Opinion
CR-007306-19KN
07-26-2019
The PEOPLE of the State of New York v. Q. TALBOT, Defendant.
Defense counsel: Sharmeen Mazumder, Brooklyn Defenders Services, 177 Livingston Place, Brooklyn, NY 11201. District Attorney: Denise Montano, District Attorney, Kings County, 350 Jay Street, Brooklyn NY 11202.
Defense counsel: Sharmeen Mazumder, Brooklyn Defenders Services, 177 Livingston Place, Brooklyn, NY 11201.
District Attorney: Denise Montano, District Attorney, Kings County, 350 Jay Street, Brooklyn NY 11202.
Wendy Changyong Li, J.
By a motion dated and filed with the Court on June 21, 2019 ("Dismissal Motion"), the Defendant moved (1) to dismiss the charge of unlawful possession of marijuana ( Penal Law § 221.05 ) pursuant to CPL 170.30 (1) (a) and 170.35 (1) (a), and (2) to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (d). By a separate motion ("Motion to Controvert") dated and filed with the Court on June 21, 2019, the Defendant also moved to controvert the search warrant ("Search Warrant") and to suppress all evidence seized pursuant to its execution at [XXX] Street, Apt. [XXX] in Kings County, New York ("Location"). Specifically, the Defendant challenged the validity of the Search Warrant arguing that the Search Warrant was issued on less than probable cause because (a) 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 (b) the information provided to the Hon. Alex Calabrese, the issuing judge ("Issuing Judge") of the Search Warrant, was stale. The Defendant further moved (1) to compel the production of the unredacted search warrant affidavit ("Affidavit"), (2) to compel the production of the confidential informant at a hearing and trial, and (3) to request a Darden hearing ( People v. Darden , 34 NY2d 177 [1974] ) and a Franks-Alfinito hearing pursuant to Franks v. Delaware , 438 US 154 (1978) and People v. Alfinito , 16 NY2d 181 (1965) (collectively,"Franks-Alfinito "). The People have submitted an opposition ("Initial Opposition Motion") dated and filed with the Court on July 3, 2019 to Defendant's motions, and have amended and restated their Initial Opposition Motion ("Amended Opposition Motion," together with the Initial Opposition Motion, the "Opposition Motion") dated and filed with the Court on July 12, 2019.
II. Facial Insufficiency
On February 22, 2019, the Defendant was charged and arraigned in Kings County Criminal Court on a Criminal Court complaint ("Complaint") with one count of unlawful possession of marijuana ( Penal Law § 221.05 ), a violation, and one count of harassment in the second degree ( Penal Law § 240.26 [1] ), a violation. These charges arose pursuant to the execution of the Search Warrant on or about February 22, 2019 at approximately 6:10 AM at the Location. Defendant was not the target of the Search Warrant.
The factual portion of the Complaint alleged that at the above date, time and Location, Det. Amjad Kasaji of the New York City Police Department ("NYPD") entered the Location, a private residence, and observed the Defendant, inside the Location, together with three other individuals. The police recovered a quantity of marijuana from the living room. The Defendant told the police officer that he resided in the living room at the Location and mail addressed and sent to the Defendant was recovered from such living room inside the Location.
The Defendant argued that the facts as alleged was insufficient to establish his dominion and control over the contraband recovered and, as such, the Complaint was "jurisdictionally defective in that it fail[ed] to demonstrate reasonable cause to believe that [the Defendant] physically or constructively possessed marijuana" (Dismissal Mot. at 3).
Pursuant to CPL 170.30 (1) (a) and 170.35 (1) (a), an accusatory instrument or a count thereof is insufficient on its face when it fails to meet the requirements of CPL 100.40. Stated differently, a misdemeanor complaint is facially sufficient when it complies with the requirements of CPL 100.15 and 100.40, in that the accusatory portion of the Complaint must inform the Defendant of the offense for which he is being charged, and the factual portion of the complaint must "[allege] facts of an evidentiary character supporting or tending to support the charges" ( CPL 100.15 [2], [3] ; see People v. Kalin , 12 NY3d 225, 228 [2009] ). The factual allegations of the complaint, together with those of any supporting depositions, must "provide reasonable cause to believe that the defendant committed the offense charged" in the instrument ( CPL 100.40 [1] [b], [4] [b] ). Under CPL 100.40 (1), the accusatory instrument must also contain factual allegations that give the accused "notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense" (see People v. Casey , 95 NY2d 354, 360 [2000] ). Additionally, "the prima facie case requirement [for factual allegations in the accusatory instrument is a lesser burden than proof] beyond a reasonable doubt required at trial" ( People v. Henderson , 92 NY2d 677 [1999] ). Furthermore, courts should give the allegations "a fair and not overly restrictive or technical reading" ( Casey , 95 NY2d at 360 ).
