People v Murry
Annotate this CaseDecided on September 9, 2015
Criminal Court of the City of New York, Kings County
The People of the State of New York, Plaintiff,
against
Dana Murry, Defendant.
2015KN011744
Appearance of Counsel:
Harvey Herbert, Esq.,
142 Joralemon Street, #8C,
Brooklyn, NY 11201,
attorney for defendant
Kenneth Thompson, District Attorney, Kings County,
by Keaupuni Akina Esq., Assistant District Attorney, Brooklyn, of Counsel
for the People
Andrew Borrok, J.
The instant motion is before the court because the defendant seeks to controvert a search warrant (the Warrant) which was issued on February 17, 2015 by Acting Supreme Court Justice Alex Calabrese and to suppress the heroin and crack cocaine which was recovered when the Warrant was executed on February 26, 2015 at 6:45 p.m. The People oppose the motion. For the reasons set forth below, the defendant's motion is denied in its entirety.
THE RELEVANT FACTS AND CIRCUMSTANCES
On February 17, 2015, Detective James Ellerbe, Shield Number 2184 of Narcotics Borough Brooklyn North, appeared before Acting New York State Supreme Court Justice Alex Calabrese of the Criminal Court of the City of New York, Kings County, to obtain the Warrant authorizing the search of 1259 Lincoln Place, Apartment 2R. The Warrant application was supported by the sworn affidavit of Detective Ellerbe and his testimony under oath. The affidavit stated that Detective Ellerbe has been a member of the New York City Police Department for approximately 11 years and during his tenure had participated in the execution of over 100 search warrants. The affidavit stated that the detective relied on information from a confidential informant (CI) that the detective has worked with in the past and that on all prior occasions the CI has provided reliable information that has resulted in the issuance of numerous search warrants and arrests of individuals. The affidavit further stated that (i) prior to the Warrant application, the detective supervised two controlled buys involving the CI at the target location, (ii) on both such occasions, the detective searched the CI prior to entering the target location and that the CI did not have any narcotics or United States currency, (iii) the detective handed the CI a quantity of United States currency, (iv) the detective observed the CI enter and leave the target location, whereupon (v) during the first controlled buy, the CI handed the detective a quantity of tan powdery substance which field tested positive for heroin and during the second controlled buy, the CI handed the detective a quantity of white rocky substance which field tested positive for crack cocaine and that the CI no longer had the quantity of United States currency both times. The CI did not swear to the information provided to the detective under penalties of perjury [*2]before Justice Calabrese. Nonetheless, Justice Calabrese (i) found probable cause that evidence of a crime existed at the target location and that the heroin and crack cocaine at the target location can be easily and quickly disposed of or destroyed and (ii) accordingly signed a "No-Knock" search warrant to which search warrant was to be executed between 6:00 a.m. and 9:00 p.m.
According to the two field test reports, the arrest report and Detective Ellerbe's memo book, the Warrant was executed nine days later at 6:45 p.m. on February 26, 2015 (i.e. on the day and within the time period authorized for such Warrant's execution) at 1259 Lincoln Place, Apartment 2R. The accusatory instrument however stated that the time and place of the execution of the Warrant was "February 27, 2015 at approximately 12:00 a.m." In any event, when the Warrant was executed, the police recovered a quantity of heroin and crack cocaine on top of a night stand inside a room where the defendant was located and the defendant was arrested.
On February 27, 2015, the defendant was arraigned and charged with two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law (PL) § 220.03). At the defendant's arraignment, the People served and filed two field test reports signed and sworn by Detective Ellerbe stating that he observed the defendant in possession of crack cocaine and heroin on "February 26, 2015 at 6:45 p.m." when the Warrant was executed. The case was adjourned until March 2, 2015 to Misdemeanor Brooklyn Treatment Court for assessment. On March 2, 2015, the People indicated that a drug treatment offer was not appropriate, and the case was further adjourned until March 3, 2015, to Part AP2 for another 18.B attorney to be assigned. On March 3, 2015, Philip Grones was relieved and John Carlton was assigned as defense counsel. The defendant waived discovery and the matter was adjourned until March 12, 2015 for a jury trial. On March 12, 2015, the People indicated that they were not ready for trial because the case was recently assigned to a new Assistant District Attorney. The People requested seven days and the matter was further adjourned until March 30, 2015 for trial. On March 30, 2015 the People indicated that they were again not ready for trial and requested seven days and the matter was adjourned until April 20, 2015 for trial. On April 20, 2015, John Carlton was relieved and Harvey Herbert was assigned as defense counsel. The People indicated that they were also not ready and requested seven days and the matter was further adjourned until May 19, 2015 for hearings and trial. On May 19, 2015, the People submitted proposed redactions of the Warrant affidavit to the court and the matter was adjourned until July 21, 2015 for either a motion schedule or for any necessary hearings and trial (i.e., if the defendant did not file a motion to controvert the Warrant).
