 of 22 Page 4 (h) I did not file a ptition for rertiorari in the United States Supreme Court. (10) I have filed other motions conceming this judgment of conviction in State Courts. (1 1) (a) (1) Name of court Niagara Falls City Court, County Court Part. Also; Appellate Court of the Fourth Judicial Department. (2) Case numbers: SCI No. 2012-089(City Court), and KA 1302046 with SCI No. 2012-089 for a CPLS460.15 Motion to Grant Leave to Appeal. (3) Date of filings: 6-3-2013(City Court), and 1 1-12-2A13 (4) Nature of proceedings: CPL 440.10 Motion to Vacate the Judgment (City Court), and CPL$460.15 Motion to Grant Leave to Appeal denial of 440 Motion. (5) Grounds raised: lneffective assistance of @unsel, lllegal Search and Seizure, Absene of Probable Cause to Search the person and the premises of the Defendant, and Legitimate Perconal Expectation of Privacy. (6) I did not receive any hearings where evidence was given on my motions. (7) Result They were both denied. (8) Date of results: 10-30-2013(City Court) and 1 2-19-2Dfi. (b) I did not file any second or third motions whatsrever. (12) Grounds that I state wftich are the very reasons r,vhy my incarceration is in violation of rny Constitutional Rights by Constitutional Law. GROUND ONE: On February 2,2AQ; for my Preliminary hearing, my former attomey; James J. Fam Jr. appeared in court and without any Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 4 of 22 Page 5 established investigation proeeded to pre-plea bargain in open court without ever attempting to move with a Motion to Dismiss or an Omnibus Motion prion to this action. On March 22,2012; lor my Anaignment, my fomer attomey: James J. Faso Jr. appeared in court and crerced me into signing a waiver of indictment pursuant to CPLS195.10 and CPL$195.20 without ever making any defense from his investigation of the evidence by way of moving with any types of rnotions to Dismiss, Motions to Suppress, and or an Omnibus Motion. On May 3,2Q12; for my SCI plea, my fomer attomeyJames J. Faso Jr. appeared in court and coerced me into signing a Waiver o Appeal and Post-Judgment Revianr Rights, and a Judicial Dlversion Contract (drug court) without ever moving wlth any motions in my defense from a investigation that would have revealed a obvious Constitutional Rights violation from an illegal Search and seizure of my person and premises due to a warrantless search of rny person and premises. Counsel rendered lneffective Assistance of Counsel due to the facts that he never made any investigation to find a defence or defense that would be in my favor and where counsel failed to move to have the only evidence against me suppressed and if he would have done so the outcome of the case would have been totally different. (a) Supporting facts: The Defendanfs name was never on the face of tre wanant nor was there any probable cause to search the person and the premises of the Defendant due to the description of the warant and the absene of any probable cause to wanant a strip search, anest, or any fonn of search that requires a wanant" Also counsel was ineffstive by not making any investigation whatsoever without an explanation as to wtry he chose not to do so, which in tum severely pre.iurliced the Defendant who was and is innmnt due to these deficient acts prfomred by counsel. (b) I exhausted my state rernedies and argued these issues on direc* appeal. (c) I raised these issues through post-conviction motions. Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 5 of 22 Page 6 Type of motions: CPL$44A10 Motion to vacate the judgment, and CPLS460.15 Motion to Grant Leave to Appeal. Name and location of the courts where these Motions were filed: Niagara Falls City Court (County Court Part), and Supreme Court of The State of Neyv York Appellate Division, Fourth Department. Case numbens: $Cl No. 2012-089 and l(A 13-02046, SCI No.2012-089. Date of Decisions: 10-30-2013 and 12-19-2A13. Resultrs: See attached. I did not reeive any hearings on either motion. I did appeal from the denial of my CPL5449.10 Motion to vacate judgment. I did raise those same lssues on appeal. Name and location of the court yvfiere appeal of denial of CPL$440.10 motion uras filed: SUPREME COURT OF THE STATE OF NEW YORK, APPELISTE DMISION FOURTH DEPARTMENT, in the form of a CPLS460.'15 motion. Case nurnber KA 13-02046 Date of courts decision: 12-19-2013 Result See attached. GROUilD TWO: lllegal search and seizure due to the fact that there was no probable cause for the search of the Defendant's percon or his premises. (a) Supporting facts: The Defendanfs name was never on the face of the wanant, there was no probable cause to conduct a strip search and or Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 6 of 22 page 7 to anest the Defendant due to the clear and convincing documentary evidence provided by the face of the wanant and the rranant application, prmf of Social Services rental support and payrnents provided ftom the Niagara County Department of Social Servires, uyhich shows that the Defendant had a 'Legitimate Personal Expedation of Privaqf and any search that was conducted without probable cause urhlch revealed contraband in the Defendanfs psse$sion bemmes illegal and the evidence becomes "Fruit of The Poisonous Tree" and must be suppressed. I have extrausted my State remedies conceming this issue on Direct Appeal after I had moved with my Post-conviction motion of a CPL5440.10 vvfiere I was denied and I then moved with a CPLS460,15 motion forthe denial of the rnotion to vacate the judgment, and that to was also denied. The name, locations of the murts urhere I filed these motions, and dates of decisions are on page 6 of this Petition and are attached to this Petition. GROUI{D THREE: LEGITIII ATE PERSOI'IAL EXPECTATION OF PRMACY" (a) Supporting facts: Clear and rcnvinclng drcumentary prmf providd from The Department of Social Services tuhich particularly displays clear separation of aparfrnents within the residen@ of a multldwelling unit, ufiene the Defendant was renting apartment A-1 of 1951 Falls Street, Niagara Falls, N.Y., through the rental support of Smial SeMces. I have used the same remedies to argue these yery issues in State Courts using the same motions I filed in the same courts that I established on this page and page 6 of this Petition. GROUND FOUR: IAW ENFORCEMENTS VIOI.ATIONS OF PRCEDURE DUE PROCESS AND THEIR VIOISTIONS OF THE EXCLUSIONARY RULES. (a) Supprting facts: The defendanfs counsel failed to invesfigate the clear violations of the promdure due prmess that raas thoroughly Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 7 of 22 page 8 performed by Law Enforement who chose to disregard the Exclusionary Rules set forth, and executed an illegal stripsearch on the Defendant where the uarant clearly displays and shouls them that they had no probable cause whatsoever to mnduct such a search on a person who was not describerl on the face of the warrant, and also where the Defendant never displayed any acts or was to be found in possession of any weapon upon a procedural pat-trisk that would of justified their actions. I have exhausted my State remedies raising the same issues and moved with the same motions, which were all filed in the same courts as I have established on pages 6, and 7 of this Petition conceming ground #four. 13. All of the grounds for relief urere raised and presented to the highest court in the state; STATE OF NEW YORK COURT OF APPEALS. 4" I have previously filed a28 U"S.C.A" CORPUS uritfr this court. f 22il WRIT OF HABEAS Name and location of the coud, Case number, type of prmeeding, issues raisd, and the date of the courts decision: U.S, DISTRIGT COURT, WESTERI{ DISTRICT OF ilfEW YORK, address; United States Courthouse, Buffalo, N.Y. 1d.2A2A350, Docket No. 'l:13-cv-00349-RJAHBS, Tyre of proreeding: 28 U.S.C.A" 22il WRIT OF HABEAS CORPUS, the issues raised are the same issues raised in this petition along with further exhaustion of State remedies, Result Dismissed without prejudim pending Petitioner's exhaustion of State remedies. See attached. '15. I do not haye any other motions, appeals, or petitions pending at this time. '16. These are the names and addresses of the following attome/s who represented me in the following stages of the judgment I am challenging: Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 8 of 22 page I (a.) At preliminary hearing: James J. Faso Jr. of 152A Pine Avenue, P.O. Box2127 NMS, Niagara Falls, NewYork 14301, telephone: (716) 2823276, Facsimile (716) 282-3283. (b") At anaignment and plea: James J. Faso Jr", Supra. (c.) At trial: "fames J. Faso Jr., Supra. (d) At sentencing: James J, Faso Jr", Supra. (e) On appeal: Patricia M. McGrath, esq., PO Box 293, Lockport, N.Y. 14095-0293: Address for Ovemight Delivery Services: 37 East Ave,, Lockport, N.Y. 14095;(71S) 438-7575-+ffice, 167 O25-1535-fax, pmmcgraffi@hotmail.mrn f (0 ln any post-conviction proceedings: Self" {g) On appeal from any ruling against me in any post-rcnvidion prrcdings: Self" . I da not have any future sentence{s) to serve afrer the completion of the.iudgrnent that I am challenging" 17 18. TIMELINESS OF PETITION: My judgment of conyiction hcame final on June zgt*, 7$15, vvfrich clearly sfrcnrls tfrat I arn not tirne baned from the statute of limitations as mntained in 28 U.S.C.A. g 22M{d'). Therefore, Petitioner asks that the Court grant the follorrying relief: Reyerse the judgrment of mnviction, Suppress; all tangible and testimonial evidence, Dismiss; the lndictrnent, Expunge this rcnviction off my record, and or any other relief to which Petitioner rnay be entitled. Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 9 of 22 Page 10 declare under the penalty of rerjury that the foregoing is true and conect IS UOIDUS and that this Petition for Writ of Habeas Cogrus yas placed in the prison mailing system an ( **3-t 5 2015 I ,G7 Executed and signed on ( 1 -?- t s ) Ar', #Irru Signature of Petitioner Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 10 of 22 STATE OF NEW YORK COLTNTY COURT COUNTY OF NIAGARA THE PEOPLE OF THE STATE OF NEW YORK DECISION CPL44OMOTION VS. SCI No. 2012-089 RIAN T. SMITH, Defendant HON. ANGELO J. MORINELLO, Acting County Court Judge The Defendant moves, Pro Se, to vacate the judgment of conviction on the ground that he was deprived of the effective assistance of counsel under the United States and New York State Constitutions (CPL $440.10t11[h]). The People oppose the Motion. The Defendant was charged in a felony complaint on November26,201l, with Criminal Possession of Controlled Substance in the Third Degree (PL $220.16[l]) and Criminal Possession of a Controlled Substance in the Fourth Degree (PL $220.09t11). On February 2, 2}l2,he waived his right to a Preliminary Hearing, and thereafter on March 22,2012,he waived indictment and consented to be prosecuted by a Superior Court Information (SCI) charging him with Criminal Possession of a Controlled Substance in the Third Degree (PL $220.16(l). He entered a plea of Not Guilty and requested consideration for the CPL Article 216 Jndicial Diversion Program (JDP). On May 3,2012, as a result of fuither discussion of the Defendant's counsel and the People, the charge of Criminal Possession of a Controlled Substance in the Third Degree (PL $220.16(1) was reduced to Criminal Possession of a CoUtrolled Substance in the Fifth Degree (PL 9220.06). Upon a determination by this Court pursuant to CPL $216.05 (3)O), that the Defendant should be offered judicial diversion for alcohol or substance abuse treatment, the 7v Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 11 of 22 Defendant entered into a negotiated plea agreement. pursuant to its terms, the Defendant signed a waiver of Appeal and Post-Judgment Review Rights, pleaded guilty to criminal PossesSion of a Controlled Substance in the Fifth Degree (pL $220.06), executed a JDp contract' and was received into the JDP Drug court Treatment program in lieu of being sentenced to prison' The JDP contract provided, inter alia,that if the Defendant successfully completed the JDP' the Felony charge would be dismissed and the Defendant would plead guilty to criminal Possession of a Controlled Substance in the Seventh ;";r." (pL $220.03) and receive a conditional Discharge. If the Defendant failed to successfully complete the Program, he would be sentenced on the charge of criminal possession of a controlled substance in the Fifth Degree (PL $220.06], to a term of imprisonment of 4 years, with postRelease Supervision of 2 years. During the Defendant's participation in the JDP, he violated the terms of his contract, was sanctioned on several occasions, removed from the drug treatment program on November 29'2012' and sentenced to four (4) years imprisonment, with post-Release Supervision of two (2) years' A copy of the Notice of Appeal to the Supreme court, Appellate Decision, Fourth Department, dated November 30,2012,was filed in this Court on Decemb er 4,2ol2by the Defendant's counsel. The Defendant now moves pursuant to cPL $440.10, to vacate his judgment of conviction on the basis of ineffective assistance of counsel, and in support thereof, submits his own affidavit, along with Exhibits "A" through'oG, " arleging that his counsel was ineffective in that he failed to move to suppress evidence; failed to investigate the search warrant, and