People v Cutts

[*1] People v Cutts 2018 NY Slip Op 28353 Decided on November 7, 2018 Supreme Court, New York County Merchan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on November 7, 2018
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Aljulah Cutts, Defendant.



3923-09



ADA: Shana Strain

Office of the District Attorney of New York County

1 Hogan Place

New York, New York 10013

Pro Se Defendant: Aljulah Cutts

DIN #: 12A3019

Great Meadow Correctional Facility

P.O. BOX 51

Comstock, N.Y. 12821-0051
Juan M. Merchan, J.

The Defendant was convicted on June 20, 2012, after a jury trial, of Murder in the First Degree, Murder in the Second Degree, and Robbery in the First Degree. He subsequently moved before this court for an order vacating his conviction pursuant to Criminal Procedure Law (hereinafter "C.P.L.") §440.10 on the ground that, inter alia, the police exceeded the scope of a search warrant when they allegedly obtained cell-site location information ("CSLI") to determine his whereabouts in order to arrest him.[FN1] In a decision dated January 11, 2017, this [*2]Court held that his claim was procedurally barred because sufficient facts appeared in the record to have permitted appellate review but the claim was not raised on appeal.[FN2] Moreover, this Court found his claim that counsel was ineffective for failing to assert that the police had exceeded the scope of the search warrant to be meritless, as the search warrant at issue did authorize the wireless company to provide the police with the historical as well as real-time cell site information, which was used to locate the defendant and led to his arrest.[FN3]

Defendant now moves, pro se, for an order pursuant to Civil Procedure Law and Rules (CPLR) §2221 (e)(2) granting leave to renew his previously decided C.P.L. §440.10 motion on the ground that Carpenter v. United States, 138 S. Ct. 2206 (June 22, 2018), a recently decided United States Court of Appeals decision, invalidates this Court's previous C.P.L. §440 decision.

CPLR §2221 (e)(2) provides that a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination. The defendant contends that Carpenter constitutes a significant change in the law, as it represents a departure from the United States Supreme Court's prior jurisprudence.

The People argue that Carpenter is not a retroactive change of controlling law that would change the outcome of the judgment herein. They also argue that the court order authorizing the installation of a pen register and trap device in this case does satisfy the Carpenter requirement as it was "effectively a warrant supported by probable cause." The People further maintain that, if Carpenter were to apply retroactively, the exclusionary rule would not apply to the Defendant's cell-site location information data because the People relied on binding precedent at the time, which held in New York State that obtaining a defendant's CSLI data without a warrant did not violate the Fourth Amendment. In support, the People cite cases in which New York Appellate Courts have found that defendants had no reasonable expectation of privacy while traveling in public, nor did they have any such reasonable expectation of privacy in information voluntarily disclosed to third parties.[FN4] Thus, the People argue that applying the exclusionary rule to CSLI data that was collected based on the law at the time would not deter unlawful searches in the future. Finally, they maintain that the Defendant's guilt was established notwithstanding the cell site data, as there was overwhelming evidence that he committed the crimes.

In a reply affidavit, Defendant contends that the People failed to address the issue of ineffective assistance of counsel in their response to his reargument motion. He reiterates his previously-rejected argument, that trial counsel failed to conduct basic research into the propriety of obtaining CSLI under an order pursuant to the Stored Communications Act (SCA) found in 18 USC §2703(d), and failed to challenge the warrantless tracking of his cellular device. Defendant further replied that the violation of his constitutional rights, as articulated in [*3]Carpenter, cuts against the quantum of evidence that the People characterize as "overwhelming."

