People v Conyers
Annotate this CaseDecided on December 17, 2015
Criminal Court of the City of New York, Kings County
The People of the State of New York, Plaintiff,
against
Alisa Conyers, Defendant.
2015KN034808
Appearance of Counsel:
Aminie Woolworth, Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201, attorney for defendant
Kenneth Thompson, District Attorney, Kings County, by Ifiok Nwa 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) issued on May 20, 2015 by Acting Supreme Court Justice Alex Calabrese and to suppress the crack cocaine that was recovered when the Warrant was executed on May 29, 2015 at 5:00 p.m. The People oppose the motion. For the reasons set forth below, the defendant's motion is denied.
THE RELEVANT FACTS AND CIRCUMSTANCES
On May 20, 2015, Detective Brian Chichotky, Shield Number 726 of Narcotics Borough Brooklyn North of the New York City Police Department (NYPD) sought a Warrant authorizing the search of 1566 Sterling Place, Apartment 3S. The Warrant application, supported by the sworn affidavit of Detective Chichotky (the Warrant Affidavit), stated inter alia that Detective Chichotky, has been a member of the NYPD for approximately 10 years and during his tenure at the NYPD he has participated in the execution of over 100 search warrants. The Warrant Affidavit further provides that Detective Chichotky relied on information provided by another NYPD detective, James Ellerbe in sum and substance that Detective Ellerbe had received information from a confidential informant (CI) with whom Detective Chichotky had with worked in the past. On all prior occasions, it was alleged, the CI had provided reliable information to Detective Chichotky that had resulted in the issuance of numerous search warrants and the arrests of individuals. The Warrant Affidavit further stated that prior to the Warrant application, Detective Ellerbe had supervised two controlled buys involving the CI at the target location. On both such occasions, according to the Warrant Affidavit, Detective Ellerbe had searched the CI prior to the CI's entering the target location and reported that the CI did not have any narcotics or United States currency, that Detective Ellerbe handed the CI a quantity of United States currency, observed the CI enter and leave the target location whereupon Detective Ellerbe searched the CI and found that he had a quantity of white rocky substance that field tested positive for crack cocaine, and the CI no longer had the quantity of United States currency which Detective Ellerbe [*2]had given him.
The CI did not swear to the information provided to Detective Ellerbe before Justice Calabrese. Nonetheless Justice Calabrese found probable cause that evidence of a crime existed at the target location and that the crack cocaine at the target location could be easily and quickly disposed of or destroyed. Accordingly he issued the "No-Knock" Warrant. The Warrant was executed nine days later on May 29, 2015, a quantity of crack cocaine was recovered and the defendant was arrested.
On May 30, 2015, the defendant was arraigned and charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law (PL) § 220.03). The People indicated that they were ready for trial because the accusatory instrument is a first party complaint that contains non-hearsay factual allegations which make out a prima facie case of the pending charges. Deeming the accusatory instrument an information, the court adjourned the matter to All Purpose Part 2 (AP-2) until August 3, 2015 for Discovery by Stipulation (DBS). Pursuant to a Decision and Order, dated July 15, 2015, the court ordered the People to turn over the Warrant Affidavit to the defendant.
On August 3, 2015, the People served and filed DBS and the case was further adjourned until August 12, 2015 for possible disposition. Off-calendar, prior to the August 12, 2015 court appearance, the People provided to the court proposed redactions to the Warrant Affidavit. The court reviewed the proposed redactions and returned the Warrant Affidavit to the People with the proposed redactions that had been accepted.
On August 12, 2015, the defendant acknowledged that she had received the redacted Warrant Affidavit on July 30, 2015 whereupon the court directed the defendant to serve and file any motion to controvert the Warrant by September 14, 2015 and again adjourned the matter until September 14, 2015 for (i) the court to set a motion schedule if the defendant did in fact file a motion to controvert the Warrant or (ii) to set a trial date if no motion to controvert was filed.
The defendant did not file a motion to controvert the search warrant on September 14, 2015, however the court granted the defendant a further four day extension within which the defendant was allowed to serve and file such a motion. The People were instructed that they could file opposition papers on or before October 2, 2015, and adjourned the matter until October 30, 2015 for decision on the defendant's motion to controvert the Warrant.
The defendant in fact filed the motion under consideration on October 30, 2015 [FN1] . The court allowed the People until November 16, 2015 to file their opposition papers and adjourned the matter until January 19, 2016 for decision.
DISCUSSION
The Legislature has provided clear rules pertaining to pretrial motions.[FN2] CPL § 255.20 [*3]provides that, except as otherwise provided by law, all pretrial motions must be served or filed within 45 days after arraignment or commencement of trial or within such additional time as the court may fix prior to the entry of judgment.[FN3] The court must also entertain any appropriate pre-trial motion(s) that are based upon grounds that the defendant could not, with due diligence, have been previously aware, or, for other good cause, could not reasonably have been raised within such 45 day period. CPL § 255.20(3). A motion to controvert a search warrant falls under the 45 day filing rule provided by CPL 255.20. People v Knowles, 112 AD2d 321 (2d Dept., 1985).
The defendant received the Warrant Affidavit on July 30, 2015 pursuant to a Decision and Order dated July 15, 2015 ordering that within 45 days after receiving a copy of the Warrant Affidavit, defendant could file a motion to controvert the Warrant. Notwithstanding CPL § 255.20 (requiring all pretrial motions to be served and filed within 45 days after the defendant's arraignment or the commencement of trial), inasmuch as the Warrant Affidavit had not been made available until July 30, 2015, the defendant had not been able to file a motion to controvert the Warrant until such time. Therefore, the court authorized the defendant to file any such motion by September 14, 2015 which would have fallen 45 days following receipt from the People of the Warrant Affidavit.
The defendant in fact brought on the instant motion 92 days after receiving the Warrant Affidavit but has not sufficiently pleaded that she could not with reasonable diligence have been aware of the grounds for the instant motion within the 45 day period after receiving the Warrant Affidavit and/or the additional 4-day extension that had been granted by the court. The defendant's motion to controvert the Warrant was, thus, untimely, and is therefore denied.[FN4]
The foregoing constitutes the decision and order of the court.
Dated: Brooklyn, NY
December 17, 2015
________________________
Andrew Borrok
J.C.C.
FootnotesFootnote 1:92 days after receiving the Warrant Affidavit, 46 days later than the date the court had instructed to file any motion to controvert by, 42 days later than the second extension that the defendant had been given to file any such motion and 153 days after the defendant's arraignment.
Footnote 2:"The Legislature's purpose in enacting CPL 250.20 was to regulate pretrial proceedings by requiring a single omnibus motion to be made promptly after arraignment and thus to avoid the proliferation experienced under prior procedure in which a defendant could bombard the courts and Judges with dilatory tactics continuing right up to the eve of trial (see 1972 Report of NY Judicial Conference Advisory Committee on the CPL, 1973 McKinney's Session Laws of NY, pp 2076-2077)." People v Lawrence, 64 NY2d 200, 203 (1984).
Footnote 3:CPL § 170.30(2) provides an exception from this 45 day requirement for motions to dismiss on the grounds that the defendant has been denied the right to a speedy trial (i.e., CPL §30.30 motions brought pursuant to CPL 170.30(1)(e)). However, no such exception exists for CPL § 710.20 motions to controvert a search warrant.
Footnote 4:See People v Knowles, 112 AD2d 321 (2d Dept., 1985).
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