when Defendant provided him with relevant information and asked about a suppression hearing' counsel advised that the Defendant would lose, and that he should take part in the drug program or go to prison' The Defendant also alleges that counsel coerced him into pleading guilty; advised him to sign a plea agreement which waived his right to appeal and postjudgment review rights, and failed to fully inform him of the rneaning of the waivers or to explain the consequences of the plea. The Defendant further claims that counsel failed to render objective representation; failed to provide Defendant with speedy trial rights; and failed to communicate with him except for brief periods during court appearances. The Defendant Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 12 of 22 alleges that while he was attempting to withdraw his plea, he was sentenced on Novemb er 29, 2012,, and on that same day, he placed the facts of ineffective assistance of counsel on the record. The People submit an affirmation in opposition, requesting that the Motion be denied, and alleging that the advantageous plea agreement negotiated by defense counsel for the Defendant demonstrates counsel's effectiveness, and that the Defendant has failed to substantiate the claims of ineffective assistance of counser. l' The right to effective counsel under the New York State constitution (N.y. const. Article $6) guarantees a defendant meaningful representation (people v Baldi, 54 Ny2d 137, 147 [1981])' when a defendant has been convicted on a guilty plea, he has been afforded meaningful representation when he receives an advantageous plea and "nothing in the record casts doubt on the apparent effectiveness of counsel.,, (people v Ford, g6 N.y.2d 3g7,404t19951). The plea minutes reflect that a highly beneficial disposition was negotiated for the Defendant that would hur" his exposure to incarceration. Even with the "li*inated Defendant's failure to successfully complete the JDp, his sentence of four (4) years imprisonment and two (2) years post-release supervision, was a substantial reduction from his exposure on the original charge to a determinate sentence of up to twelve (12) years, and postrelease supervision up to three (3) years. Although the Defendant contends that counsel failed to request a suppression hearing, such failure to make a pretrial motion generally does not, by itself, establish ineffective assistance of counsel. (People v Rivera, 7l N.y.2d 705,70g tlgggl). The Defendant must show that the motion, if made, would have been successful. reqplg-Ilraauhg,os ,27 A.D.3d, 1l l5 (4th Dept' 2006), and must also demonstrate the absence of strategic or other legitimate explanations for counsel not pursuing a hearing (People v Garcia, 75 g73,974[1gg0], N.y.2d citing People v Rivera suprct, at709). Here, the Defendant failed to make a sufficient ' showing that the motion would have been successful, or to demonstrate that there was no legitimate reasons for not pursuing the motion, or that counsel otherwise failed to provide meaningful ropresentarion (people v Leeper. 254 A.D.2d,754 thDept. 199s); pgp&-y_e!aru, 222 A'D'2d 1038 (4th Dept. 1995), lv. denied 88 N.y. 2d,9g2(1996). Absent such showings, ( -75 Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 13 of 22 it will be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing the motion. (people v Rivera , supra at709) Although the Defendant has submitted his own affidavit, he has not submitted other corroborating affidavits or evidence, the absence of which is particularly relevant here where a number of the Defendant's claims are contradicted by minutes of the proceedings For example, the Defendant's allegation that his counsel coerced him to plead guilty claim is contradicted by the plea allocution minutes of May 3,zol2,wherein he stated to the court that he was pleading guilty freely and voluntarily, and in response to the specific question asking him if "anyone, including the Court, or the District Attorney, your attorney or the police threatened or forced you or influenced you against your own free will to get you to plead...is anybody forcing you?" the Defendant answered "No, your Honor.,, In addition, his contention that counsel did not explain the full extent of his waiver of rights to appeal and post-judgment review is contradicted by his statements during the plea allocation' when asked by the Court if his counsel had explained the waiver of Appeal and Post-Judgment Review Rights, and whether he understood the waivers, the Defendant answered "Yes' Yes' Your Honor." He also answered in the affirmative when asked whether he had sufficient time to consult with his counsel and if he was satisfied with counsel,s services. Further, the Defendant's claim that his counsel did not explain the consequences of the plea is controverted in the plea allocution, when the Court articulated its promise to the Defendant with respect to the benefits and consequences of the plea. The court explained that if the Defendant successfully completed the JDP, he would be allowed to withdraw his plea to the Felony. which would be dismissed, and would be permitted to plead guilty to an A Misdemeanor for which he would be given a conditional Discharge, and that if he didn,t successfully complete the Program, he would be sentenced to 4 years in state prison and 2 years Post-Release supervision. when the Defendant was asked if he understood this, he replied "Yes, Your. Honor." Finally, the remaining claims of the Defendant, including his allegation that counsel did not provide him with speedy trial rights, are not supportod with factual allegations. As such, there is nothing in the record or in the unsupported nonrecord facts alleged by 7t Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 14 of 22 the Defendant which demonstrates that the Defendant received anything other than an advantageous plea, or that casts doubt on the apparent effectiveness of counsel.' Accordingly, the Defendant is not entitled to a hearing on his claims under the New york constitution. Under the United States Constitution (U.S. Const. 6th Amendment), in order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel,s performance was deficient and that the deficiency prejudiced the defense (Strickland v Washin8ton, 466 u'S' 668 [19s4]). To satisfy the second requirement in the context of a guilty plea, a defendant must make factual allegations showing that "there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Hill v Lockhart,474 U.S. 52,59 tl9g5l). As discussed above, the Defendant's allegations do not show that counsel,s performance was deficient' Moreover, the Defendant's conclusory statement that there was a reasonable probability that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial, without further supporting evidence, is not sufficient to show the requisite prejudice to the Defendant. (see cPL g 440.30t4ltbl). In the absence of evidentiary facts showing the context of the alleged errors of counsel and how the errors would have caused him to rejeet the plea and to proceed to trial, the Defendant has failed to demonstrate that he was prejudiced by counsel's representation. People v McDonald, I N.y.3d 10g (2003); people v Ford,46 N'Y'2d l02l (1979). The Defendant has not alleged that he is innocent or asserted any facts that might constitute a legal defense to the charges. under such circumstances, there appears to be no reasonable possibility that he would have insisted on going to trial and risked a harsher sentence. In light of these findings, the court concludes that the unsupported nonrecord facts alleged by the Defendant fail to demonstrate that counsel's performance was deficient and that the alleged deficiencies prejudiced his defense, and as such, the Defendant is not entitled to a hearing on his claims under the United states constitution. In sum, the Defendant has not shown that the nonrecord facts he seeks to establish to support his contention that he was deprived of the effective assistance of counsel under the New York and United States constitution are material and would entitle him to relief. people v. 77 s Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 15 of 22 . r ,3 Satterfield. 66 N.Y.2d 7 96, 7gg (1 985) In accordance with all of the above, upon consideration of the submissions of the parties, the minutes of the proceedings, and the official court file; and viewing the evidence, the law and the circumstances of this case in totatity and as of the time of the representation, and upon due deliberation thereon, this Court concludes that the Defendant received meaningful assistance of counsel and the constitutional requirements have been met. (see generally people v Satterfield, supra; people v Baldi s?tpra, at , 147). Therefore, the Motion of the Defendant is denied in its entirety without the necessity of conducting a hearing' as the allegations essential to support of the Motion are contradicted by the court record, or are made solely by the Defendant and are unsupoorted by any other affrdavit or evidence, and under these and all the other circumstances of this case, there is no reasonable possibility that such allegations are true. CpL $440.30(4Xd). NOW. it is hereby ORDERED, that the Motion be and the same is hereby denied in all respects. This constitutes the Decision and order of the Court. Dated: October 30, 2013 Niagara Falls, New york NOTICE AS TO FURTHER APPEAL The Defendant is hereby advised pursuant to New York Rules of Cour! Supreme Court, Appellate Division, Fourth Departnenq of his right to move for permission .--^ to appeal, as the case *uys, right to-mov" dd p";;sion to p."&J 1d :f $e appeal as a poor person. If the Defendant s6-requests, the cierk shall proriptly p*pr*, file and serve a notice of appeal on behalf of tlr; tiir.rvcnn 1039.3[a]). qprrff; ilf.rdil. 71 6 * Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 16 of 22 SUPREME COURT OF THE STATE OF NEW YORI( App r llu tt iliaixt r n, if, aartll J u h iri ul KA B rp urtrnrnt 13-02046 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V zuAN T. SMITH, DEFENDANT-APPELLANT. SCI No.: 2}l2-08g l" Edriarii D. Cariri" Assoeiaie.l"siice oi'ilte Apoeilaie )in'isioii" iroutl;i.i.rdicial Deparlment, do hereby cer1iff that upon the motion of defendant for a certificate granting leave to appeal pursuant to CPL 460.15 from an order of the Niagara County Court dated October 30,2013,there is no question of law or fact which ought to be reviewed by this Court, and permission to appeal is hereby denied. DATED: .Dc 4 -*,,. Lr.t t ,l z at1 *r,#,-.*./De*.-; Hon. Edward D. Cami Associate Justice I CIWECF LIVE - U.S. District Court:nywd Case 1:15-cv-00712-RJA ' https //ecf.nywd.circ2.dcn/cgi-bin/Dispatch.pl?9963 : Document 1 Filed 08/11/15 Page 17 of 22 I4 29 60025 4 Other Orders/Judgments 3-cv-00349-RJA-HBS Smith Graham 1 :1 v. HABIAS, HBS, ProSe U.S. DISTRICT COURT U.S. District Court, Western District of New York Notice of Electronic Filing The following transaction was entered on31312014 at 4:12 PM EST and frled on3l3l20l4 Smith v. Graham Case Name: CaseNumber: ' -{.ifcr-- i:i3-c,v-00-149-Ria-HBS Document Number: 16(No document attached) - Docket Text: -CLERK TO FOLLOW UP- TEXT ORDER: Adopting Magistrate Judge Hugh B. Scott's Report and Recommendation as filed on February 4,2014, Respondent's motion to dismiss the Petitioner's petition is granted without prejudice pending the petitioner's exhaustion of his state court remedies. The Glerk of Court shall close the case. Signed by Hon. Richard J. Arcara on 31312A14. (Staff, Lisa) 1:13-cv-00349-RJA-HBS Notice has been electronically mailed to: Thomas B enj amin Litsky thomas. litsky @ag. ny. gov 1:13-cv-00349-RJA-HBS Notice has been delivered by other means to: Rian T. Smith t2-B-3748 AUBURN CORRECTIONAL FACILITY Box 618 Auburn, NY 13021 I of 1 03/0312014 4:13 PM CI\4/ECF LIVE - U.S. District Court:nywd https : //ecf.nywd.circ2.dcn/cgi-bir/Dispatch.pl? Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 18 of 22 ' 7 227 54885528002 Other Orders/Judgm ents 3-cv-00349-RJA-HBS Smith v. Graham 1 :1 Fi.