In Carpenter v. United States, supra, law enforcement obtained location-related data on the defendant's cell phone site record pursuant to a court order issued under the SCA, which required the government to show "reasonable grounds for believing that the records were relevant and material to an ongoing investigation." The United States Supreme Court found that the Government's acquisition of historical cell site records revealing the aggregated location information of a defendant constituted a search under the Fourth Amendment. The Court noted that "cell phone location information (CSLI) is detailed, encyclopedic, and effortlessly compiled An "individual maintains a legitimate expectation of privacy in records of his physical movements as captured through CSLI." Carpenter, supra at 2216. The Court held that a warrant supported by probable cause must generally be obtained before acquiring such records, and that the showing under the SCA fell "well short of the probable cause required for a warrant." Carpenter, supra at 2221.

The Carpenter Court did not specifically address whether its ruling should be applied retroactively and New York State appellate courts have not yet addressed Carpenter's application. Notwithstanding, if Carpenter is to be treated as announcing a new rule under Teague v. Lane, 489 U.S. 288 (1989)[FN5] , defendants whose convictions became final prior to Carpenter cannot benefit from its holding. See Chaidez v. United States, 133 S. Ct. 1103 (2013) ("Teague makes the retroactivity of our criminal procedure decisions turn on whether they are novel. When we announce a "new rule," a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding. Only when we apply a settled rule may a person avail herself of the decision on collateral review." Chaidez at 347). This Defendant's conviction became final well before Carpenter was pronounced, when his application for leave to appeal to the Court of Appeals was denied. See People v. Cutts, supra.

Consequently, the motion is procedurally barred pursuant to CPL 440.10(3)(b), which provides that the court may deny a motion to vacate a judgment when the grounds or issues raised in the motion were previously determined on the merits in a prior motion absent a retroactively effective change in the law (emphasis supplied). Defendant's motion raises claims previously denied by this court, and there is no retroactively effective change in the law to alter such denial.

In the alternative, assuming arguendo that Carpenter does apply retroactively, the result herein would remain unchanged, as the court order in this case was indeed supported by probable cause (unlike the court order in Carpenter) and authorized the wireless company to provide the police with historical as well as real-time cell site information. The order authorized the [*4]installation and use of a pen register and a trap device, including caller identification and cell site information, and indicated that "[p]robable cause has been established to show that GPS/precision location is relevant to an ongoing criminal investigation." See order of Hon. Kevin B. McGrath, Jr., J., dated August 5, 2009. Thus, the order obtained to locate and arrest Defendant fully complied with the requirement under Carpenter.

This opinion constitutes the Decision and Order of the Court.

Dated: November 7, 2018

New York, New York

Juan M. Merchan

Judge of the Court of Claims

Acting Justice — Supreme Court Footnotes

Footnote 1: "Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called 'cell sites ' Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store CSLI for their own business purposes." An individual's physical movements can be captured through CSLI. See Carpenter v. United States, 138 S. Ct. 2206, 2211-2212 (2018).

Footnote 2: See People v. Cutts, 133 AD3d 544 (1st Dept. 2015), lv. den. 26 NY3d 1144 (2016).

Footnote 3: Defendant, and the Court, refer to a search warrant (which was also issued in this case), however the document in question is actually a "court order authorizing the installation of a pen register and trap device."

Footnote 4: See People v. Hall, 86 AD3d 450 (1st Dept. 2011), l.v. den. 19 NY3d 961 (2012); People v. Sorrentino, 93 AD3d 450 (1st Dept. 2012), l.v. den. 19 NY3d 977 (2012); People v. Jiles, 158 AD3d 75 (4th Dept. 2017), l.v. den. 31 NY3d 1149 (2018).

Footnote 5: The United States Supreme Court held in Teague that the question of whether federal constitutional rules apply retroactively to cases no longer subject to direct review hinges on whether a rule is "old" (in which case it is retroactively applicable) or "new" in which case it is not. People v. Baret, 23 NY3d 777, 783—784, (2014), cert. den. 135 S. Ct. 961. A rule is "new" when "the result was not dictated by prior precedent existing at the time the defendant's conviction became final" while a constitutional rule which is "susceptible to debate among reasonable minds" qualifies as a new rule. Baret at 784 (citation and internal quotations omitted) (emphasis in original).