Opinion
CR-006355-19KN
09-04-2019
The PEOPLE of the State of New York, Plaintiff, v. BESSARD, Defendant.
Defense counsel: Tess Alexander, Brooklyn Defender Services, 180 Livingston Street, Brooklyn, NY 11201. District Attorney: Jose Rojas, District Attorney, Kings County, 350 Jay Street, Brooklyn NY 11202.
Defense counsel: Tess Alexander, Brooklyn Defender Services, 180 Livingston Street, Brooklyn, NY 11201.
District Attorney: Jose Rojas, District Attorney, Kings County, 350 Jay Street, Brooklyn NY 11202.
Wendy Changyong Li, J.
I.
By a motion dated and filed with the Court on July 26, 2019 ("Motion to Controvert"), the Defendant moved to controvert the search warrant ("Search Warrant") and to suppress all evidence seized pursuant to its execution at [XXX], Apartment 1A, Brooklyn, New York ("Location"). Specifically, the Defendant challenged the validity of the Search Warrant arguing (1) that the Search Warrant was facially invalid in that (a) the Search Warrant was issued on less than probable cause; and (b) the basis of knowledge and the reliability of the informant was not established in violation of Aguilar v. Texas, 378 US 108 (1964) and Spinelli v. United States , 393 US 410 (1969) (collectively, "Aguilar-Spinelli ") and (2) that the "no-knock" provision of the Search Warrant was unjustified. The Defendant also moved for a hearing pursuant to People v. Darden , 34 NY2d 177 (1974). The People submitted an opposition ("Opposition Motion") to Defendant's Motion to Controvert, dated July 25, 2019 and August 23, 2019 and filed with the Court on August 23, 2019.
The affirmation submitted by defense counsel on July 26, 2019 was unsigned. On August 26, 2019, Ms. Alexander came to the Criminal Court Clerk's Office and signed both copies of her affirmation.
People's affirmation is dated as of July 25, 2019 and the memorandum of law is dated as of August 23, 2019.
II.
By a misdemeanor complaint (Docket No. CR-006355-19KN) filed on February 16, 2019 ("Complaint"), the Defendant was charged and arraigned in Kings County Criminal Court on one count of criminal possession of a forged instrument in the third degree ( Penal Law § 170.20 ), one count of promoting gambling in the second degree ( Penal Law § 225.05 ), one count of possession of gambling records in the second degree ( Penal Law § 225.15 [2] ) and one count of loitering ( Penal Law § 240.35[2] ).
These charges arose pursuant to the execution of the Search Warrant issued by the Honorable Michael Kitsis ("Issuing Judge"). The Complaint alleged that on or about February 15, 2019 at approximately 9:30 AM at the Location, Police Officer Gregory Vasquez of the New York City Police Department observed the Defendant in possession of a quantity of gambling receipts and a forged Rhode Island driver's license. The Complaint further alleged that the Defendant stated that he lived at the Location.
III.
On June 12, 2019, the Honorable Hilary Gingold rendered an order ("Order") granting People's motion for a protective order and directed the People to provide the Defendant with a copy of a redacted version of the such Search Warrant affidavit ("Affidavit") and the minutes ("Minutes") underlying the Search Warrant application within seven (7) days of the issuance of the Order. According to People's Opposition motion papers, the People complied with said Order and served said copy on defense counsel (Opposition Mot. at 3).
IV.
With regard to Defendant's motion to controvert the Search Warrant, where an application for a search warrant is based upon information provided to the affiant by an informant, a warrant may be issued if the magistrate finds sufficient grounds to conclude both that the informant was reliable and that such informant's information was credible ( Aguilar v. Texas , 378 US 108 ; Spinelli v. United States , 393 US 410 ).