&mfAS,HBS,ProSe U.S. DISTRICT COURT U.S. District Court, Western District of New York Notice of Electronic Filing The following transaction was entered on3l4l20l4 at 11:58 AM EST and filed on3l4/2014 Smith v. Graham Case 1:13-ci-00349-RJA-HBS Name: eifelGffir:- Filer: WARNING: CASE CLOSED on03l04l20l4 Document Number:17 Docket Text: JUDGMENT in favor of Harold D. Graham against Rian T. Smith. Signed by the Clerk of the Court on 3t412414. (DLC) 1:13-cv-00349-RJA-HBS Notice has been electronically mailed to: Thomas Benjamin Litsky thomas.iitslcy @ag.ny .gov 1:13-cv-00349-RJA-HBS Notice has been delivered by other means to: Rian T. Smith 12-B-3748 AI.]BIIRN CORRECTI ONAL FACIL ITY Box 618 Auburn, NY 13021 The following document(s) are associated with this transaction: Document description: Main Document Original filename:n/a Electronic document Stamp: I STAMP dcecfStamp lD: I 04257 90 5 8 lD ate:3 I 4 I 20 1 4] [FileNumber: 26 6 3 8 8 1 -0] [835 1 lb3f90a447bb552a829bff1 3fb1 579b22ea00b16ab2e7f17b841e43a17 al29f8 248 4 d4 d44e 5 a5 092662fcadd6 607 2R 099 c e l26b 4fa7 2b7 07 t8fdd{ d5 ad6l l l of 1 31412014 11:59 AM Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 19 of 22 Case l-:13-cv-00349-RJA-HBS Document l-7 Filed O3lO4lL4 Page 1 of 1 AO 450 (Rev. 5/85) Judgment in a Civil Case United States District Court IMESTERN DISTRICT OF NEW YORK fuan T. Smith JUDGMENT IN A CIVIL CASE CASE NUMBER: 13-CV-349 - A v. Harold D. Graham E Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. El Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADruDGED, adopting Magistrate Judge Hugh B. Scott's Report and Recommendation as filed on February 4,2014. Respondent's motion to dismiss the Petitioner's petition is granted without prejudice pending the petitioner's exhaustion of his state court remedies. Date: March4,2014 MICHAEL J. ROEMER, Clerk of the Court By: s/Denise Collier Deputy Clerk Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 20YORI( OF THE STATE OF NEIil of 22 SUPRE,ME COURT Appellate Division, Fourth Jadicial Department 1075 KA 13-00441 PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V YIEMORANDUM AND ORDER RIAN T. SMITH, DEFENDANT_APPELLANT. PATRICIA M. MCGRATHI LOCKPORT' FOR DEFENDANT-APPELLANT' RIAN T. SMITH, DEFENDANT-APPELLANT PRO SE. MICHAEL J. VIOLANTE. DISTRTCT ATTORNEY, LOCKPORT (LAURA COUNSEL), FOR RESPONDENT. T. BITTNER OE Appeal from a judgment of the Niagara County Court (Angelo J. Morinello, A.J.), rendered November 29, 201-2- The judgrment convj-cted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fift.h degiree. It is hereby ORDERED that the judgment so appeal-ed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controffed We reject substance in the fifth deqrree tPenal Law S 22A.A6 t5l). defendant's contention that his waiver of the right to appeal was Here, County Court's plea colloquy and defendant's execution invalld. of a written waiver of the right to appeal demonstrate that defendant's \\ 'waiwer of the right to appeal was a knowing and voluntary choice' " (People v Brawn, 296 ADZd 860, 860, 7w denied 98 In addition, we NY2d 161; see People v Kemp,255 AD2d 397,397). was "adequately apprised . that the riEht conclude that defendant t,o appeal is separate and distinct from those rights automatically forfeited upon a plea of gruilty" {Peaple v Buske, 87 AD3d 1-354, L354, l-v denied 18 NY3d 882 [internal quotation marks omitted] ) . We further conclude that defendant's val-id wai-ver of the ri-ght to appeal encompasses his challenge to the severity of the sentence (see People v Lococo, 92 NY2d 825, 827; People v Raynor, LA7 AD3d 1567, 1568 , l-v denied 22 NY3d 1090). To the extent that defendant conLends in hi-s mai-n brief defense counsel was ineffective for fai-1ing to chal-1enge the warrant, we note that such contention "does not survive [hisl [hisl valid waiver of t]:e right. to appeal because [he] failed demonsLraLe that the plea bargainingi process was infected by that search plea or to Ithe] Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 21 of 22 -2- 1075 KA 13-004{1 allegedly ineffective assistance or that [he] entered the plea because of IhisJ attorney['s] a11eged1y poor performance" (Peopfe v GJeen, 73 AD3d 1,443, 1444, 7v denied 15 NY3d 773 [internal quotation marks omittedl; see People w Wright, 66 AD3d 1334, L334, 7v denred 13 NY3d 9L2) . To the ext.ent that defendant contends i-n his pro se supplemental brief that the plea bargaining process was infected by defense counsel's a11eged1y ineffective assistance, we further note t.hat defendant's specific claims, i.e., that defense counsel failed to investigate and failed to make a suppression motion, are "not properly before us because lthey] involve[] matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440" (Peopie v Monaghan, 101 AD3d 1686, 7686, Lv denied 23 NY3d 965; see Peopl-e v Johnson, Bl- AD3d L428, a428, fv denied 16 NY3d 896) . Finally, we reject defendant's contention that the court erred in denyingr his motion to withdraw his guilty plea without an ewidentiary hearingr. " 'The decision to permi-t a defendant to withdraw a guiJ-ty plea rests in the sound discretion of the court' tr (PeopJe w Falaro, 284 AD2d 972, 9'12; see People v Burroughs, 224 ADZd 1034, 7034, lv denred BB NY2d 845, , and where, as here, a defendant's motion to withdraw is "patently insufficient on its facer" the court may summarily deny the motion (PeopJe v Mitchel-l-, 21 NY3d 964, 96'1). - Entered: Nowember 14, 2AL4 Erances E. Cafarell Clerk of the Court Case 1:15-cv-00712-RJA Document 1 Filed 08/11/15 Page 22 of 22 Ftsts of ns$ &ort €uurt of Bppssts BEFORE: HON. SIIEILA ABDUS-SALAAM, Associate Judge THE PEOPLE OF THE STATE OF NEW YORK, Respondent -against- ORDER DEI\IYING LEAYE RIAN T. SMTH, Appellant. Appellant having applied for leave to appeal to this Court pursuant to Criminal Procedure Law $ 46A.20 from an order in the above-captioned case;* UPON the papers filed and due deliberation, it is ORDERED tlrat the application is denied. Dated: JUN 2 I 2015 Associate Judge *Description of Order: Order of the Appellate Division, Foirth Deparfinent, entered November 14,2A14, affirming a judgment of &e Niagara County CouG rendered November 29,2012. Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 1 of 63 lr WESTEN DISTRICT OF NEW YORK STATE RIAN T. SMITH Petitioner, -VS,. . .-. : JAMES THOMPSON; SUPERINTENDENI OF COLLINS CORRECTIONAL FACILITY .: ' " , Respondent. BREIF IN SUPPORT OF 28 U.S.C. S 2254 FOR A WRIT OF HABEAS CORPUS SUBII,IIITTED BY: RIAN T. SIUITH, PRO'SE to: , New York State Attorney General The Capitol, Dept of Law, Ihe Executive Bldg., Albany, Nerv York L2224-0332 Collins. New York 14034{'340 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 2 of 63 TABLE OF CONTENTS Preliminary Statement" """ "" """ 3 OF HIS CHALLENGE THE ILLEGAL'SEARCH pRrvAcY CLEARLY HAD $TANDING TO POiNt I: PETITIONER LeclirrvrrrH expecrmoN oF pREsoN AND pREilriEriiile io nrs frEfiiionious LEGlTlMATEPERsoNALExPEqTATloNoFPR1\lACY..;|.:,,.n H$l . .,-.:lHwAslLLEGALLYsenncrre_qr.lgsEjlTANYPRoBABLE r- rH E r-ev,ru -oF [' r,lxF 1[BIff 1tdlffj' iliEdr;iFrid;ldnr;q!! -AsrHE AcrloNs oF vloGreo-EY iiaIrs ierffrdn-fi-fr'dnicr-e4niv coNsrrruT|oNAL poLrcE oFFIcERS DuRTNG rHEIR uruitliiioiliiii ffiilraicH oF HlM" """"""'7 INADEQUATE couNsEL'-sg!-1sl9Ns' AND LApI-9I'LEGALKNoVI'LEDGE' cit'r,rtAL PRAcrlcE aniJ'irtr-o-i 1511i}"lirtipi'r-iinr-ror,rl <ifnesq nrenrs ro EFFEcnvE rr{\rEsrrcArpr,r inoiecieo DE'RUED penrr6-nrri'-iir- cogqriiirlofrnrr-v PolNr lll: $itxi,F,HlEJ oN l1s i'iiEilimeni-RlcHrs BAsED i'niE'tiiDiiiE.trir cuarr,r - " " " " " " " " " "{ r^Evrr- 3 13 GONCLUSION ""'17 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 3 of 63 FEDERAL CASES 1984) tgaOt U.S. v. Cionic. 466 U.S. 648(U.S.Okla. . SgSfU.S.Pa. @ois. gzgU.S.+ra.+gort964) eron v. nrurirez. qa U.S. SSt fZOO+) ...16 """"' 16 ..,......11 '.. '..6,9 r.gss).....,,....:...... 1s @U.S. States. ggg tJ,S. tO. t4tS t9^aF) 10 .tofrnsorw. UniteO szrus.nrr. @U.S. f saz. eas.ct. soJ rtsozt ZIOSI) aOt?t thiteO Stptes v.,nna*in. +20 fgd Aq. A8PO Cir. Utissouri v. frvejg? S.Ct. tgggfU.S.tfio- .. .. 6110 .. 13,15 .-.....-- 10 ........- 15 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 4 of 63 11 11 12 11 6,10 11,15 13 13 16 11 13 10 11 llt Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 5 of 63 QUESTIONS PRESENTED: Question: Was evidence obtained lllegally? Answer: Yes. Due to the fact that police officers were not *airanted to make a search of Peiitioner. Was Petitioner convicted on illegally obtained , evidence? ' t swer: Answer: Yes. Due to the fact that the evidence was illega llY obtained in a warrantless search which, makes i! "fruit of the ,: Question: Did Petitioner receive effective assistance of counsel?, Answer: No. Due to th9 fa"tlh?!. his co.unge.l.failed to investigate and make a defense of the Petitioner, by failing to move.to have the only evidence against the Petitioner suppressed, which was illegally obtained in in illegal search of his person. 2 ' Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 6 of 63 PRELIMINARY STATEM ENT: BACKGROUND On November 26th, z}fi at approximately 12:30a.m. The Niagara Falls Police Department executed of a search wanant for the premises at 1951 Falls Street ap3rtment #1 lower, ,the person named on the face of the warrant; Justin J,,Thomton, who's physical description: black mate, 5'-51 tall 30Lbs and who's date of birth was listed as 5t22t1976 (See Exhibit '81, clearly establishedlthe premises and target of said warrant. The Petitioner ivas present during this execution and was detained with his hands zipped tied behind his back, and was complying with the police offtcers basic questions in a calm manner. Police officers asked him who house was this? The Petitioner 'responded; 'Rian he was and whose Smith", I pay rent f-or this room and that guy you just escorted through the .1A"(Smith was nodding door pays rent for the other room, l'm apartment his heaci towards the iabeling on his apartmenUroom's door as he exptained this) and he is apartment "18". Police officers then performed a pat-frisk of Mr. Smith, which revealed nothing incriminating, and then 10 minutes tater an additionat pat-frisk was performed on Mr. Smith, which' again revealed nothing incriminating. Right after this a detective approached Mr. Smith and demanded the police officers to take the zip ties' off of him, the detective demanded Mr. Smith to disrobe himself in order to do a visual body cavity search. As Petitioner complied with these demands, the detective was thoroughly going through every item of clothing that Mr. Smith was handing to hirn. After Petitioner handed him his jeanslpants the detective allegedly made a discovery of a knotted plastic bag in Mr. Smith's front pants pocket. A field test of a portion of the substance that was in the Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 7 of 63 plastic bag was conducted later and the results were a positive for the presence of cocaine. Mr. Smith was arrested and charged with criminal possession of a controlled substance in the 3'd and 4th degrees' 1.. On February 2,2A12: my former attorney; counsel appeared in court and without any established investigation proceeded to pre-plea bargain inl open court without ever attrernpting to move with a Motion,to Dlsmiss or a omnibusMotionpriortothisaction.@.,,. . : On March 22,2A12: myformer aftomey; appeared in court and coerced me into signing a waiver of indictment pursuant to CPLS195 tO and Clt ', s195.20withoutevermakinganydefensefromhisinves1igationofthe evidence by way of moving with any types of Motions to Diqmiss, Motions to Suppress, and or a Omnibus Motion. (See Exhibit "F') On May 3, 2A12: my former attomey; counsel appeared in court and coerced me into signing a Waiver of Appeal and Fost-Judgment Review Rights, and a Judicial Diversion Contract (drug court) without evei moving with any motions in my Defense from a investigation that would have revealed a obvious constitutional rights violation from an illegal search and seizure of my person due to a warranfless search of my person. (See Extribit "G'). also (See Exhibits "E' and 4 'F') Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 8 of 63 The Petitioner personally sent a copy of the search wanant (S@ ' Exhibit'B? and a copy of the information from the Department of Social Services that proves that they were paying for my rent at 1951 Falls Street apartment'1A' and not 1 lower as a whofe Gee Exhib$ lA') to my former attorney James J. Faso Jr. Petitioner requested to coungel to see if there was any way to defend against the charges against him by way of a suppression- motion in light of the information he had sent him? Petitioner appeared in court on May 3'd, 2A12 where, counsel direoted and advi:.,! owe'll lose the suppression him just:take the plea, because, as he said; !o motion". He also stated:that I would go home that day 6 rye took the plea bargain. Petitioner, following the advice of learned counset took the plea , bargain and, was not released until the following week on Mat 1}th, 2012. After approximately six rnonths of participation in the Judiciat Diversion Program, Petitioner was removed due issues while in that Brogram, and was sentenced to four years of incarceration and two years of post-release supervision. I am cuffently incarcerated at Collins Conec*ional Facility. t Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 9 of 63 1: GHALLENqE PETITIONER CLEARLY HAD STANDING ;#ILiEAGL SennCtior Hls PERsoN AND PREMISES P-uEJ"9J1!9 POINT fg iliiff6Rrous-LEbiiinnnre pensoNAL ExpEcrArloN oF PRlvAcY CLAIM. . STATE AND FEDERAL HOLDINGS: rented privacy in his The petitioner had a legitimate, personal expectation o! of his room apar.lmenUroom, which gave him standing to challenge tne illegalsearch " and'his person where his arrest was not wananted. Peqple v. Lott. 102 A.D.2d 506[N.y.A.D.,4 Dept. 1984) Absent exigent circumstanTt, a pbrson is deemed to have exclusive possession and control over the premises so as to prohibit a warrantless entry . when he or she occupies a room in a hotel, (People v. Fossetr. 124 A.D'2d 740(?d 4ep't houses. 1gg,6), motel, (People v. Bowers. 126 A.D.2d 897(3d Deo't 1987), or rooming people v. Lott. 102 A.D.2d 506 (4h Dep't 1984) The Petitioner has clearly, by both the New york State Constitution and United States Constitution has established that he had a Legitimate Personal Expectation of Privacy, (People v.'Ponder. 54 N.Y'2d 160(1981), , (People v. Hardy. 77 AD.3d.133 (2010), and (Rakas v- lllinois. 439 U.S. 128. 