Off-calendar on July 10, 2015, the defendant served and filed a motion to controvert the Warrant. On July 21, 2015, the court indicated that the People could file a response to the defendant's motion to controvert the Warrant by August 14, 2015. The court further indicated that the defendant could serve and file a reply by September 4, 2015. Additionally, the People made a motion to correct the accusatory instrument by oral amendment changing the day and time set forth in the accusatory instrument as to when the Warrant was executed from "February 27, 2015 at 12:00 a.m." to read "February 26, 2015 at 6:45 p.m." which time corresponds with the two field test reports, the arrest report, and Detective Ellerbe's memo book. The court granted the People's application to amend the accusatory instrument over the defendant's objection. (Tr at 4-5, lines 15-25, 1-11 AP2 [July 21, 2015]). The matter was adjourned until September 18, 2015 [*3]for the court's decision on the motion to controvert the search warrant.
DISCUSSION
I. The Defendant Lacks Standing
As a preliminary matter, the court must determine whether the defendant has standing to challenge the legality of the search. People v Tejada, 81 NY2d 861, 864 (1993), citing People v Wesley, 73 NY2d 351, 355 (1989). The defendant bears the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises searched. People v Ramirez-Portoreal, 88 NY2d 99,108, app den 88 NY2d 1071 (1996); People v Ponder, 54 NY2d 160, 165 (1981). A defendant has standing to suppress items recovered from a search if said defendant "subjectively manifested an expectation of privacy with respect to the location or item searched that society recognizes to be objectively reasonable under the circumstances." People v Burton, 6 NY3d 584, 587-588 (2006).
Inasmuch as the defendant does not plead any facts to establish a legitimate expectation of privacy in the target premises, the defendant has failed to meet its burden to establish standing. Accordingly, the defendant's motion to controvert the Warrant issued on February 17, 2015 is denied.
II. Motion to Controvert the Warrant Denied
Defense counsel argues that the accusatory instrument provided that the contraband was recovered on "February 27, 2015 at 12:00 a.m." which time is not permitted within the time authorized for such Warrant's execution and therefore must be suppressed. Further, the defendant argues that the court should not have permitted the oral amendment changing the date from "February 26, 2015 at 12:00 a.m." to "February 27, 2015 at 6:45 p.m." The court does not agree.
Criminal Procedure Law (CPL) § 200.70 provides that "at any time before or during trial, the court may, upon application of the People and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respects to defects, errors, or variances from the proof relating to matters of form, time (emphasis added), place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution " CPL § 200.70 is specifically invoked by CPL § 210.25(1) which cures defective indictments "where the defect or irregularity is of a kind that may be cured by amendment, pursuant to section 200.70, and where the people move to so amend." That same language is also found in CPL § 170.35(1)(a) which applies to a prosecutor's information or misdemeanor complaint. It has been held that "the types of amendments contemplated by CPL § 170.35(1)(a) is limited to maters of time, place, names of persons and the like.'" People v Parris, 113 Misc 2d 1066, 1069-1070 (Crim. Ct, NY Count, 1982) quoting People v Pacifico, 105 Misc 2d 396, 432 (Crim. Ct, Queens County, 1980).
In the instant case, the day and time provided in the complaint is a typographical error. "12:00 a.m." is the default setting in the People's system. All of the other paperwork - the two field test reports, the arrest report and the detective's memo book - states that the Warrant was executed on February 27, 2015 at 6:45 p.m. and not February 26, 2015 at 12:00 a.m. The People are permitted to amend the complaint correcting "February 27, 2015 at 12:00 a.m." to read "February 26, 2015 at 6:45 p.m." This amendment was properly granted by the court on July 21, [*4]2015. Inasmuch as the Warrant was executed at 6:45 p.m. on February 26, 2015 and within the time period authorized by Justice Calabrese, the Warrant was properly executed. Further, there is no prejudice to the defendant since the defendant was fully aware of the correct day and time the Warrant was executed based on all the paperwork the defendant received. Accordingly, the defendant's motion to controvert the search warrant issued on February 17, 2015 is denied.
The foregoing constitutes the decision and order of the court.
Dated: Brooklyn, NY
September 9, 2015
________________________
ANDREW BORROK
J.C.C.
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