Here, the contraband was recovered in the living room, the Defendant was found in the living room, the Defendant admitted that he lived in the living room and mail was recovered bearing Defendant's name and the address of the Location. However, the Defendant argued that the "[C]omplaint faile[d] to indicate whether the contraband was in plain view ... [and that] ... [t]he mere allegation that [the Defendant] reside[d] in the living room where the contraband was allegedly found, which other residents [had] free and regular access to the living room, [was] insufficient to establish the requisite dominion or control" (Dismissal Mot. at 3). In response, the People stated that the NYPD found a bed in the living room, that "additionally, on an end table next to the bed, officers recovered mail containing [D]efendant's W-2 bearing [D]efendant's name and the target [L]ocation as the address," and that the "marijuana recovered was on the same end table as [D]efendant's mail." (Amended Opposition Mot. at 7). The Court finds that if the above additional facts ("Additional Facts") presented by the People in their Amended Opposition Motion were alleged in the Complaint, the Complaint would have been legally sufficient to prove Defendant's exercise of "dominion or control" over the contraband as required by Penal Law § 10.00 (8) and would have established a prima facie case of Defendant's unlawful possession of marijuana ( Penal Law § 221.05 ). Here, the Complaint is defective, without the Additional Facts describing that the marijuana was found in plain view next to Defendant's W-2 on the end table by the bed in the living room where the Defendant resides, to prove that the Defendant has exercised his "dominion or control" over the contraband found in the living room where "other residents have free and regular access" (Dismissal Mot. at 3). CPL 170.35 (1) (a) provides that a facially insufficient accusatory instrument "may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the People move to so amend" ( People v. Easton , 307 NY 336 [1954] ). The Court would have granted leave for the People to amend the Complaint if they were to so move in their Opposition Motion. Here, the People did not pray, in their Opposition Motion, for an amendment to their Complaint in the event that the Court finds the Complaint facially insufficient; therefore, Defendant's motion to dismiss the charge of unlawful possession of marijuana ( Penal Law § 221.05 ) based on facial insufficiency is granted without prejudice.
Since neither party has addressed the charge of harassment in the second degree ( Penal Law § 240.26[1] ), this charge remains.
III. Speedy Trial
Pursuant to CPL 30.30 (1) (d), where, as here, the Defendant is charged with one or more offenses, none of which is a crime, the People must be ready for trial and declare their readiness within 30 days of commencement of the criminal action, which began with the filing of the accusatory instrument on February 22, 2019 ( CPL 1.20 [16][a] ). On this date, the Defendant was arraigned on the Complaint in Part AR-3A; the People stated ready; the Defendant was released on his own recognizance; and the case was adjourned to March 26, 2019 in Part AP-2 for discovery by stipulation and Search Warrant materials. February 22, 2019 to March 26, 2019 (32 days) is excluded. On March 26, 2019, the People filed and served discovery and the case was adjourned to May 3, 2019 for hearing and trial. March 26, 2019 to May 3, 2019 (38 days) is excluded pursuant to CPL 30.30 (4) (a). On May 3, 2019, the People were not ready, requested seven (7) days, and the case was adjourned to June 7, 2019 for hearing and trial and Search Warrant materials. From May 3, 2019 to June 7, 2019 is 35 days, however, the People are only charged seven (7) days for this post-readiness delay. On June 7, 2019, the People were not ready, and defense counsel requested a motion schedule in order to move to controvert the Search Warrant. The case was adjourned to July 30, 2019 for hearing and trial and Court's decision on the Motion to Controvert. On June 21, 2019, defense counsel filed the Motion to Controvert. June 7, 2019 to July 30, 2019 (54 days) is excluded pursuant to CPL 30.30 (4) (a). As the People are charged a total of seven (7) days, they have not exceeded the statutory time limit of 30 days. Accordingly, Defendant's motion to dismiss the Complaint pursuant to CPL 30.30 (1) (d) is denied.
IV. Motion to Compel the Production of the Unredacted Affidavit
Pursuant to both parties' motion papers, on May 30, 2019, the Hon. Archana Rao rendered an order ("Order") granting People's motion for a protective order and directed the People to provide the Defendant with a copy of the redacted version of the Affidavit. Pursuant to both parties' motion papers, on May 31, 2019, the People complied with said Order and served said copy on defense counsel. In the Motion to Controvert, the Defendant renewed his application to compel the production of the unredacted Affidavit. As the Defendant has not provided this Court with any new facts or changed circumstances, this part of Defendant's motion for the unredacted Affidavit is denied.
V. Motion to Controvert the Search Warrant
With regard to Defendant's motion to controvert the Search Warrant, where, as here, 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 pursuant to Aguilar-Spinelli .