99 S.Gt. 421(1978). As articulated by Justice Harlan in his "l<atl'concurience, the proper test under the Amendment is whether "a person has exhibited an actual (subjective) expectation of privacy... that society is prepared to recognize as reasonable' Katz v. United St'ates. 389 U.S. 347. 88 S.Ct. gO7 (1S7). lf in the interest of justice this is considered, then absent exigent circumstances, warranttess searches and seizures inside a dwelling are presumptively unreasonable and unconstitutional. Qroh v. Ramirez. 540 U.S. 551. 124 S.Ct' 1284 (2004). Also see Petitionefs 28 U,S.C. 2254 Petition: page T lor Ground Three' 6 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 10 of 63 POINT II: ABSENT THE PETITIONER: MR. SM]TH WAS ILLEGALLY SEARCHED PoLlcER ,g-l1lg-E!! ANy eRoBABLE cAusE rHAf wou1p. wARRANToF-PErlrI9!-E! coNDUcr As rewruf rur conrsnruriouel.mcHrs SFIE THEIR cLEARLy vtoLATED By rHE ACnoNs oF PoLIcE oFFlcERs DURING uNAUiHbilZio sinlFsenncH oF HIM- : pRcrs , -,n AND BACKGRouND: .ir' .: . The Defendant was illegally searched and st!'ip searched where Police Delective : searched through every clothing item of Defendant'q as he was commanded to do so in that situation to undress himself and hand every item of clothing to the Detective absent t- 4Lany probabte cause to arrest the Defendant or to search/strip search the DefEndant at give them that time. police fficers u/ere in possession of a search warrant that did not the probable cause to perform such a search onthe Defendant or his premises. The wanant clearly establishes that the target of the wanant execution was a person by the name of Justin J. Thomton, date of birth: A5t22t1976, a black male wiose attributes were approximately: 5'-5' in height and 130Lbs, who was at the Premises of, 1951 Falls Street Apartment #1 (lower), being a two family dwelling with apartment #1 on the complete first floor in the City of Niagara Falls, New York all of which being urderthe control of JUSTIN J. THORNTON, DOB 0512A1976. The Defendant at that time was renting out a room on the same premises, through the Department of Social Services who were paying the rent for the Defendant during the duration of the Defendant's stay at that apartment. Tangible proof of this latter fact can be found at Exhibit A. Additionally physical characteristics of the Petitioner were dramatically and significantly different from those of the target of the search, 'Justin J. Thornton'. The Petitioner is five foot, seven inches tall (5'-7') and at that time was weighing in at a muscular build of 255lbs, 7 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 11 of 63 renting out the well a black male bom on April 13h, 1982 (4113t82't.The Petitionerwas t::.:t'"'1j_*documented ApartmenUroom address as understood by his landlorf.* of Niagara Falls' Social Services at; 1951 Falls Street Apartment 1A. located in the City probable c?use New York. This clearly establishes that police officers did not have any' . of to search the Petitioner. Granting he had an "l-egitimate Personal Expectation Privacf and should have been protected of his riohfs of the 1 section Fourteenth Amendments to the United States Constitution, and Article Newyork State Constitution. lnstead, the Petitionerwas subjected to an illegal sebrctr and seizure of and then was found to be:in possession of a controlled substance. t:r:: jt ::jj:l::j 9l*" t , --^-a!-l-^ out his owtr lronically the target of tlie wanant, 'Justin J. Thornton'was qlso renting Department of Social Services which was apartmenUroom of the premises through fhe '' described as; 1951 Falls Street Apqrtme.nt 1B' .' 'r , STATE CASES: The Honorable judge: DYE of The Court Of Appeals explained the purpose of satisffing the State and Federat Constitutional requirements: lFor purposes of satisiling the state and Federal constitutional requirements, the searching of two or more residential apartments in the same building'is no different from the searcft of two or (see People more residential houses. Probable cause must be shown in each instance v. Raine,v. 14 N.Y,?d 35(1S4). The Petitioner asserts that the search wanant was invalid to allow the search of his person and premises (see People v. Martinez. 80 N.y.2d 5{g (1992}. The search warrant failed to meet Constitutional and statutory requirements with particularity, with respect to description of place to be searched rahen investigating officers possessed information @ncerning drug activity at particular apartment within rnulti- family dwelling, but wanant identified areas to bs searched as the entire premises, including all it's storage area and curtilage, and thus failed to identify particular apartrnent by number or occupan! (See E&ib[.p), and (see People v, Futton. 49 A.D.3d 1223 (2908). The facts made known to the Magistrate and the reasonable inferences to which they give rise, must create a substantial probability (see 8 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 12 of 63 Pepole v. Baker. 30 N.Y.2d 252. 259) that the authorized invasions of privacy r**l be justified by discovery of the items sought from all persons present when the wam,r*nt is executed. lf this probability is not present, then each person subject to searcfr ,'' rst b€ in the warrant and supporting papers by name or sufficient pr,sonal description. (Pqople V. Nieyes.;36 N.Y.2d 3S. 405 (1975). The Fourth Am*,-rdment identified ' requirement that warrants particularly describe the things be seized demands hat an executing officer can reasonably ascertain and identify the persons or places au ;rcrized and the things authorized to.be seized. Pgople Y. Nieves. supra 36N.Y.i.d ggQ*:,1-92$, Here'the search of the DpJendant'g person after hryo pat-frisk that reveated that the Defendant was unarmed and detained to gqcure Law Enforcements safety exceeded-the scope of the wanant when Law Enforcement executed a strip search dnd visual body,cavity search of Defendant absent any sort of probable cauie to support their conduct (ieoole and (People v. More. 97 N.Y.2d 209 (2002). Due to the description of the.warant police orfficers overstepped their boundaries and authority to pursue a raranantless search of the Defendant and his premises. (Groh v. Ramirez. 540 U.S. 551(200,t1). For these reasons, although a wanant should be ir*erpreted prac{ically, it must be sufficiently definite and clear so that the magistrate, police, and search subjects can objectively ascertain it's scope. (Groh v.,Rarnirez. 54 u.s.551(2004) So, where police possessed a warrant'to search a tavem, it was illegalto conduct a pat search of patron seated at the bar, simply because he was presenton the premises when the wanant was executed: "A person's mere propinquity to othss independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York. 392 U.S. 40. 6263. Where the standard is probable cause, a search of a person must be supported by probable cause particularized with respect to that person. This requirement canrd be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to searoh or seize another or to search the prernises where the person rnay happen to be. The Fourth and Fourteenth Amendments protect the "legitimate expeddions of privact' I Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 13 of 63 ,probable cause to search must be based on particularized infor:mation about the pfaceto be iearcned, not only on.a targels'm919 Pr9qi1^e1ity!g9tl5 independentlv !*prara or criminaia;ivitflwalczvll;R.g, 4tsEQa 13e. 163Pd qii' 20p7l ouotino Uni[eO States v. naartin. +?ar5a 45. eaf?a Cir. zoo5l)' Thus, absent exceptional cirelmstan@s, that present a need for:immediate (Johri$on v. United Statrs' response, the warran! requirement cannot be dispensed with .The purpose of this has been explained by Mr- Justice 333 U.S. 10. 14-15 ( ,The point of the Fourth Amendment, which ofi9n j:. nor gr?:pfl by zealous urhicrl officers, is not grai it ae*es law enforcement the sypport o[tfre usual infqrengeg in requirino !na1 those i*rrl""nie men dra* from eviden@. lt's pi'otection .consists 'and detached magistt"t" being iudged by irrt"i"n""u be drafr uy neutrat 'l$""g.of out crime. 4n{ enterprise tne id;';ff#;g;g;d in " often competitivesupport of feneting. disinte5uteq assumption tnai evidence sr.fficieni to .a Sgislrate's and determination to issue a search wanant would reduce the Amendment to a nullity 6"V, tt * peoples fromes secui'e only in the discrelign of police offiicers. Crime, even in -of the lary tne privacy of'onis'o*n quarters iS, course, 9f grave Tqc"f.t9 sgciety, and The .rio!| of officers to thrust suih crime to be reached on proper showing. to a "rrows themselves into a home is also a grave @ncem, no1 only-to the individual but which chooses to drrvell in ieasonable security.al! [""doT from surveillance. Wn"n tne right of privacy.must reasonably yield to the right of search is, as a rule,lo be agent' OeciOeO Uy i luOicfit o*ibr, not by a poli&man or govemment enforcement *"i"iv EXCLUSIONARY RULES to Due to police officer's clear police misconduct that they have grown accustomed .Exclusionary Rules", they have violated the Defendant's as far as overstepping the Fifth, and Fourteenth Amendmenfs Equal Protection and Due Process Clauses, Fourth, not which was motivated by the mere fact that average citizens of the United States do truly know, and or fully understand their constitutional rights, which places them in a situations of a condition of unawareness, and the mercy of law enforcement. Also spe Petitioner's 28 U.S.C .zzs/.Petition: pages 7-8 for Ground Four. 10 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 14 of 63 v' Mr. Justice GOLDBERG delivered the opinion of the Court, in the case of Escobedo State of lllinois. 378 U.S. 478. 490 (1964). We have also leamed the companion tesson of history that no syslem of criminal justice on, or ifrould, survive if it comes to depend for ifs continued.effectivenesg on unawareness of their onstitutional.rights. No sysfem tn. aiti=*i' "OOi.aildntfrrough fear that if an accused is permitted to cgnsujt with a *"rtn pr"rl*ing should have to : lawyei, he will blcome aware of, and exercise, these nghts: lflhe exercise constitrtionalrights will thwart the effectiveness of a system,o{ law enforcernenl then there is something very wrong with that system. of . . ,:, The petitioner wai illegally searched without an arrest warrant pfqper search warrant, incriminating statements, or any criminal offense committed in the presence'of any police officer which would jirstify and support th9 police officers conduct, and the evidence that was illegally obtained slrould and must be suppressed due to a Pavton . violation, which is supported by Article One Section Twelve of the Nev York State ), whep probable cause Constitution f Pavton v. New York State was completely absent. , another proactive analYsis, ln, .ltisortneCourtThatThe*ExclusionaryRyleprohibits during an unlarrful search, ihe introduction into evidence of tangible materials seized ;o SOS U.S. 5OS. at l search, Silvermen V, United States' S.Ct. OZg(t96tt. Beyond that, the exclusioriary rule also prohibils the ,b6thtangibleandtestimonial,thatistheproductof primary evidence, or that is.othenrise acquired as an indirect result of the unlavvful search, up to tne point at which the connection with the unlawful search !"-*!n9: attenuated as to dissipate the taint" Nardone v. United States. 308 U.S' 338. 341(19391. Wonq sun v. United,slates. 371 U.S. 471. 484485(196311. ll-. ln the United States District Court, Eastern District of New York case of; United States v. Valentine. 591 F.Supp.ZC 2,3E(2008), District Judge, Dora L. lrizarry determined that: 11 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 15 of 63 It is well-setfled that evidence obtained pursuant to an unlawful seizure or search must S be suppressed as "Fruit Of The Poisonous Tree'. See (Wong qun v. Unit *rli,"" detectives allegedly reported that the Petitioner made a spontaneous oral statement after they allegedly reported that they maQe a discovery of drug contraband in his fr:ont pants pocket of the Petitioner j, ln the United States District Court, Westem Dislrict of NewY3rk, United.SJates v. Marchese. 966 F.Supo.2d 223.238.239(W^D.N.Y. ?913), the Honorable Kenneth Schoeder, Jr., United States magistrate Judge, wlaen discussing and analping statement3 made by a Defendant that are'Fruit of the Poisonous'Tree quoted: : '. Thus, verbal evidence which derives so immediately frrcm art unlaurful entry and an unauihorized anest as the officers' actions in the present case is no Jess fruit of official illegality than the more cornmon tangible fruits of unwananted intrusion. See Nueslein v. District of'Columbla, 73 App.D.-C. 85. 1.15 F,?d 690" Nor do the policies underlying the exctusionary rule invite any legical distinction betwpen physical and verbal evilence. Either in terms of deterring lawless conduct; by federal officers, Rea v. United States. 350 U.S. 214. 76 S.Ct. 292. 100 L.Ed. 233, or, of closing the doors of fe{e191-p_urltt^o any use of evidence unconstitutionally obtained, Elkins v. United States. 364 U.S. 2ffi. 8O-S.CI. 1437. 4 L.Ed.2d 1669, the danger in relaxing the exclusionary ruleg in !h9 !f verbal evidence would seem to great to wanant introducing such a distinc-tion ld. At 485-486. 83 S.Ct. 407. Also see Petitionefs 28 U.S.C. 22il Petition: pages 6-7 ior Ground Two. V. MOTHERSELL. 