|People v Wright|
|2015 NY Slip Op 51684(U) [49 Misc 3d 1215(A)]|
|Decided on November 23, 2015|
|Criminal Court Of The City Of New York, Kings County|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
The People of the State of New York, Plaintiff,
Rasheed Wright, Defendant.
The case at nisi prius involves an arrest made pursuant to the execution of a search warrant (the Warrant) that was issued based partially upon information provided by a confidential informant who neither appeared in front of the judge who issued the Warrant nor who is now available. The defendant seeks to controvert the Warrant or, in the alternative, have the court order an in camera hearing to seek to verify the existence of the CI (hereinafter defined) and ensure that the information provided by the CI was not fabricated.[FN1] Additionally the defendant asks this court to unveil the redacted portions of the Warrant Affidavit and allow the defendant to preserve a right to make further motions pursuant to Criminal Procedure Law (CPL) §§ 690, 240.50, and 255.20(3). The People oppose the motion.
The controlling issue before the court is whether the People can meet their burden to demonstrate through extrinsic evidence that the CI exists and is not wholly imaginary.[FN2] For the reasons set forth below, the defendant's motion is denied in its entirety.
On January 7, 2015, following two controlled buys of marijuana, Detective James Miles, Shield Number 1016 of the Brooklyn North Gang Squad, appeared before Justice Joel M. Goldberg, Supreme Court, Kings County to obtain a search warrant authorizing the search of 191 Riverdale Avenue, Apartment F, in Kings County (the target location). The defendant was the "target" of the Warrant. The search warrant application was supported by the sworn affidavit of Detective James Miles (the Warrant Affidavit). Justice Goldberg found probable cause that evidence of a crime committed by the defendant existed at the target location and accordingly signed the "No-Knock" Warrant. The Warrant was executed two days later on January 9, 2015 [*2]and a zip lock bag of marijuana and two plastic twists of marijuana were recovered. The defendant was then arrested.
The defendant was arraigned later that day on January 9, 2015 and charged with Criminal Possession of Marijuana in the Third Degree (Penal Law (PL) § 221.20), Criminal Possession of Marijuana in the Fourth Degree (PL § 221.15), Criminal Possession of Marijuana in the Fifth Degree (PL § 221.10) and Unlawful Possession of Marijuana (PL § 221.05) following which the case was adjourned until the next business day, January 12, 2015, and referred to Part APD for evaluation.
On January 12, 2015, the People indicated that no drug treatment offer was appropriate, and the case was further adjourned to part AP1F until January 14, 2015 for Grand Jury Action. On January 14, 2015, the People dismissed the sole felony charge of Criminal Possession of Marijuana in the Third Degree (PL § 221.20) and served and filed a lab report. The court deemed the accusatory instrument an information and further adjourned the matter to part AP2 until February 18, 2015 for Discovery by Stipulation (DBS).
On February 18, 2015, the People served and filed DBS and the case was adjourned until March 26, 2015 for the production of the Warrant Affidavit. On March 26, 2015, the People did not produce the Warrant Affidavit and the matter was further adjourned until May 6, 2015. On May 6, 2015, the People still did not produce the Warrant Affidavit and the matter was further adjourned until July 22, 2015.
Off-calendar, and prior to the scheduled July 22, 2015 court date, the People submitted proposed redactions of the Warrant Affidavit to the court which reviewed the proposed redactions, returned the Warrant Affidavit (with the proposed redactions which had been accepted) to the People together with a Decision and Order, dated May 11, 2015, in accordance with CPL §240, that ordered the People to serve the Warrant Affidavit (with the proposed redactions which had been accepted) upon the defendant within seven days. The Court further directed the defendant to serve and file any motion to controvert the Warrant within 45 days following receipt from the People of the Warrant Affidavit. On July 10, 2015, the defendant filed the instant motion.
At the July 22, 2015 scheduled court appearance, the court directed the People to file any opposition papers by August 5, 2015 and further adjourned the matter until September 8, 2015 for the court's decision. Upon review of the defendant's motion, by Decision and Order, dated August 27, 2015 (the August 27th Decision and Order), the court (i) found that the defendant had standing to challenge the search and (ii) ordered that, inasmuch as the Warrant was based in part upon Detective Miles' reliance on information from a confidential informant (the CI) who had not sworn under penalties of perjury to the information provided to Detective Miles before Justice Goldberg, an in camera hearing be held during the week of September 21, 2015 to (a) verify the existence of the CI and to (b) ensure that the information provided by the CI was not fabricated (the Darden Hearing). The court also instructed the defendant to submit for the court's consideration by September 18, 2015 any proposed written questions that the defendant desired to be posed at the Darden Hearing, and further adjourned the matter until October 13, 2015 for the court's decision on the defendant's motion.
Off-calendar and prior to September 21, 2015, the People contacted the court indicating that the CI was not going to be available for the Darden Hearing and requested an extension of [*3]time to demonstrate the reason for the CI's unavailability and to provide the court with extrinsic evidence of the CI's existence at a rescheduled Darden Hearing. The court acceded to that request and granted the People an extension until September 30, 2015. At the scheduled October 13, 2015 court date, the case was administratively adjourned until December 16, 2015 to allow time for the rescheduled Darden Hearing, the court's consideration of any extrinsic evidence submitted by the People at the Darden Hearing and for the court's decision.