Here, the Search Warrant was issued upon the Affidavit of Det. Amjad Kasaji, a 13-year veteran of the NYPD. The Affidavit indicated that on several occasions a confidential informant was present inside the Location and observed a revolver inside the subject Location. The reliability of the confidential informant's information was sufficiently demonstrated by personal observations made by the confidential informant and communicated first to Det. Kasaji and then by Det. Kasaji to the Issuing Judge. This Court finds that the Affidavit submitted by Det. Kasaji satisfied the two-prong test. The veracity prong has been met in light of the fact that the confidential informant, in the past, had given Det. Kasaji information which led to the arrest of individuals for the possession of firearms, ammunition, controlled substances and narcotics. Having provided reliable information on even one occasion is a sufficient track record for most judges ( People v. Walters , 187 AD2d 472, 472 [2d Dept 1992] ). There is no rule that an informant's reliability can only be established if information previously provided must have resulted in a conviction (see People v West , 92 AD2d 620 [3d Dept 1983] ; People v Calise , 256 AD2d 64 [1st Dept 1998], quoting People v. Whitt , 203 AD2d 606 [2d Dept 1994] ). Court in Tyrell stated that "there is no per se requirement that [information provided by the informant] must have led to a conviction or have been independently verified in order for the informant to be considered reliable" ( People v. Tyrell , 248 AD2d 747, 748 [3d Dept 1998] ). Here, the confidential informant's reliability was sufficiently demonstrated to the Issuing Judge. The basis of knowledge test has similarly been satisfied since the confidential informant set out for Det. Kasaji the underlying circumstances and the specific dates that the alleged illegal activities were taking place ( People v. Hanlon , 36 NY2d 549 [1975] ). In addition, Det. Kasaji personally made an independent verification of the Location. These allegations, taken together, demonstrate the reliability of the information.
Defendant's argument that the information provided by the confidential informant might have been stale at the time of the Search Warrant application is without merit. The unredacted Search Warrant application shows that the last incident occurred within a short period of time prior to the application of the Search Warrant. In addition, the Search Warrant was timely executed within the 10-day period permitted by law ( CPL 690.30 [1] ).
VI. Darden hearing
As to Defendant's motion for a Darden hearing, since it appears that the confidential informant did not personally appear before the Issuing Judge, the Defendant is entitled to a Darden hearing at which the People must produce the confidential informant for an in-camera examination ( People v. Edwards , 95 NY2d 486 [2000] ). The Defendant may submit questions for the Court to pose to the informant during its ex parte examination. However, this Court has dismissed the charge of unlawful possession of marijuana ( Penal Law § 221.05 ) without prejudice, the fruit of the execution of the Search Warrant, a Darden hearing, therefore, is moot at this point.
VII. Motion to Reveal the Identity of the Confidential Informant
Defendant's motion to reveal the identity and to compel the production of the confidential informant at trial, or alternatively, at a hearing pursuant to People v. Goggins , 34 NY2d 163 (1974) is denied. Here, the confidential informant was not present at the Location at the time of the Search Warrant execution, and the Defendant is not being charged with any violations that the confidential informant witnessed. Because the confidential informant merely provided initial information to Det. Kasaji, the confidential informant would be unable to provide any additional information as to Defendant's guilt or innocence with regard to the violations charged in the Complaint. Accordingly, Defendant's motion to reveal the identity of the confidential informant made pursuant to Goggins (id. ) is denied.
VIII. Motion for a Franks-Alfinito Hearing
The Defendant requests a hearing pursuant to Franks-Alfinito "should the Darden hearing reveal inconsistencies between the informant's account of what he or she observed at the target location and of his or her track record as an informant and Detective Kasaji's affidavit" (Mot. to Controvert at 16). The law permits the Defendant to challenge the facts as they appear in a search warrant affidavit ( Alfinito , 16 NY2d 181 ). However, the Defendant has the burden to establish by a "preponderance of evidence" ( Franks , 438 US 154 ) that "the detective, in applying for a search warrant knowingly made false statements or did so with reckless disregard for the truth" ( People v Holman , 248 AD2d 637, 638 [2d Dept 1998] ). If a Defendant does not "make a 'preliminary showing that a false statement [was made] knowingly and intentionally, or with reckless disregard for the truth,'" then no hearing is required ( People v Gayle , 166 AD2d 454, 454 [2d Dept 1990], citing Franks , 438 US 154, 155 ). Here, the Defendant has failed to meet his burden to make a substantial preliminary showing to be entitled to a Franks-Alfinito hearing. Accordingly, Defendant's motion for a Franks-Alfinito hearing is denied.
IX. Decision and Order
Defendant's motion to dismiss the charge of unlawful possession of marijuana ( Penal Law § 221.05 ) for facial insufficiency is granted without prejudice.
Defendant's motion to dismiss the Complaint pursuant to CPL 30.30 is denied.
Defendant's Motion to Controvert is denied provided that Defendant's motion for a Darden hearing would have been granted if it were not moot.
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.