14 NY.2d 358 (2010) AND KtrllmELMAN V. $ORRISON, 477 U,.S. 365 (1,e89}; ALL ILLEGALLY ,OB]ryryEq TANGIBLE AND TESTIMONIAL E\'IDENCE MUST BE SUPPRESSED DUE TO IT BEING -FRUIT OF THE POISONOUS TREE". PURSUANT TO: PEOPLE 12 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 16 of 63 lll: couNsEL'S OMISSIONS, AUq LACK OF LEGAL Xt'lOruLgOe:' inrnoeouATE INVESTIGATIoN AND r-ecr OF PRATTCNI APPLICATIONS OF BAsrc cRtMtNAL pRAcnCE oe-inrvEo, FenrpNER oF co!'l!IT!,n9I{.4!!I pRoTEcrED RIGHTS ro EFFECTME AsstsrANcE. PURSUANI I_o KlltliIELMAN U.S. Bos(U.S,N.J. 19861, NEITHER STONE_V. POWELL, 428_U.S. v. mOnmSON, aoi trgze), NoR wAtNwRtcnr v. sYKE!1433-9.s. 72 (:1s17tr_ql99!P No_r--g.q exEnoe-o To BAR CONCIDERAflON OF' THE PETITIoNER',S $IXII POTNT *i MITTUOMENT RIG}ITS BASED ON HlS TRIAL COUNSEI.'S FAILURE TO ADVANCE HIS FOURTH AMENDiIIENT CLAIM. rNEFFECIIVE ASSISTANSF OF COT NSEL NEW YORK STATE CASES: pursuant to: People v. Baldi, 54 N.Y.2d 137(N.Y. 1 91), Petitioner has satisfied the B?tdi tesJ that is required in the State of New York for claims of ineffective assistance of counsel, due to the fact that counsel's performan@ was so deficient to the point that it was a farce and mockery of justice, making it impossible to say or argue that the defendant's @unsel rendered meaningful representation. People v. Benevgnto. 91 As said by New York State Court of Appeals Judge; R.S. Smith in the case of People v. Tumer. 5 N.Y.2d 476. 1S (N.Y. 2005): It is well established that these constitutional rights are violated if a Defendant's counsel fails to rneet a minimum standard of effectiveness, and defendant suffers preiudice from that failure fstrictclanO V.. Wasnin Baldi. t5 N.v.3d 480154 N.Y.2d 137 (1q81). ($ee. Peoole v. Turner. 5 N.Y.2d 476, 156 (N.Y.2005). 13 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 17 of 63 petitioner suffers sulely of this due to the fac{ that he was coerced into making an plea bargain that still harbored the strong possibility of being incarcerated if unfavorable he was not successful in a Drug Court Diversion Program where it was extremely plan like that one- After Mr' difficult for anybody to complete such a stringent treatment week drug court sanction Smith was removed from the program for posting bail he now suffers as a result of his counsel's po,or performan@, where he had fumished on 'sociat Services that clearly his counsel with documentation fr:om the Department of proves that petitioner not only wa-s r,enting residence not described on the face of the )rh9 documentation also shows clearly that Petitioner wa*ant, (see fxniuts "X an had standing to challenge ther,search of his person ild t: ,Ot"*ises.O* .:'' personal expectation established that he had a legitimate documentation that effectively -: of privacy in that premises. With that proven this shorla that the wanant was facially defective (see Exhibit "A' and "q',). ln the case of (People v. Bennett. 29 N.Y.2d .:, Counsel was foun! ineffective for hi$ lack of investigation or aozil$.y. tgzz), , :preparation on issue of defendant's insanity, whicl'r was only possible defense available , Counsel was to defendant. ln the case of found ineffective for his lack of investigation and poor performance wfrich was made out to be a farce and mockery of justice. Also see People v. Droz. 39 N.Y.2d 457(N.Y. It is well established that according to the New york State Constitution, Petitioner has been prejudiced by his former defense counsel's poor performan@, which was deficient and seriously compromised his right to a fair trial. ln the lower Court, had Petitioner @unsel had done an investigation of the evidence and decided to move for a suppresion hearing for the alleged illegally obtained evidence, the outcome would have bem totally different, in fact two things would have happened: (1.) The evidence would have been suppressed, and (2.) The evidence would have not been suppressed due to tfe discretion of the lower court and it would have more than likely due to the circumstances been suppressed when properly presented to the Appellate Division in the Fourth Department, or The Court of Appeals due to the fact that the issr.es presented would have been on the record and properly in front of both respec{ed Currts who have the 14 . Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 18 of 63 discretion to rule in the interest of justice CRIM pRO Sec. 470.15) to properly suppressed such illegally obtained evidence- FEDEML ALLITEMTION Foundationally in Kimmelma,q v, Monison, 472,U.S. 365(U.S.N.J. 1986) Jusice Brennan delivered the opinion of the Court: "Be cadse:that testing prooess generally will not func{ion properly unless defgnse bounsel has done soirb investigation into the prosecution's case and into various defense strategies, we noted that'counsel has a duty to mafe pasonab-l.e investigations 6r to make a reasonable declsion thqlp-articular invt!igl?tioT^119 unnecessary.' o investigate must be assegs$ for .1 ert reaionaOleness in alf tfre circumstan@s, applying a heavy rneasure of.deferelf,lg counsel's judgments." see ;" oOsLrv Counsel's conducl ln failing to investigate the State's case against the Defendant through discovery was constitutionally deficient under the Sixth Amendment, where due tosuchfailure,counselfailedtotimelymoveforthe.suppressionofcertainevidence allegedly seized in violation of the Fourth Amendrnent (Kimmelman v. Monison. 477 U.S. g6StU.S.N..r. tggO). Where a Defendant is represented by munsel during the plea process and enters a plea upon advice of counsel, the votuntariness of the plea depends on whether the advice was within the range of competence demanded of attorney's in criminal cases. Hillv. Lockhart, 474 U.S. S2(U.S.Ark 1985). The advice of competent counsel in plea bargaining proceedings is a serious responsibility and quality that is needed to provide defendants with their Constitutional Rigfrts to reasonable and adequate assistance of competent counssl during all proceeding. Due to the facts as so quoted by the Supreme Court, Justice Kennedy: "The simple reality that 97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas. Plea bargains have become so central to today's criminaljustice system that defense counsel must meet responsibilities in the plea bargain process to render the adequate 15 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 19 of 63 assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.'Missouriv. Frve. 132 S.Ct. 1399(U.S.Mq. 2d1,2). As established in lJ-S. v. Crpnig. 466 U.S. 6+8(U.S.Ohla. 1gq4t. Unless the accused reseives the effective:assistance of counsel, "a serious risk of injustice infects the kial ffi at 1715 (Cuvler y. Sullivan. 469 case u U.S. v. U.$. 335(U.S.Pa. 1.980) fn th.e Supreme Court of the United States gronic. 4q6 U,i. 6i4?(U.S.okla.1984) Justice Stevens delivered the opi.nion of the itsetf." Cuyter v. Sullivan, U.S., at 343; 100 S.Ct., - Court quoting: iAs Judge.Wy4anski has written': "While a criminal trial is not a game in which the participints are expected to enter the ring with a near match in skills, nether i9 it a 'sacrifibe exJel. William Y. Twgmev. of unarmed prisoners to gladiators." United $tates- -t--- :. The above cases clearly establishes that Petition was denied his NdwYork State and Federal Constitutional Rights, stemming from police misconduct for their obvious illegal search. And, in that of tne P6titioner and the grossly ineffective counsel that deprive Petitioner of his fundamental rights to oounsel and a fair trial which has written this horror story for a layman in the ta\ r, who was forced to endure it. A man who had.built up a great integrity by self educating himself in order to {ight for something that should have not been so easily taken from him, due to the above described events. Also see Petitioner's 28 U.S.G.225F- Petition: pages 4-6 for Ground One. 16 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 20 of 63 qoNcLUs1oN |tisrespeitivelyurgedin.theinterestofjusticethatalltangibleandtegtimonial clearly established facts that the evidence had been illegally obtained in clear violation of the Petitione/s Fourth and fourteenth Amendments to the United States Constitution, and Article One section Twelye of the New York State Constitution, whqre Petitione/s former defense counsel's performance fell below professional norms making a farce and a mockery of justice by not investigating the prosecution's case against Petitioner, where if cournsel had investigated he would have known that the evidence was illegally obtained by way of a illegal search, and would have moved for a suppression of the : evidence where it's suppression would have been granted, which would have changed the outcome of this case. Respectful ly submitted, rcJ,),w 3.;,',urt* Rian T. Smith, Pro Se Dit:d# 12-8-3748 Collins Conectional Facility P.O. Box 340 Collins, New York MA34{/3/;O i {*7*'5 D,&IBD 17 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 21 of 63 EXHIBIT A PROOF OF LEGITIMATE EXPECTANON OF PRIVACY DOCUITIENTED BY THE DEPARTMENT OF SOCIAL SERVICES Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 22 of 63 Dare o4/25/2OLz Type SN-FNP Stats CLOSED PeTd NO PEND Case PA185971 Auth-Period Worlcer Dists NIAG" t-Off 2 Uait UC SP-Code CCAS SCN B FiseaL 29 Irlf NOOT Last Name SMTTH WRIGI{T NIAGARA.FELIS 7L6-284-9320 , Flrsts . siAN .,rfEeUITA NY oe /l(i/Lr"-L2/12/LL MA Ext/Sep Det MA:MA185971 SI',IITH RIAN Address 1951 FALLS APARTMENT LA -^l-alne . Fb.cae Page 1 of 1Autsh 06358348 CASE MAKE.UP 14303 INDI1IIDIIAL App-Date O':- /28 / tt INFORMATTON Status Relat Cin ItI DOB Sex SSN T O4/L3/t9A2 M 8-10s569858 AR38443Q CAS-CL APP-PY M O4 /OS/tgt4 F 1-38Og25323,DEgO30ZF DEN APP-PY SC X Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 23 of 63 AIITHORTZATION PAYMENT HISTORY WINQ2 5 Case PA18697L Type SII-FNP Name SMITH*RIAN Auth No Action St'at CLOSED Dist NIAG Type Peri-od Meth-Pay lad LN VENDOR Fage 1 of 3 Dare o4/25/Z0tz AuEb 06368348 Pecd No PEND a9 / La /tt-]z /tz I tt Auth-Period Sclredule PickuP AmouDE Xssue CICat 300.00 Velld-ID Ch.eck-No RECUR MONTHLY MAlLED 05368348 AUTH 06358348 RECUR-G AUTH Lo/oL/L1-L2/15/LL UNREST 20.00 RECUR SEMI -MO MAILED 0636'8348 AUTI{ ,: UNREST 200.00 RECUR MONTHLY MAILED VENDOR 3oo. oo RECUR" MONTHLY MATLED SEMI -MO MAfLED PRI-RENT )"0 / o L / tL - t2 / z t / tt FS-oNGNG o22998 LoI0L/LL-L2/3t/LL 06353589 .. PRIJRENT ta / at / LL-i"z / ttl tt AUTH o22994 .: 06.353589 063635S9 RECUR.G AUT}I ao/aL/t1--t2/1-s/LL UNREST FS-ONGNG AUTH to/aL/LL-tz13L/LL UNREST 20.o0 RECUR., : 200.00 RECUR iREGEIVED APR 25 2012 NIAGARA COUNTY DEPT OT SOCIAL SERVICES MONTHLY MAILED Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 24 of 63 EXHIBIT SEARCH WARRANT Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 25 of 63 : SEARfE WANNANT sTA.lE OFNEVYARry cotruTrorNIeG/[RAlSS UW AFT{IAGARA FAI.I^S) IfrI lN THE llAiliE oF TtlE PEOPLE OF THE STATE OF r{Ei'TyORr( To Arw FoL$#E T}IESIATE oF I{E,n'YoRK,coUNwoF IiiAd;mL crrroF HAA;[Hifo:** ..--.--..: , .: "-. .- jL-_::::-: ry &,AFFltIvlr, .-2 : ^:.-- --.-. OFFTCER \ r _ -. i _. bi Debctvel i"m6i Remotds' and "J&eprr tsyp^.qgll._ryqa Giaquinb, or- ee ryr*0ara'Fat&s-H. v. rqr* oJr..firent b"iil"rei;.#i'-i;-e.1ffi[U lrHlEBnce Divbion'; qat q"* being reUe eiuse tu-betdyftg ft;t c"rt*n e.iffiiI cgryqirh+ e*idsrce ffi@rr. !!arrr!-rt- particular prson of a crime, or bnde to shoyr lhat a doee exist Ji fficuhr-"rt*" G; . ;11xfrfttril {;' ' " YoU ARE THEREFORE co-[U$gEo_,-ty-.1sr1::Ig?_{"y o.n4iht to make an immediare b-fifn,"[ipii,,i;;.6? i?99h ot&c pen*en knount as-JUSrlN; rrbnmfru oW {30l.bs as well as said prernisei, 1e5t Fatb,strestspt #{ b"i"d;-#;};iii'oilirh'g apartne4t #{ on ttre eomplete frst fioor teidd on at9r".rt; the s6uur-efr; # $heet and -@- on SBL# {59/9:1-{8, in located fite Q$f of nfagaqa Falls, New it**iiiid; };lt; y",{.,;; riiA'"*r* tJiiifii" all.rooms, eonEnts of fiose ioorns, includir.& liat[efis, stairwaid, ab6-;r*.;;'bd;#; -'affic aneasi=cloe€{i, locked & areap--toqpd A6;;:J"idi"il.i-Ira"p-J"n* b said "ggy,rd addrb 1e5{ F-atls 9t?+ ryt #t (tower}, being tt ;{diry&;iii'"s;flt rd; compleb first'floor located on fite south.eide-df.U. Sdt,ano i#"eO ;EBiliS:g,r6i-ri " hllager:a Fallu, I'l€ut, York a[ of gh1.! being unier ttre oorfiot ot';uErftr J T1{ofr*idilda; il;ffi;i};" * 06ma1g76,- FgrrHE'Fol.I.fllflilc defirred frr&dlc zzri.iirrl-iiivi,r"I -pRoBERTy: -Qocaine FBnal Lare of &e Shte of New Yort(, as trsll as 6r anir Implirmerb us6d tti aaminisltE oi Ptcparc santg fur packaging'9r sale or o0ter Ahpensafidn of afuiemanfioned substanes;'as uPll a9- fu any moniee, all nrtt&n papels or artcies, or lneys, or aoy ofirer p6p"o to sftotr lftat crftne Flfling tovioldibn of Articte ?io af tre lGvisea J sd[; ]krYodt hare beonirlnmilbdand^if such proper{ies be tuund Court, in'tfie City of ili,agar:a Faft$, Goucltr of Nqgarq State of ileii Yo-rft ruitroufunngggssaty delay" "iri niieni pi*ii-ifi ffi ; tr4&"t"r. tiorgtit til;id NOTICE GF AUTHORITY AHD TNTENT OF PURPOSE BE AND HEREBY ARE DFPOSED OF PUR$UANT TO SECflON 690"4{I SUB 2 OF TtlE CRilit}.tAL pROCEDUne LeirV Or nre--Srlii SECflOH 6glt"40 THE CRtmti.tAL pRocEDURi=t-Aw oF 'URSUANT trIr|EW-YORX. ' 'i il {rA'cE} ,t . Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 26 of 63 DETAILED POLICE REPORT BY NIAGARA FALLS POLICE DEPARTMENT Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 27 of 63 h,rlt floliq. NF-6{6AD{-t/ E -Ur0<v{-rt I$, c' I B 19. tncident E, 1951 FArJs Addrcdsrq€r No.'APt No.) lJo.,Strcet Namr,Bld& sr AP? *1 N t 26. !'uim alr ornplainant f[' A, t s ? r L t B D 34. Viriim DtD ffisive idfomrati'm on Vkriils Rights ud Scryicas PoEuatrl lo Nerv Yor* Stal€ LarY 37.Alias/Nick arnclMaidan NondLrot,First Middlc) i ( a u a a 38. Apparcil Cqrditior flNpaired Dntgs flMotal . 1? cRrcK CT NrAGARja. Fer,ts Nl 14301 Dis Social S€.€rrity No. 709-60-5427 3tt 3o Qi ;T ,. P R c P E R 6l- Licdsc Plarc No Full partial r r N It R R A T I v E I-l E On the abowe date and. time, dbriag the executiqo:of,.a:..Iaw€trl..searctr";iwarrarrti signed by the Hon. Judge Vitello. NID Detectives trocated a guantity of an off white chunk substance in the Eou€hwest bedroon of ,rustin .f.. Therntoq. A field test was condrrcted on.a i)ortion of the said substance and the results were s.itive for the presence of cocaine..A search of the perspn of Rian T. Smith, who was present.ruring'the execution'of the sear-c.lr warrarrt., revealed a quantity in his front pants of,- anr..ef,f*..rebiLe;clurnk::substartce. in a'knotted p].astic.bag eonducted on.a portion of ttre substance-and the res.ults ket..A field tes'u was ,foc;-thei;rcesence of-.e.ocaine. Also located were 5 digital gran scal6rs and 4 sub1inguaI. Suboxone fiJ"ms. Smith was arrested and charged with crininal possession of a controlled substance in the 3rd arid Ath degrees and $ F, rt € Fr ?8. Rcportiug 6 4 ClYict. Relitsed to Coop, cfe8t fijuv- - NoGrstody Otner Siguturc( [ncludc Rek) Q gl{ftst [.{[etJuv. 7045 OEA REYNOI,DS fiPros. Delirrd 6 \t'amr [OrIe[d* Dead. l]Ettratl. Adviserl Dsclir ) ) Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 28 of 63 4.. Frinted: Lt/28/201L TNCTDENT No.:"NF-1O475-LL . Page 2. of NIAGARA E'AI,LS POLICE DEPT page) INCIDENT REPORT (continuation Br,orTER/CC No.: NF-0'462A4-LL -:--------- AU]JAI]\,A'TL ADDITIONAL }iIARRATIVE NJTi(t(AAl.Vll Thornton was arrested and eharged with cri-minal possession of a controlled. substance j-n the 5th degree. The remainder of the'substances will be submitted totheNiagaraCount,yForensic-t.abforfurEheranaIysis.Adynamicentrywas conducted by NFPD.EF.T wit.hout incident or.injury to police or civilians. ======::====:======:====i===:: .ADDITIO\IAL SUSPECTy'MT SS I}IG,/ARRES TED PERSON ' ---*-i--:-(S ) Address: 1951.EALLS Typg:ARRESTED PERSON Na.me:RIAN TYON SMfTH . Condition: SS *:105-65-9868 A.KA : - ' STREET I{IAGARA FA 990-0974 Business Phone. . : :047L3/19e2 prqel. 29 S6x:M Race:BLK.:Ethnic:NON-HIS.PANIC Skin: l{eight:5 09 lrlej-ght:250 Hair:BLK Eyes:BRO Glasses:NO Build:MEDIUM I{ome Phone: l)oB- - --:-- [t ------ l----------i DRK : 2 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 29 of 63 EXHIBIT D FELONY COMPLAINT AGAINST RIAN T. SMITH Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 30 of 63 EELON Co!,lPr.Arler Poliee Serial su Report No:P3r-19475-LL ,pearance ?icket: Arrest in Custody from: 01:00 Noveober 26, it''i . -' ,t^':"ri'""s":i'. ri' 'r '\r ii;",'n, i'""ltttil ii ll{ii.,,i iti ' E k"".l : 11-o}.L> Nr:mber.. , .:NF-O4354-11 Defendant ' ''-'l D.O.B.: (1) 04/L3/Le82 Blotter/cc No: :}{r**4620 A-Lt Return Date.. .ttLf ?-8|2ALL Court Docket No.: 2011 NIAGARA E'ALLS CITT '' d No. COURS 1925 I"rArN srREET, TTTAGARA rAr,,Ls, hr 14305 THE PEOPT.N OF IHE STATE OF NEW YOAN Rrelr rroN sMIrE (29't ].951 FATLS STREET NTAGARA EAILS, NY 14305 agairst \ DET.IA!,IES T REYNOLDS, Shield t1045, being duly swprn, deposes and says that he. is a member of the NIAGARA FALLS POLICE. DEP?; County of NIAGARA,, New York and that on Lhe 26 day.:f Novernber, 20:-t, at about.l:00AM at :ur^' AI,I.;3. in lfre County of NIAGARA, New Yofk FAILS Sf NIAGARA F ..-: 1951 "' RLA}{ TYON S}lErg :. :-l OEEENSE POSS CON? SUBST ULAJS TrlE DEFEI{DANT(S) DID VIOLATE NEW YORK STATE PENAL I{AW SECIION s PL 220'16-1 IJ rbLoNY S pL 220.1-6 Subdivision 1 - Criminal possession of a eontrolled-substance lrr,tir" third degree. A person i5-guiliy of crimiaatr possession of a ',4sg5ss v/fien--*ri-. knowj4g!ry;and-un1-g4$$ty*"';-- '+=- controlled subsf anc+-in--the- fhi$f pbssesses a narcotic. drug with intent to sell it. . ,,-,* WIT: Ihat on the above date and time while at 195i iifil Street-';pi t1the abowe named defep.Cant was knowinglyy'unlawfull'y in possession of an off white chunk l-ike Sutstance. j;aid substance was.field tested and weighed by Det. Giaguinto thus having posilive results for the presence of cocaine, a narcotic drug and weighing approx. 4.1 grams. Said amount is consist:*ith an amount for the purpose to sel-] and not for personal use' TO Prepa=eC By This complaint is based on pefsonal knowledge and information and belief, thd source being, J. REYNoL;:i / J. GfAQUINIO Ani; false state$rents rnede hereili are pur:ishar:1e as a Class A Mlscierp'eanor { .l (7e I ,l Subscribed and sworn this 26 day of / to before me L. ,'-' - :----;---=< ue+*ffiE5z{,,e1* DE?ECT:VE CAPT 14 (z- Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 31 of 63 -D.D. No.....-.: EELONY COilPIANXT Cas e RePort No:Pgr-19475-1; Police Serial Nd: Appearance Ticket: Arrest Number- . . . :NF-04354-11 Defendant in Custody from: 01:00 NowanLer 26, ZOL]to Blotter/CC No. :l{l'-o462A 4-LL Return Date. . . I Ll/28/zOtL Court Docket No.: NIAGAII"A FAI.LS CTTY COURT 1925 l"re,iN SfREEl, NIAGARA 5'Ai,i.S, IYS i4305 Rr.alr tYoN D.O.B.: (1) 04/]-3/t982 \ sMrrH (29) 195L rArl,s STREET rqraeena FAILS, NY : 14305 'ss STATE OF NEW YORK .COUTqrI OE.}IIAGARA DEf JAMES T REfNoLDS, Shield 17045, being.;dg1y swoEn, deposes and says that .he ls i.member of Ihe.NIAGARA EALLS POIICE DEPT; County oi NtAGene, uew. York and that.on the 26 day of Novembex, 20!!, 1at about OAM at 1951 FALIS ' 'ST NIAGARA FAILS in the County of NIAGARA, New York. "'1 .' , - : OFFENSE POSS CONT SUBST CLASS RIEN EEON S}frE}I ' 4 :i' THE DEFENDAN?(S) DID VIOLATENEW YORK STATE,PENAL tAW SECTION S PL 220.09.1 C TELONY S PI:t 220.09'subdivision l- - Criruingl possession iof:a-eonttolled substance in.tshe fourth degree.- A-person is guilt.y. of criminal-possession of a..+sosrfiolled;ngEst"ancrtll$g;;fburth $gg-gd-e- wHen;:hg:#no-vlingly:ls*iml awfuJ.ly more piepiiations, compounds,. mixEures. or substances a narcotlc drug,.and said pibparationsrj coifoounds?-.mixtutes or "ionlaining *-iubEtanies'aie-of 'an aggr€tbetJ weighl of one-eighth ounce or ruoie. ..''.:..,.,.,, WII:, That on the above date and time the above named..defendant was knowingly,/unlawfully in possession of. an off white chunk"Iike subslance. Said"Substance was field tesEed and weighed by Det. GiaiTuinto thus having positive lesults for the presence of cocaine, a'narcotic drug arid weighing approx. 4.1 grb.ms, .which is an aggregrated weight of one*eighth ounce. TO l Prepared By DE? J REYiJOLDS This complai-nt is based on personal knowJ-edgg and informatioo and belief, the source being, ,r. GIAoufli'lo / J. REYNoLDS Any false stateneats m.ade herein are punishable as a Ciaes A Misdemeanor rsuant to Section 2LA.45 rx the Penal Law' t .t Subscribed and sworn to before this 26 day of November, 20 me /v6< iffil4&ocx.671/W'-) :DETECTIVE CAPT-..., Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 32 of 63 ATTACH TO ACCUS ATORYINSTRUMENT (City) (rown) (Vittaee) of Niaqp l3lll Court Docket No r146204 DISTRICT ATTORNEY PEOPLE OF THE STATE OF NEW YORK .VS. OFMAGAMCOUNTY DEFENDANT Rian T. Smith (04/13/1982) NOTICE TO DEFENDANT OF INTENTI0N To oFFEREVIDENCE . TI{E PEOPLE intend to offer I. . u x Ef TRIEI . Sections 710.30 CPL and 700.70 CPL at : ... triai: STATEMENTS BY DEFENDANT: Evidencc of a statement made by the Defendant to a Public Servant engagedin iaw enforcement activiry or to a person then acting under his direction or in cooperation with him. : [. Written Statement (attacih copy) 2. Oral Statement (Soecifr: date. place. content and to whom made) On ll/2612011 at ipiroximateli'0050 hotus, the above defendint did spontaneousl state that he had ielapsed and that he had and lt was IDF''.NTIFICATION OF DEFENDANT: Testimony identiSing the Defendant as a pel.on who cornmitted the offense charged by witnesses who have identified him/her as suqh prior to-a.."st/tri"l. Specifically: I . Confrontation at or'near Crime ScenelHospital Date t] l 2. Photograph "-'Date m. n Identification ti. J. Llne- Up Place Daisr ---: r-l I I llace ;. 4. Okervation of Defe,ndant upon some other occasion relevant to case Place Date 'E.q.VESOnOPPING WARRANT: Contents of an intercepted communication or evidence derived therefrom. L Eavesdropping Warrant andaccompanying Apptication for Eavesdropping Warrant (attach copies of both) Arresting Agency: Niagara Falls Police Depa*mett Arresting Officers: (names) Re)molds i Giaquinto gr11 Narcotics FOR COI'RT US3 Arraigning Court: served on (date) Defer dant/Attorcey(n ame) By:(names) DA#l1 ::::: -'-_.,--- . -- .+1-::: ;t.-.j. i-+-jir-,'-:* r.i:: Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 33 of 63 EXHIBIT E TRANSGRIPTS OF NIAGARA FAI-LS S, ':l -il clw coURT DATED: FEBRUARY 2,2otz Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 34 of 63 n /1 Z STATE OT NEW YORK NIAGARA EAILS CITY COURT J ,A a PEOPTE OF THE STATE OE' NEW YORK t.. vs. 5 , ..6 RIAN T. Docket No" 11-03620 SMITH Defendant 7 8 g 7925 Mai,n Street February LL Befor 2, 20j.2 €: 1".2 r-i: HONORABT,E ANGELO City Court Judge 1-3 1"4 New york Niagara'FaIIs, 10 A P P E A R'}, N CE S: L]. MORINELLO . ,' 15 JAI{ES JOHN FASO, JR., L5 ESQ. Appeari g on behalf of the Defendant L7 l-8 19 Pregent: Rian T. Smith ORIGII{AL FII.ED Defendant JUN 20 I B 2013 WAYffiF.JAGOW 2L MAGANA 22 23 24 25 Christine f. Garrett Court Reporter SUI{ff CTERI( v Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 35 of 63 l 1 THE CLERK: Rian Smith, Docket 11-03520. 2 THE COURT: This is 3 MR. EASO: Good morning, Judge. .. 6 1 for a preliminary hearing. 4 5 schedul-ed THE COURT: Why is'this : scheduted for prellminary hearing on a Thursday morning? MR. FASO: That,s a gbod question, Judge. I 8 9 10 1l- ,,: MR. FASO; No, ,Judge . No-. He . 's in on a parole t2 13 THE COURT: That,s why the 180.g0. you 14 reserved your rights for j.80.g0. 15 MR. FASO: yes, Judge. yes. What we,d 1ike to do, ,Judge, and what Mr. smith is asking the court, and r 16 ,!7 18 19 2A 2L 22 23 24 )tr, know, .Iudge, it's a rittle earry on in this, he,d like to ., be screened fqr the diversion prog.ram. whatever he needs to do today to begin that we'd like to -THE couRT: welr, r think'what we shourd do is this. Until .we have a plea, and hers requested it formally through the plear we can,t do anything. so what he might be able to do is ask for drug court t.oday. r schedule a screen and then once we are -- we have the can arraignment, we can then make the request at that point, Christine f. Garrett Court Reporter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 36 of 63 V 'i 7 because you've got to be -- you,ve got to make your Z EASO: Yes, 3 MR. 4 THE COURT: ,-Tudge . Canft be prearraignment. .. 5 6 currently being hel-d on a parole d.etainer, Judge, until 7 8 'THE COURT: ':Okay. Then are you requesting a g 10 '1 1 -Lt t2 13 'MR. FASO.: Yes, .]udge. t COURI: Drug sereen will be fbbruary 3rd. Drug court will be Feb.ruaiy 9th. NOwi at thts point do you want to waive your right to a preliminary hearing and THE L4 1tr IJ L6 t7 18 19 20 21" 22 23 24 25 EASO: Yes, Judger w€'d like to do that. THE COURT: 'Waive preliminary hearing. MR. FASO: And, ,Iudge, if you can give us the Court's available sometime close to March 16th or THE COURT: f was thinking of March 22nd MR. if so. FASO: That's ferfect, ,Judge. Thank you. THE COURT: March 22nc) for an SCI plea. And we can at least get him pre-started. Mr. Smith, if you had asked for this when you first were in front of me about MR. five years ago maybe you wouldn't be here today MR. SMITH: Probably right, Mr. Morinello. Christine f. Garrett Court Reporter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 37 of 63 1 THE COURT: 2 MR. FASO: '3 THE COURT: Have Okay. a seat, Thanks, Judge. You t re welcome. 4 5 6 7 I 9 10 This ls to certify that the foregoing is a correct transcript.io.n..iof . the proceedings reiorded by'me in this matter. , 11 L2 13 CHRISTINE L4 I. GARRETT Court Reporter 15 16 L7 r_8 79 20 2L 22 23 24 25 Christine I. Garrett Court Reporter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 38 of 63 I EXHIBIT F TRANSCRIPTS oF NIAGARA FALLS ctTy couRT DATED: MARCH 22, zo1z WHERE DEFENSE COUNSEL GOERCED MR. SI'ITH INTO STGNING n wlrvefor TNDICTMENT PURSUANT TO CpL S 195.10 AND CpL S 195.20 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 39 of 63 NIAGARA FALLS CITY COURT TRANSCRIPTS, DATED: MARCH 22,2A12, PAGES; 2-G , -t - " ' Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 40 of 63 THE 1 2 CLERK: Rian Smith, Docket 20LZ-099, scheduled for arraignment 3 MR. FASO: Good morning, again, Judge 4 THE COURT: ,Good . MR. FASO: Judge, we don't have a plea thatrs been quite worked out y-et. we do, however, know that.Mr. Smith wants to participate in the 2L6.program, ,lrdg". l: tr 6 l THE o ' 9 10 11 L2 He 15 li1 MR. FASO:. He also, ,Iudge, had a parole detainer, which has'now lifted as of last Monday and that may have also been a problem with drug court. (Discussion held off the record. THE ) CLERK: This is what she told morning. He has to be represented on that. felony is reduced -rHE 20 27 .: for drug court, Judge. .He couldn't go,.into drug court until.we arraigned him on the County Court''-- 11 L9 COURT: Will we be arraigning him today? THE CLERK.: -He was screened Ib 18 , hasntt been screened ygt, 13 L4 morning COURT OFFICER: ,.Tudge, me this If the do you want me to try to get her into here? COURT: Yeah, have her come in. 22 THE 23 Mr. E'aso, couid you approach for a second, 24 25 please? (Discussion held off the record. Christine I. Garrett Court Reporter E ) Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 41 of 63 THE 3 THE COURT 4 THE Mr. Andrews :- is Mr. Andrews in COURT: COURT: 1 2 the room? 5 somebody b OFFICER: No, he t s not, ,,Tudge. Werre going to recall this. to sign the Superior Court Informati-on, I need Paso MR. 7 Mr. That's f ine, ,Judge. Thank you. FASO: o THE COURT: 9 MR. FASO: . 