Here, the Search Warrant application was predicated upon the testimony of an identified confidential informant concerning the informant's firsthand observations of illegal activity, as set forth in the Affidavit of the Police Officer Joseph Bautista. Because the Issuing Judge was "in a position to assess" the informant's reliability by personally examining the informant, the two-pronged test of Aguilar-Spinelli was not implicated ( People v. Taylor , 73 NY2d 683 [1989] ; People v. Hicks , 38 NY2d 90 [1975] ; People v. Small , 22 AD3d 509 [2d Dept 2005] ). In addition, the confidential informant's reliability was established because the confidential informant's testimony was given under oath and the confidential informant was identified to the Issuing Judge. In determining whether an informant is reliable, "a magistrate may rely upon the fact that information was given under oath" ( People v. Wheatman , 29 NY2d 337, 345 [1971] ). In reviewing the issuance of a search warrant, the reviewing court must decide whether, based on the information presented to the issuing judge, it "reasonably could have concluded that probable cause existed" ( People v. Castillo , 80 NY2d 578, 585 [1992] ). In making that determination, the reviewing court must "accord" great weight and "deference" to the issuing judge's decision, and the warrant should be viewed as presumptively valid ( People v. Griminger , 71 NY2d 635 [1988] ). Here, the Defendant has failed to meet his burden to persuade this reviewing Court that this Court should overturn the Issuing Judge's order of issuing the Search Warrant. Applying those principles, this Court finds that the Issuing Judge was provided with information sufficient to support a reasonable belief that evidence of the crime could be found in the Location and that probable cause existed.
Although this Court recognizes that New York State does not follow "good-faith exception" rule in a search warrant probable cause analysis, this Court will address this issue because the defense counsel has argued that the Issuing Judge should have made more inquiries to the confidential informant before issuing the Search Warrant. Court in Falso ruled that even if a search warrant lacks "sufficient basis for probable cause, suppression of the evidence [should not be] warranted because of the good-faith exception to the exclusionary rule" ( US v. Falso , 544 F3d 110 [2d Cir 2008] ). Such court further stated that "there are four circumstances in which the good faith exception does not apply ‘(1) where the issuing [judge] has been knowingly misled; (2) where the issuing [judge] wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient [such as by failing to particularize the place to be searched or the things to be seized] that reliance upon it is unreasonable.’ "(Falso at 125, citing US v. Moore , 968 F2d, 216, 222 [2d Cir 1992] ) citing US v. Leon , 468 US at 922-23 [1984].) Here, this reviewing Court has not found any circumstance exists that would have prohibited the application of the good-faith exception should the issuance of the Search Warrant were to be found to be lack of probable cause, nor has the Defendant satisfied his burden to present such circumstances to this reviewing Court; therefore, this Court must rely on the Issuing judge's ruling and Defendant's Motion to Controvert the Search Warrant must be denied.
The Court also finds that the "no-knock" provision in the Search Warrant was justified by the evidence presented to the Issuing Judge given the nature of the evidence to be seized and that life and safety of persons may be endangered by giving notice ( CPL 690.35 [4] [b] ).
V.
As to Defendant's motion for a Darden hearing ( People v. Darden , 34 NY2d 177 ), the Court of Appeals has held that a Darden hearing is necessary where insufficient evidence exists to establish probable cause for arrest independent of an officer's testimony regarding communications with a confidential informant ( People v. Crooks , 27 NY3d 609 [2016] ). The purpose of such a hearing is to verify (1) the existence of the informant; (2) the nature of the communications between the informant and the police officer; and (3) the reliability of the informant's information. "[A] Darden rule is necessary in order to fulfill the underlying purpose of Darden : insuring that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant's identity. The surest way to accomplish this task is to produce the informant for an in camera examination." ( People v. Edwards , 95 NY2d 486, 494 [2000].) Here, both the confidential informant and the police officer who applied for the Search Warrant appeared and testified before the Issuing Judge. A Darden hearing is not necessary where the confidential informant's existence and statements are beyond dispute. Nor is a Darden hearing necessary where the confidential informant testified before the Issuing Judge who issued the Search Warrant, because "verification of the existence of the informant, and of what was told to the police, will have already been achieved." ( People v. Serrano , 93 NY2d 73, 77 [1999].) Accordingly, Defendant's motion for a Darden hearing is denied.
VI.
Defendant's Motion to Controvert is denied; provided that, Defendant's motion seeking the right to make further motions is granted to the extent afforded by CPL 255.20 (3).
This constitutes the DECISION and ORDER of the Court.