People v Moses

[*1] People v Moses 2018 NY Slip Op 50328(U) Decided on March 14, 2018 Supreme Court, Kings County D'Emic, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 14, 2018
Supreme Court, Kings County

The People of the State of New York

against

Somorie Moses, Defendant.



700/2017



For the defendant, Julie Clark, Esq., Brooklyn, NY

For the People, Eric Gonzalez, district Attorney Kings County, Brooklyn, NY (Sabeeha Madni Esq., of counsel).
Matthew J. D'Emic, J.

The defendant moves for an order, pursuant to CPL §§690 and 710, controverting the search warrants and suppressing all physical evidence obtained upon their execution. Alternatively, the defendant seeks a Franks/Alfinito hearing. Upon consideration of the defendant's moving papers, the People's opposition papers, the affidavit in support of the search warrant and the warrant itself, the defendant's motion is hereby denied.

The People allege that several body parts belonging to an African-American Jane Doe were observed at a trash sorting and weigh station facility in Bronx County at approximately 4:45 a.m. on January 17, 2017. NYPD detectives identified trucks that deposited refuse at the station in the hour immediately preceding the discovery of the humans remains and interviewed the operators thereof. Upon further investigation, the detectives determined that a person involved in the disposal of the remains was using the telephone number 718-688-1497, which law enforcement agents connected to the defendant. The officers were also given reason to believe the defendant was a sex offender and reviewed sex offender registration records, which listed the defendant's residential address as 185 Erasmus Street in Kings County (the "target location"). Investigators also learned that an unidentified female called 911 from inside the same building at approximately 11:36 p.m. on January 16, 2017 to report that she was being sexually assaulted.

On January 18, 2017, Assistant District Attorney Jennifer Gray of the Bronx County District Attorney's Office filed an application for a warrant authorizing the instillation and use of a pen register and trap and trace device to obtain cellular site location information and precision location/GPS information for the defendant's phone for the purpose of locating the defendant [*2]("trap and trace warrant"). After considering Detective Sean O'Leary's affidavit in support of the application, Judge David Kirschner determined that there existed sufficient cause to issue the warrant.

Officers of the NYPD's Violent Felony Apprehension Squad went to the target location to arrest the defendant on January 20, 2017. When the officers rang the front doorbell, the defendant exited the apartment through the rear door. While pursuing defendant, Detective Skulsky observed what appeared to be blood on both the front door of the apartment and one of the living room walls. In addition, he noticed a large white stain on the wood floor of the living room, which he believed to be consistent with a bleach stain. Detectives apprehended the defendant in the hallway of his residential building and recovered keys to a white Lexus GS350 sedan from his person. Officers also recovered a silver LG phone from a bed inside the target location, which they confirmed was the device to which the telephone number 718-688-1497 was assigned.

On January 21, 2017, Detective Ernest Dorvil appeared before Bronx County Criminal Court Justice Cori Weston to apply for search warrants for the target location, the LG phone and the Lexus. In his affidavits accompanying the warrant applications, Detective Dorvil detailed what the officers had observed when they effected the defendant's arrest and incorporated all of the factual allegations provided in Detective O'Leary's affidavit. After interviewing the relevant detectives in-camera, Justice Weston issued all three search warrants.[FN1] When members of the NYPD executed the search warrant for the target location on January 22, 2017, they discovered additional female body parts inside a stand-alone freezer therein. The remains found in the freezer and at the Bronx waste facility were subsequently determined to belong to one individual, whom authorities identified as the defendant's former girlfriend.

As an initial matter, the People maintain that the defendant lacks standing to challenge the search of the target location because the decedent was the sole lessee of record for the premises. Even if decedent was the only tenant of record, the search warrant applications all allege that the defendant's registered home address was that of the target location. Having relied upon that fact to secure the search warrants, the prosecution cannot now allege that the defendant has not proven his relationship to the premises searched or a legitimate expectation of privacy therein.