10 ,. ?HE CI.ERK: I just .-, way. 13 (Whereupon, 14 THE CIERK: . him. He,s on his ,r, further proceedings were treiA. ) Reca111ng Rian Smith, Docket THE. COURT: Mr. Andreivs, I need for you to l7 sign. Now, itrs 1B ar:raign on the scl and make that we are going to a formal request for the zL6. my understanding MR. ANDREWS: That,s my understanding, Judge, 19 however (Discussion held off the record. , ZL ZZ THE 23 right 24 Rf AN 25 spoke with 20]-2-A89. 16 20 Mr. :, . 15 tlI .go down and.get Andrews. 11 12 ,Judger' f ) COURT: Mr. Smith, would you raise your hand? S M I T H, having been duly sworn, testified as fol lows : Chrlstine f, Garrett Court Reporter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 42 of 63 MR: 1 SMITH: I COURT: Mr. Faso, I'm going to hand you waiver of rndictment and ask if yourd review that with THE 2 3 q rndictment and ask if that .Ls your signature on the rine 6 7 ,above defendant? I " 9 10 11 72 13 l4 15 16 l7 18 19 2L 22 23 24 25 up your client and have him sign in the appropriate places. _rr. Mr. Smith, I'm going to show you Waiver of 4 2A do. : MR. SMfTH: yesr your TrtrE COURT: Did you just sign this Honor. court th-is morning?. r_n open I : l l SMITH: yes, f did, your Honor. .. THE COURT: Sir;. do you'urrderstand that you have a right to be prosecuted by a regalry sufficient indictment? what that means, sir, is you have a right to have the people present this matter to a Grand Jury. you can sit. in and listen to the testimony being given. you, thereafter, wourd have a right to testify if you want. Thereafter, the grand, jurors wourd vote as to whether to indict you or not. Do you underst.and that? MR. MR. SMITH: yes. COURT: you can also waive the right to be prosecuted by a regarry sufficient indictment and proceed by superior court rnformation, which is what we are here THE for today. Do you understand that ? ! MR. SMITH: yes, your Honor. Christine I. Garrett Court Reporter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 43 of 63 1 2 THE MR. 5 6 SMITH: Brief1y. Have you discussed this with your attorney? ? 4 COURT: COURT: A1I riqh,,t. But do you have any questions as to what this means, wai-ving your right t.o THE be prosecuted MR . FASO: He understands, ,Iudge . , THE 8 9 10 1t_ t2 yes COURT: you understand-? Sir, is that .: ? i'. 4. . a :_ MR. SMITH: yes. yes, your Honor. THE COURT:.. no you walve your right to ? be prosecuted by a lega1Iy sufficient indictment? 13 1,4 1_5 16 1-7 1B 19 2A satisfied the wai-ver compries with the provisions of 195-10 and ]-g5-20 of the criminar procedure Law. By Superior Court Information 2Ol2-OBg, your client, Mr' smith, is accused of having committed the crime of criminal possession of a contro]led substance in the Third Degree in violation of sectlon 2za.L6-r. of the 2! Penal Law of the State of New york, class B felony. Waive 22 a formal arraignment, enter a not guilty plea? MR. FASO: yes, your Honor. Thank you. 23 24 25 COURT: Now, Mr. Smith, it's my undersLanding that you are requesting to be screened for THE Christi:re I. Garrett Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 44 of 63 7 a 4 3 .4 5 6 the 216 diversion program, is that correct? MR. SMITH: yes COURT: Do you understand, sir, ,that depending on what that result is it wirl be -- that will_ determine whether you're eliglble for the program or not, THE , do you understand that? . 7 ,., 8 9 Yo, will have to sign waivers.,to rerease the information to your attorney, the district attorney and to the.court? ,: MR. SMITH: yes . : ,1 10 11 1_2 13 L4 COURT: r wilr- grant his request. loe will _. do a -- so ilm going to schedule this for Aprir the 5th at two o'clock THE 15 MR. FASO: ifudge, can f have a different day 16 than that? 1-1 COURT: Sure. Aren't you on that afternoon or are you away? No, f rm sorry. yourre away. f 18 19 20 2L 22 THE apol0gize. rrm sorry, Mr. Faso, r didn't 100k. what r was trying to do is give you a date sooner than May, but it l-ooks like we can't do thls untir- May 3rd. May 3rd, SCI plea. 23 MR. 24 THE COURT: 25 MR. FASO: FASO: Judge, can f be heard on bail? Yes We - had -- Mr. Smith tel1s me, I Christine f. Garrett Court Reporter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 45 of 63 STATE OF'NEWY.!![ : COUNTy OF NTAGARA NIAGARA COUilTY COURT THE PEOPLE OF THE STATE OF NEW YORK tfs RIAN T. .: $UPERIOR COURT INFORMATION SMrH SCtNo. Z0t2-0Bo Defendant. , cot lfr ! l' MI0HAELJ' VIoLANTE ihe Dietir:tAttomeyof , NiagaraCounty, Nenryo6q bythis supoior Goud lnbnnation, do heleby asuss ffre defendant, RIAN T. sMlrH, with having committed tha cfime of crlminal Possession of e contrrolled substancE in the Third ,: DqgGe, in vlolation of $220.18(1) of the Penal Lawof the Stete of Nenr york, a clars B. The defendant, on'or about Norrember fr, zo11,in Nlagara *r,r, *orringly and unlaufully posessed a narcoth drug with inten.tto eell it, that b: the dofendanl pooeessed cocaine with intentb sellit. Dated:illarch Z2,ZO1Z k h,aJ, n&4 st :8 !fi tz uilt Il0I Jlr[04r0 s'nvi $.rw$h, 01,\BC3ti */ Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 46 of 63 TRANSCRIPTS OF NIAGARA FALLS CITY COURT DATED: [,TAY 3, mlzwHERE DEFENSE GOUNSEL DIRECTED COERCED AND ADVISED MR SMITH INTO SIGNING A WAIVER OF: APPEAL AND POST-.,UDGMENT REVIEW RIGHTS, AND A JUD|CTAL D|VERS|ON CONTRACT (DRUG COURT) Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 47 of 63 NIAGARA FALLS CITY COURT TRANSCRIPTS, DATED: MAY 3,2012, PAGES; 2;11 Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 48 of 63 PEOPf,E Of TEE SEATE OF NEII YORK -vEl- RIAI{ Sb.{:nJ!EE -) ,L 1 ' 2 .'i scheduled for SCI p1ea. ,., THE COURT: 3 . Mr. Fasoi good morning. r,, , 4 t.... 5 6 7 .-- *" may need to walt for Mr. Andrews to ;et back into: the courtroom, .fuOge. Therets,a plea thaL,s been , extended. I{e!s been screened for diversion. ; i .believe Mr.. I :' : I , ' : 'i : -l' rHE COURT: He is e1igiQ1e. We havc his 10 contiactj prepare.d. L1- have his interim probpt-ion : docqnents 'prepared, We .: : 1_2 .i 13 , ,'MR. FASO: 'We'd be reaO/ to go tod;,:"1r,..lTudger ds soon as Mr.- Andrews g€ts back. l4 THE COURT: Okay. Mr. Smith, I dicl gbt a 18 1etterfromyouaskingmet'og'iveyouadiffer attorney. You're not getting a different attorney. .: MR. SMITH: f was just upset, ,Your Honor. THE COURT: I figured 'that. Okay. Listen, 19 you're going through a tough time. .I 20 withdrawal, okay? This is.your chance, aII right?, And f remember. you were before me on that dog case, okay? 15 16 ,1-7 2L rrn sure yorilre having some 22 ,,.*..''l t-"' :' 1 23 . i. I ,'' , i THE COURT: Remember where you and your friend 24 had that major sltuation, okay? That should have been 25 red flag to you, the violence you showed on that li Christine I. Garrett Cc:ur t Repclrter dog, a Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 49 of 63 P,EO:I,E OF TEE STATE OF NEf, YORK L 2 -vE- RfAI{ $(ITE okay?Butwe'reg1vj.ngyouthischance.Wewantyouto think about it because, if not, you're subject t.o going to prison for up to nine years. ; 3 , 5 6 .1 I .9 10 11 : Judge,.it might be twelve. He's MR. FASO: 4 a second felony o-ffender. , t::. IHE,COURT: 'second felony offender, okay. 1 first. I.thought the ot.her was a yO. So it ',, could be u[ to twelve. we wil.] go through.-that .]ater. sa , , ,:i. whatweIre.te11ingyouisthis.fhatthec.hanceweire '1 had hr-m as'a givi'ng yortr you should use wisely Heeauser.-yoll.knowr. youtre a prettylsmart indivldual. youtre not a,dqmmyr. T2 :, okay.?;Yourrea.ver].smartindividuL1.You.understand 13 wtrat's happening, you know the Court system'and you don't 1,4 wanttospenda1qt.oftimeinjaiI,do.you?' : 15 THE,COURT: So with that being saidn we,rg 16 L7 going to reca11 this:and,we ean go through with it. 18 I'm glad yoir're takj.ng this' opportunlty to try and improve j yourself, Mr. Smith. 19 : And , 20 MR. SMITH: Thank you. 2t (Discussion held off the record. ) 22 THE CLERK: Recalling Rian Smith. 23 THE COURT: Mr. Smith, would you raise your 24 right hand, please? 25 RI AN , I S M I T H, having been duly sworn, testlfied as Christine f. Garrett Court Reporter . j Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 50 of 63 EEOPLE 1_ Or TEE STArE OE IIEII roBs -yEr- RIAI-I SMIrE follows: 2 THn COURT: Thank 3 4 q 6 , 7. I . . 9' .: 10' : L7 12 not guilty plea wa-s ,: yoI. On March '! entered on 22A.L.6, B felony, criminal' of a contiol]ed substance. to the not g.uilFy pfea and being duly sworn,'. Mr. Smith did, in fact, request consi,.deration for .the 216 .diversion program. . Ur. Smith was, thereafter, intervj-ew6d. He admitted ,his ' use of e-Iicit substances. He adrrlitted a his.tory of ;;--'.'-: possession Subsequent ' : substance abuse andior treatment. iAqd he.al.so admiLted . :'.' '.,.' that the elicit substance has been a'.contributing factor to his criminal behavior, therefor"; ,irOiciat diversion : #.- .l' 13 22, 2AL2, a .wou1deffective1yaddresshissentencingandissues.I 1s find that he is erigible. r am familiar wlth his history, as I had stated earlier in the proceeding. He reports 16 that.hrs nrimary drug i-s cocaine and-'.it 1,7 twenty-6ns, progressed to daily use at approxirnately L8 hund.red 19 on 1L/26/2OLL. He did have a lawyer 1"4 dollars a day. begranlwhen he was a He last used cocaine purportedly for that. 'Mr. Smith ,is duly sworn. f fm going to hand up to you,,Mr. pasot Walver of Indictment, Waiver of Right to Appeal. tr'1I aSk . 20 27 ,. , 22 23 24 previous1ydiscussedapIeatotheso1ecountofthe 25 Superior Court information, that being a criminal Christine I. Garrett Cou::t Reporter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 51 of 63 PEOPLE OF TEE ST}TE OF NEW YORr 1 ) : 3 '4 -V!'- RIA}I SMrtrE of a controlred substancg in t.hel Third rDegree; After further dlscussions with Mr. paso, the plea otterl.. ' has changred to t.hat of a criminial possession of a controlled sybstancg in the Fi,fth Degre6:pursuant to ' 22a:'a6, subdivislon five, a cljss D felony. r trao : prcjvided the court, this morning, with an . amended waiver of.Right to Appeal to refleet that. That'wouidrb". , . ,, possessioa . ,.! . ' 5 ' 6, 't. :1 1. I 9 . 10, ,, conditioned upon the defendant. signing that wa:i.ver of .: Right to Appeal, also admitting..r,i, statrjs'as a second ' {e'ony offender'pursuant to 421. dno r have provided the Courtw1ththatdocumentationasweII. : 11 tz .13 t4 All right rvrg Andrews; 'sg t,hat what.was originally presented to the Cou.rt, the 220.1,61 criminal possession of a controitea s,ubstance, is not 'what, TitE COURT: 15 76 17 18 19 2o 2L 22 23 24 25 THE COURT: AIJ- right . Ifhat , s the p.lea golng to be to? MR. ANDREWS: 220.06,: criininal possesgi.on bf a controlled substance in the Fifth Degree, class D felony. And r apologize, ,Judge, that further discussions this morni-ng facilitated the change in the prea offer. certainly, if we wourd have known that prior to this :,. morning, we would have notified the Court. THE COURT' i *a on that he can.do Christine I. Garrett Court Reporter anywhere from #ryai.r'-':"" Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 52 of 63 -Vsl- RIA}I PEOPI,E OT AHE STATE OF NETI YOEK 1_ SMITE one to twelve lrearsf 2 MR. FASO: J MR. ANDREWS: MR. FASO: Twelve. Thatfs the toP end. + On On the', B it ,rould' be twelve, Judge. 5 ' , THE b ':; "7 t'. I that ,it ts fout ":9 to. 10 11 You ..have 12 13 the ' ehart toaB L4 : i.5 felony? .. t6 : MR., n L7 18 19 2A 2L FASO; .*or..Judge, , A..D felony. rtnm - ' nL the SCI is, to -- the count j-s to a D felony. And originally we had told the Court that, the offer would bg to the B'felony, THE COURT: Right. That's how we prepared aII: .-.: . MR. ANDREWS: 'Judge, 22 23 24 FASO: Yes, Judge. THE COURT: Itls okay. MR. 'l 25 MR. FASO: We apologize. : iWith the arresting officers Christine I. Garrett Court RePorter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 53 of 63 PEOPT.E a( Of TEE SrAfE Or NEW YORK -Ys- RIAI{ S!fifg THE 1- COURT: I have to get.it straight se we car 2 prepare the correbt documents. So 3 p1eadingtothe,Dfe1ony,220.oe,cr1minaIpo$session'.' : 5: : going to be , .,..., . ,.;: A D with a prior nonviolent, controlled substance, Fifth. 4 he t s so itfs one and a half to four? . Iionor. MR. ANIDREWS: , Yes, Your b : 7. ' '.: .:THE,couRTiAndthat-'sabeterminate.,. 8 : ,. 