People v Cruz

[*1] People v Cruz 2020 NY Slip Op 51581(U) Decided on December 11, 2020 Supreme Court, Kings County Konviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2020
Supreme Court, Kings County

The People of the State of New York

against

Eric Cruz, Defendant.



6931/18



Appearing on behalf of the People:

Assistant District Attorney Daniel Murphy

Kings County District Attorney's Office

350 Jay Street

Brooklyn, NY 11201

Appearing on behalf of the defendant:

Michael Jaccarino, Esq.

Aidala, Bertuna & Kamins, P.C.

546 Fifth Avenue - Sixth Floor

New York, New York 10036
Jill Konviser, J.

On September 7, 2018, a witness, visiting the resident of an apartment in the vicinity of 93rd Street and 3rd Avenue in Brooklyn, looked out the window of that apartment and observed the defendant stab a man to death on the sidewalk. The defendant now moves pursuant to Criminal Procedure Law Section 245.30(2) for an order granting access and entry into that apartment. The defendant contends that he must access and enter the apartment in order to assess the visiting witness's viewpoint. The defendant also argues that the apartment must remain in an unchanged condition. The People oppose the defendant's motion as they argue the privacy interests of the apartment dweller, who is neither a witness nor in any way connected to the crime, override the defendant's purported need for access. The People further contend that other evidence in the case — duplicative equivalent evidence — renders the requested access redundant. For the reasons that follow, the defendant's motion is denied.

Although the defendant has a fundamental right to investigate and present a defense, the Court is unwilling to order the veritable invasion of an uninvolved citizen's home, especially when the defendant has failed to articulate that he would otherwise be deprived of evidence. Significantly, the defendant has been provided with a copy of a remarkably clear cell phone video that the visiting witness recorded from the window of the apartment. The video unquestionably demonstrates the witness's perspective and ability to observe the scene — a public sidewalk. What is more, the defendant has been provided with extensive discovery — video [*2]surveillance recordings of the stabbing, body camera footage, and crime scene photographs.[FN1] It bears repeating, the visiting witness's viewpoint has been preserved by other means, and, as such, an order forcing the apartment dweller to open his/her home to strangers, would be unreasonable and unduly burdensome.[FN2] So, too, the defendant's request that the apartment remain unchanged in the interim is unpersuasive to the extent that it is the view of the public sidewalk below that he seeks to preserve, and not any item within the apartment itself.

More importantly, as COVID-19 sweeps across the world, the country, and New York City, particularly ravaging Brooklyn, this Court is loath to order a private citizen with no connection to the crime to welcome strangers — defense counsel, a defense investigator, law enforcement personnel — into his/her home.[FN3] While the long-reaching and long-lasting effects of COVID-19 are still uncertain, what is certain is that this is a precarious and dangerous time in our history.[FN4] As such, permitting entry into that apartment would unreasonably place the apartment dweller in harm's way. The Court is simply unwilling to do so.

Based on the foregoing — the overriding privacy interests of the apartment dweller, the significant, duplicative evidence, and the COVID-19 pandemic — the defendant's motion is denied.

Conclusion

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This constitutes the Decision and Order of this Court.

Dated: Brooklyn, New York

December 11, 2020

____________________________

J.S.C. Footnotes

Footnote 1:The Court has reviewed all of the referenced evidence.

Footnote 2:A protective order relating to the identity of the witness and the exact location from where that witness made his/her observations is currently pending before this Court.

Footnote 3:See https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports; https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days; https://coronavirus.health.ny.gov/home.

Footnote 4:See https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html.