Both the Federal and State Constitutions require that a warrant be issued only if the warrant application provides probable cause to believe that contraband or evidence of a crime will be found in a particular location (People v Hetrick, 80 NY2d 344, 348 [1992]). Probable [*3]cause is information sufficient to support a reasonable belief that an offense was or is being committed on certain premises (People v McRay, 51 NY2d 594, 602 [1980]). In reviewing the sufficiency of a search warrant, the court is limited to the four corners of the affidavit and any oral testimony given in support of the warrant (People v Nieves, 36 NY2d 396, 402 [1975]). A search warrant that was approved by an independent Magistrate has a presumption of validity (People v Castillo, 80 NY2d 578, 585 [1992]). Consequently, a reviewing court's examination is limited to the issue of whether the issuing judge could reasonably conclude that probable cause existed (id.; People v Serrano, 93 NY2d 73, 76 [1999]).

The defendant argues that controversion of the search warrant is mandated upon several grounds, two of which pertain to the confidential informant referenced in the affidavits of both Detective Dorvil and Detective O'Leary: (1) that the warrant application failed to comply with the Aguilar-Spinelli standard; and (2) that the affidavits contain material misstatements or misrepresentations of facts necessary to establish probable cause. With respect to the latter, the defendant requests an Alfinito/Franks hearing. The defendant further contends, inter alia, that the warrant is defective on its face because it fails to identify the places to be searched or the items subject to seizure with sufficient particularity. The court does not find any of the defendant's claims to be compelling.

Particularity Requirement and No-Knock Violation

The defendant maintains that the search warrant for the target location is defective pursuant to CPL §§690.15(1)(a) and 690.45(5) because it fails to particularly describe the place to be searched. To the contrary, the descriptions in the warrant are "sufficiently definite to enable the searcher to identify the persons, places or things that the Magistrate has previously determined should be searched or seized" (Nieves, 36 NY2d at 401). The location to be search is identified by street address and apartment number, the Lexus by its VIN number and the cell phone by its assigned phone number.

Similarly, the defendant's claim that the warrant failed to furnish specific direction regarding what property and personal papers were subject to seizure is undermined by the plain language of the warrant - namely, the scope of the warrant was limited to those papers relevant to identification of the female decedent, who was a Jane Doe at the time the warrant issued. Given the material circumstances and facts before the issuing Magistrate at the time the warrant application was decided, the warrant satisfied the particularity requirement.

According to the defendant, evidence recovered during the search of the target location must be suppressed because officers executed the search warrant for the target location without first giving notice of their authority and purpose to an occupant thereof before entering the premises (CPL §690.50[1]). However, after placing the defendant under arrest, officers sealed the target location until a search warrant was secured. There is no violation of the knock-and-announce rule where the officers executing the search are aware that the premises are at the time unoccupied (CPL §690.50[2][a]).

[*4]Aguilar-Spinelli

In New York, a warrant applicant may rely upon hearsay to demonstrate probable cause as long as the information satisfies the two-pronged Aguilar-Spinelli test, which requires a reasonable showing that the informant was reliable and had a basis of knowledge (Serrano, 93 NY2d at 78); People v Griminger, 71 NY2d 635, 637-639 [1988]; see Aguilar v Texas, 378 US 108 [1964]; Spinelli v United States, 393 US 410 [1969]). The defendant asserts that the factual averments presented in the warrant application failed to afford the issuing magistrate an adequate basis to conclude that either prong was satisfied.

The court has reviewed the warrant application and accompanying affidavits in-camera and finds that the information provided by the informant was "of such quality, considering its source and the circumstances in which it came into possession of the informant, that a reasonable observer would be warranted in determining that the basis of the informant's knowledge was such that it led logically to the conclusion that" the defendant was involved in the illegal disposal of human remains (People v Greene, 153 AD2d 439, 444 [2d Dept 1990] [internal citations omitted], appeal denied 76 NY2d 735 [1990], cert denied 498 US 947 [1990]). The informant explained the manner in which he learned of the information at issue and he provided enough detail to indicate a personal basis of knowledge which comported with the facts already ascertained by law enforcement (People v Jean-Charles, 226 AD2d 395 [2d Dept 1996], appeal denied 88 NY2d 987 [1996]).