10 13 plus .. COURT: ? One..and. L6 : a.haIf to .iour years ., '' .t , . .. :ir' ... S' MR. FASO: I think.it's THE COURT:' One 15 :. . THE 11- L2 r se.nEence ' ., . two years. . to 'two years ,:post, release . Just so the Court understands, should he successfully complete the program, he'1l be allowed to'-- this plea 18 will be withdrawn, It will be dismissed. And by' prosecutor's information, he will b-e charged with a 19 criminal possession .controtrled substancer,Sevent.h 20 and allowed to plead to that, is that correct? L7 2L MR. ANDREWS: Begree, Thatis correct, Your Honor 22 23 MR. EASO: Correct, .ludge 24 THE COURT: 25 MR. FASOT And that's our understanding, , Thls way I can explain it all. Christine I. Garrett Court Reporter .I,udge, Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 54 of 63 PEOPLE oF rEE srATE oE NE![ yoRK -vs- RrA]r sldrrE THE 1 COURT: Okay. previous to today,s date, of rndictment was explalned and" :signed on ltarch 2i, 2a12- And at that time ls when ir"e proceeded to arraigo. .'. him on that c\argel We.are now here for purposes of entering a plea. Before f can do Lhat, Mr. Smith, f rm waj-ver 2 2 J . .t. 4 5 6 goingtoshow].oupagetwoofIrIaiverofni.gh!.toAppgar. 7 and Postjudgment Review'Right.s and ask if that is your ; . , si.gnatur,e.onthe1ineabovedefendant?,. 8 9 10 . THE .QOURT: Did you siqd that in open court LL *: t.' , r,'. .' SMfTH: yes, y.eur Honor. THE GOUR.T, I A11 right. Mr. smith, do you understand. that'- you're giving up your right tol have'a .12 MR.. , 1.3 . t4 higher court .review what occurred in. thls matter? I4R. ,SMITH: yes, your Honor. 15 15 mtrl rnE COURT: Except for constitutional spegdy issues, competency matters o" ,ny irlegal sentence r L7 18 19 20 21 22 23 24 )q tnal .might impose. other than those three.issuesr fourre giving, up your right to appea.l? ' . MR. SMITH: yes, 'your Honor. . .. ' THE COURT: Okay. youtre also giving up your right to ask for rel-ief an appeal could accomplish by .' or a coram nobis, a criminal procedure Law 330 _ ___r t_ motion or a Criminal procedure Law 440 motlon. means Christine f. Garrett -uurt RePorter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 55 of 63 'l PEOPLF OA TEE SIAEE OF NEI$ yOnK a . MR. SMITH: that? Yes, Yoqr Honor. - . : r, THE Your attorney has.explained this THE 2 "3 4 5 Sl,tITE Yes, Your Honor. MR. SMITH: 1 -vE- RIAII , You understand COURT: COURT: , : i ,:,r t.o you? '6 I 7 I : THE COURT: Ttls youl3 intent'i that this plea ris,, to.enda}11itigat.iqnoqthismatter--'.:'i 9 1-0 11 .. L2. .t 13 1.4 15 L6 L7 18 19 20 . . MR. SMITH: Yes, You:i Hogo1,; ,r ,. THE COURT: i Ilm redacting .. .: . number seVen. Thet shall not'be pait of this. Now, ,ygu're,not giving up your. rights to anything. that has -- that occurs'after todayrs daLe. ,If. something were to occur after ,today's date, you Can't give up your right'to something that is in the fuiure. Do you:understand that? , SMITH: Yes, Your Honor. THE COURT: So yourre giving up you.r right MR. to . 2L 22 MR. SMITH: Yes, Your Honor 23 THE COURT: A1so, by case Iaw, the State of New 24 York has stated that" there are certain rights you cannot 25 ever give up and those rights will always. be protected. Christine I. Garrett Court RePorter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 56 of 63 PEOPLE OF TEE SEA:TE OF NEW YOR'K -Vg- RIA}T SMITE Do y.ou lrnderstand that? 1 MR. SMITH: I Yes, Your 2 3 THE COURT: Honor. ',, S'ir, I find that the waiver ,'. . r..' : Okay. 4 is, knowingly signed, that 5 any ques.tions? 'v€ €Xplai$ed it. we Do ygu have 5 .,., TIIE COUBT: Okay. ', 1'.*.:aLso gqlng to adjustl the .:. .' fi.qst page of the waiver tha! was .submi,tted. thls ,mgrninE.'. '' Be.ar with me.., No, it is .correct'.,' crimlnil,poslsessi-on in '..: 7 I 9 :l 10 : the rifth Ddgreer -so everythi-ng isicoffiect on. that. Now, . before we,-can .qro .any further, by inforrnation under:Se.ction ': . 11- \2 1-3 L4 15 L6 : . :-.i : : ;.,' -'' ' ,: .. ,: 421 of the Crj-ininal" Proce.dure Lawr. 1t is alleged that ,you have a prior, ferony conviction to the count of -- that you were convicted of an attempted criminal'possession. of a ' controlled substance in the Fifth Degree, a class E .. fel'ony, i-n violation of New york.State penal ,Law Section 1n LI 220.05, subdivision fiver on or about ,January z6t1, 1B in the county of Nlagara and state of New york. Do you desireahearingordoyouwaiveyourrighttoahearing, and admit .to a prior felony? . MR. SMITH: I admit L9 20 2L 22 ZJ 2005 .1 COURT: I find that the Cbunty Court of Niagara havlng caused said. Rian smith to be brought before THE t- 24 25 the court, he then and there having been informed by said court of the alregations contained in the foregoing Christine I. Garrett Court Reporter Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 57 of 63 PEOPLE OF rEE STATE Or LIEr{ YOBr -v8- RIAN S$rrE 11 2 information, and of his or her rights pursuant to Section 421, of the Crimlnal Procedure Law, and that's 400.,21, the 3 Court having inquired of said defendant wh-ether he is 1 i'j 't,he 7 in the .infbr-rnationr defendant did say he was the same person, waiv-ed his right to a hearing. I find that he has.q prior felony convibtibn,that now ''. mandates a second felony conviclion-.sent'ence.'on his B current charEes. same 4 q 6 person charged r: Now, .there has been .considqrable , 9 ..,.. discusbion this morning regardi-ng*wtiat .d p1,ea offer would .: 10 13 belto this defendantr'and itf s my. rlnderstanding, 'Mro '' _ : ,'. : '. Smithr'.that you Oo .intend to, awai] .yourself of the reduced .,.:. charge, for.ptea purposes' .of, 220.06, criminal .possessi-on 4:' of al controlled substance in the rifth Degreei .is that !4 correct? 15 SMITH: Yes, Your Honor. .. : THE COURT: Before I c3n be satisfied of taking your p1ea, f 'rnust know that you fully understand what is . ,: occuiring here and rr,.rhaL rights you are giving up. 11 L2 16 17' l-8 ' : !j. l: MR. . 19 THE 20 COURTI Give me your full namer address and ., 2L 22 23 age. MR. SMITHI Rian T, Smith. Address, " C1eve].andAvenue,NiagaraFa1Is,NewYork,Agethirty. 835 .'' 24 2'5 THE COURf: ' Can you read and Christine I. Garrett Court B.eporter write the English ' Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 58 of 63 STATE OF NEW YORK COUNTY COURT COUNTY OF NIAGARA : THE PEOPLE OF THE ST,qTE OF NEW YORK WAIVER OF APPEAL AND POST-JUDGMENT REVIEW RIGHTS V. D.A. CASE FILE NO. 2012-489 RIAN T. SMITH Defendant. tvqttt l,RlAI{T.SMlTH,thedefendantnamedabove,havingconferredwithmy ttc t attorney, James J. Faso, Esq., do hereby knowingly, intelligentlyand voluntarily state +l^ r^[^..,1^^. ine roilowing: -., 1. , :..:s I have been charged by Super,ior Court lnformation with the crime(s) of: Criminal Possession of a Controlle.d Sr:bstance in the Third Degree in violation of Penal .:]j:.:.--.-.,-:.,-l.,...,..-::::-::::-.,.-'.1. -"..,:perio-dofpost-releasesupervisio1ofuptotwoyearS....:j j . .: : ,:* 2. '.. +--,1.' - :. :-..--...r .,: . ,: ,,- -.:.=_...;.-..:..:.- .. The People have offered me the opportunity to plead to: .,.- -rr-. .-'''., .- Criminal Possession of Controlled Substance in the Fifth Degree in yiolation of Penal of the :.:::":::*::l:']::::satisfaction ".'"*" against me rhere is no promise regarding my sentence. 3. 4. I am accepting the plea. As part of the plea agreement, I hereby waive my rights to appeal, including without limitation any possible claim that the Court's decisions up to this point were in error, any pretrial suppression motions that I may have had, and any possible clairn that the sentence imposed by the Court is harsh and excessive (even if the : . Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 59 of 63 maximum legal sentence is imposed). 5. Additionally, I am waiving my rights to appeal any resolved or undecided legal issue with the exception of the following: (1) (3) 6, Constitutional speedy trial issues; An illegql sentence, if imposed by the Court , , ,, ' Finally, l. am also waiving my rights to seek a reView of these sarne issues by means of Coram Nobis, CPL 330 motion or CPL 440 motion. This plea is intended \ , 7. z may subject ryp to Federal' ing that this ra\/leor"y and V/ o"portation firt am p,(ano not a United c/ \'/ $$ ^arGnr{e^':::l qE$Ud. of Post $B; ' . offendef :2K. ), tha! five years, a (if I am and voluntarily,;:after having consulted with my I be subject to rnay be subject to the ,/ to a sexual offense)- attorney. . r 1 Signed: Date Witness: rlslr- Date - Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 60 of 63 COI.'NTY COURT OF THE STATE OF NEW YORK COUNTY OFMAGARA TI{E PEOPLE OF THE STATE OF NEW - against - RIA}I Sb{ITFS YORK : : ilE4- JUIIICIAL COMRACT SCINo.:2012-089 fte c.i{ gf{iaeara - DTVERSTON ttrg-Niagara county falls,pyug 9o*r nanred defendaot acknowledge that the defendLt h^ ;dd Niagara County Court. Disticr Attorney and the aboveg,rtrty to ,t, air.*il#;:b ,, AGREED SENXENCE PrEA OF G[rrLTY ro: PL220.06-DF'elonv : Crfuninal Possession of a Contolled Sgbstanoq Sth IJPON SUCCESSFUL @MPI.EUAN Dismissal,ofCharee AGREED SENTENCE LIPONREMO';;.-- +@Gffi, l.-t{? _ And 4 rrcars State prison postlelease- 'l Will be allowed to plead to an A Misderreanor - 220.03 Criminal Possession Controlled . .1 upon removal from treatnrent, defendant could serve up to four (4) years in state prison plrts one to two (2) yean post release supcrvision (l) Defendant: By signrng this contract an{apraeeing to enter a drug treatmertFogram, understand aud agree to the followin!: ' 2' 3' 4' l I I acknowledge that I have a substance abuse problem and recogni z* thntl nced help to teat this disease. I have reviewed the Drug Court Participant Handbook and will follow the rules and procedures set forth thcrein. I will enter and rernain in a drug treatment program and Iead a law abiding life until the successful completion of my Treatment Courtl4andate. I agee that in the event thail commi uoy i"t"iioitrior violation(s) of Drug court rules that would result in a sanction, as outlined in the nrui court participant Manual, the Court rnay immediately make necefsarl jh-g"l i";;, tuearmentplan and *"y i*poge sanctions that wiII result in revocation ormy [ail or *1"*" status and result in my incarceration. I also understand that any iot"r-.J.t j.il sanction o, *lo, or3*r salgtions may not exceed the maximumpenaltyfoitti with which ' originally charged. ralso knowingry ana nom"tarily "a*", rights;;;;I was my CPL $$170'70 and 30-30(2) should tle Court,*rok my bail or r]r"o"rtu*. as part of a *"i* rn !w ' Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 61 of 63 I !l" sanction for infractions to program nrles. This waiver of my statutory rights will remain fo1* long.as.I j, to parriqipate in rhe pmg Lorrt oiu.*ion program. I understand that if I violate the tsrms of this contact ru to nrork dirigentiy towards the. goals of this prograrn' that rny csse may be refurned for pmsecution eiutside frus lourt aad ] ryreg that there is no righl to appeal to *y oa., cor.ur a judicia} determination of dismissal from the Duj co,rt-Iiiversion itogram. I understand that if I abscond aom nv issucs a wanrint for my arrest and I am brought back to courtinvoluniarifj, Uy'f.* rfri, may:esult T Py immcdiate tercrination fr- op the Dnrgnil Diversion prograo-. I understand that any new arrest may result in immediltctermination fiom my tre*krent -. and tbe Drug Court fogram I undersund that if I iucgesrsfuuy comnteteiny court Mandate, the felony.clurgee egainst me are dismissed *d guilty to theierony(ir*l i, vulr.a, that I --l wil statrd t{.u f. :*ri"* *Joi tlrrerrt;;d;;il-Co'rt *f"#;i..rilLr, 7. 8. Diversion.progftrm. tu-*iof convicted ofthe Class A Misdemlan*, p"rit f*."oy,'oJy. authorized to qppear on behalf of the attorney or tr.gr4 roi tt u above-named defendant aod that I have explained ttre'!1fenla11's-stat,tory and constitutlond Jghts affected uY this contra& to and tlut the defendant r,* rr""ty una *rG,;*ecuted the waivcr$ conaiired h:tfffi: in Defendant *H"#r:?T#f"n*plea Court agreos to &e following: t. 3. 4. Drug Court will assist you to overcome your addiction. The clinical statrwill assess your teatnient needs, rerer you to an appropria& provider n'."PLUPTTa." Prov grd mee! with you io discuss your .' ry-gdgtv The clinical statr'ry,r refer you to or".r.ury mentar and physical hearth services. -saactionr, The Drug corut will hord y;" for your a"tioos. incruding jeil tim.1, u!! be irnposed for **or, *ia the court,s rut"s and directions as outlined m: Drug court Handbook. Achicvements in recovery will be rewarded and acknowledgl! througn the different phases. The cotfr will terminate your participation in the Drug cow Diversion program if you fail to complete the Mnbdate. Drug Court will hold to the agreed upon Court's Mandate, r'covsry, t 5. 6. of guiltv aad promise to-enter a drug trcatmeor progrrm, the Drug **;;;ie T*:-t, J. MORINELLO Countyof Niagara tl Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 62 of 63 '' \ t' r}ffi&41 -i,@:;ffi' DII #1 Tf:\Jtr t6 H<b,lr>\y W*l_ ,'w'"'q't s0fuP'f,c. i,c,LNS 3:: P,o,B oX ItDaL}'-D3to !;,;J';;,,YY,Y tr .l:. r' ts t' 1.,1 r $ ' OLE$K, . *l\ t. "s' u l (/NT-\ Ptl $ur?Ykt-A -{" i*. *' i ) xi ,1 . "': ti . i {. *' .r: l{ i.' ].. ii' !.: ;w . , '. r'.r...li l ; , li ".ii:, ... ;. ffiffi ' : .,. i.t,':',r-r-.F !t: "' , t'..',. l ":t$11 :d r& ).4i1.: :..:: . Case 1:15-cv-00712-RJA Document 1-1 Filed 08/11/15 Page 63 of 63 it :i i | 'k', .19 I - '-nt' L\ I | ,I -, i.T I .\4" \r I F b. S**' Drrre]+counF [U ouSL H yg#ffi U. N>W|oRK |OSI PAID fiGE COLLIhIS.NY r AUG 4034 IO.'I5 $MOUNT o\)R-i-rt tr"" S. $n nn 0 u098u85- uti +.. ,, 1 ; t t ',{ { l 3

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