Contrary to the defendant's contention, Detective Dorvil's affidavit is not predicated upon mere suspicions, conjecture and hunches. The court has reviewed the affidavits in support of the warrant applications and finds that several pieces of relevant and probative information furnished by the informant were sufficiently corroborated through independent police investigation to establish the informant's reliability (People v Jackson, 187 AD2d 531 [2d Dept 1992] [undisclosed informant's reliability sufficiently established where informant gave details of shooting which either matched or had been independently confirmed by police investigation], lv denied 81 NY2d 841 [1993]; see People v Rodriguez, 52 NY2d 483 [1981]). Thus, the People have satisfied the requirements of Aguilar-Spinelli.[FN2]

Alfinito/Franks Hearing

Alternatively, the defendant seeks an Alfinito/Franks hearing on the ground that the affidavits in support of the search warrants contained false statements that were necessary to the issuing courts' findings of probable cause. However, the defendant is not entitled to a hearing because his motion "challenge[s] only the veracity of the informant[s], and not the veracity of the police officer affiant" (People v Leggio, 84 AD3d 1116, 1117 [2d Dept 2011], citing People v Slaughter, 37 NY2d 596, 600 [1975]). Even if the court were to construe some of the [*5]defendant's claims as attacking the affiant's credibility, a hearing would not be warranted.

To be entitled to a Franks/Alfinito hearing, a defendant must make a "substantial preliminary showing that the warrants were based upon affidavits containing false statements made knowingly or intentionally or with reckless disregard for the truth" (People v McGeachy, 74 AD3d 989, 990 [2d Dept 2010] [internal citations omitted], lv denied 15 NY3d 853 [2010]). A defendant may fulfill this burden by "submit[ting] a sworn statement alleging falsehoods in the search warrant affidavit sufficient to raise any doubt as to the probable cause supporting the issuance of the warrant" (People v Woolnough, 180 AD2d 837, 839 [2d Dept 1992], appeal denied 79 Ny2d 1056 [1992]). It is not enough to show that the affidavit contained a false statement; the defendant must demonstrate that the affiant knew or should have known of the falsity (see People v Apelbaum, 33 Misc 3d 4 [App Term 2011]). The defendant relies on conclusory allegations and fails to allege that the affiant proffered an untrue statement knowingly or intentionally, or with reckless disregard for the truth.

Additionally, the defendant asserts that the officers conducted a warrantless search of the target location under the guise of "freezing" the premises, but does not proffer any factual allegations to support his claim. Moreover, probable cause to issue search warrants for the target location, Lexus and LG phone would still have existed without the a officers' description of the blood and bleach stains inside the apartment, the warrant applications contained sufficient factual allegations to establish probable cause to issue the search warrants for the target location, Lexus and LG phone. Therefore, suppression is not warranted (People v Arnau, 58 NY2d 27, 37-38 [1982]).

Accordingly, the defendant's motion to controvert the warrant is hereby denied in its entirety.

This decision shall constitute the order of the court.

E N T E R:

MATTHEW J. D'EMIC, J.S.C. Footnotes

Footnote 1:Four search warrants have been issued in relation to this criminal matter: the January 18, 2017 trap and trace warrant and the three warrants dated January 21, 2017, which authorized searches of the target location, the LG cellular phone and the Lexus. Although the defendant's motion refers to the warrant authorized by Judge Kirschner (trap and trace) and mentions wiretapping of the defendant's phone, it is clear that the defendant's motion only seeks to controvert the three search warrants issued by Justice Weston on January 21, 2017.

Footnote 2:Defense counsel characterizes the informant as a "co-defendant" and asserts that the People were therefore required to present sufficient corroboration to a grand jury to obtain a search warrant. The court is unaware of any such legal requirement and counsel does not cite to any statute or case that supports this claim.