On November __[FN3] , 2015, the Court conducted the Darden Hearing. Detective Miles appeared and testified under oath and, as expected, the CI did not appear. At the Darden Hearing, Detective Miles testified that he has been a member of the New York City Police Department (NYPD) for approximately eight years and is currently working in the Brooklyn North Task Force. Detective Miles testified that prior to working in the Brooklyn North Task Force he was assigned to the Brooklyn North Gang Squad out of the 79th Precinct. Detective Miles further testified that during his tenure with the NYPD he has received special training in narcotics, has made approximately 340 arrests and of those 340 arrests approximately 230 were in connection with the execution of search warrants.
With respect to the CI, in short, Detective Miles testified that he has exhausted all means of contacting the CI without success, and that he knew of no one else who could contact the CI as he was the sole direct contact person within the NYPD for the CI. More specifically, Detective Miles testified that (i) he is no longer in contact with the CI, (ii) the telephone number that Detective Miles has for the CI is no longer in service, (iii) the CI had informed Detective Miles that the CI no longer wanted to work with the NYPD as a confidential informant, and (iv) upon visiting the CI's last known address he had been informed that the CI has "moved down south."
Detective Miles further testified that he had worked with the CI in the past and that the CI has provided reliable information that resulted in the issuance of numerous search warrants and the arrest of individuals. Detective Miles also testified that (i) prior to the execution of the Warrant in this case, he supervised two controlled buys with the assistance of the CI at the target location, (ii) on both such occasions, Detective Miles searched the CI prior to the CI's entering the target location and that the CI did not have in his possession any contraband or United States currency, (iii) Detective Miles handed the CI a quantity of United States Currency, (iv) Detective Miles observed the CI enter and leave 191 Riverdale Avenue, Brooklyn, New York, whereupon (v) the CI handed Detective Miles a quantity of a green leafy substance which field tested positive for marijuana and (vi) the CI no longer had the quantity of United States currency that had been provided to him by Detective Miles prior to his observed entry into 191 Riverdale Avenue, Brooklyn, New York.
The People offered certain exhibits at the Darden Hearing that corroborated Detective Miles' testimony. The People's Exhibit One, an affidavit detailing Detective Miles' efforts to contact the CI, provides that (i) on September 14, 2015 and September 16, 2015, Detective Miles attempted to call the CI by telephone but the CI's telephone was no longer in service, and (ii) on September 18, 2015, Detective Miles personally went to the CI's last known address and [*4]encountered _____[FN4] who indicated that the CI no longer lived at the location and had moved "down south." The People's Exhibit Two, Detective Miles' memo book, memorializes each attempt by Detective Miles to contact the CI. The People's Exhibit Three, the "Buy Reports", memorialized the two controlled buys that Detective Miles testified to at the Darden Hearing that were conducted with the CI prior to the execution of the Warrant Affidavit. The People's Exhibit Four, the redacted Warrant Affidavit, further memorialized Detective Miles' relationship with the CI and the two controlled buys conducted with the CI. The People's Exhibit Five entitled "CI information change, activity and payment paperwork" is the paperwork Detectives Miles completed for the payment of the CI. Finally, the People's Exhibit Six are minutes of sworn testimony of the CI in connection with a separate search warrant application for a different location where the CI had appeared and testified under oath before Justice Michael Brennan upon which testimony Justice Brennan issued a search warrant.
Under both the United States and New York Constitutions, no warrant may be issued except upon probable cause based on facts presented to the magistrate under oath or affirmation. US Const., 4th Amend; NY Const., Art 1, § 12. "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely requires information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found at a certain place." People v Bigelow, 66 NY2d 417, 423 (1985). When determining whether probable cause exists, the Court of Appeals has stated that there is no "infallible formula":
"In the real world, we are confronted with search warrant applications which are generally not composed by lawyers in the quiet of a law library but rather by law enforcement officers who are acting under stress and often within the context of a volatile situation. Consequently such search warrant applications should not be read in a hyper-technical manner as if they were entries in an essay contest. On the contrary, they must be considered in the clear light of everyday experience accorded with reasonable inferences." People v Hanlon, 36 NY2d 549, 559 (1975).
Warrants should be scrutinized in a "common sense and realistic fashion." People v Glen, 30 NY2d 252, 262 (1971).
Probable cause may be supplied, in whole or part, through hearsay information. Bigelow, 66 NY2d. Where hearsay information from an undisclosed informant is the basis for the issuance of a search warrant, such information must be examined under the Anguilar-Spinelli two-prong test. Aguilar v Texas, 378 U.S. 108 (1964); Spinelli v United States, 393 U.S. 410 (1968). This two-prong test requires that the officer's affidavit show (1) the veracity or reliability of the [*5]informant's knowledge, and (2) the basis of the informant's knowledge. When probable cause is determined based on information from a confidential informant, the New York Court of Appeals has expressly rejected the more recent relaxed "totality of the circumstances" standard to determine probable cause set forth in Illinois v Gates, 462 U.S. 213 (1983) and held that instead the Anguilar-Spinelli two-prong test should be applied. People v Griminger, 71 NY2d 635, 639 (2d Dept., 1988).
"The Anguilar-Spinelli two-prong inquiry has proven a satisfactory method of providing reasonable assurance that probable cause determinations are based on information derived from a credible source with firsthand information, and we are not convinced that the Gates test offers a satisfactory alternative."Griminger, 71 NY2d at 639.
When information from a confidential informant provides part of the basis for probable cause, difficult issues may arise. The People, particularly in the early stages of a criminal proceeding, have a significant interest e.g., in protecting the identity of the confidential informant.[FN5] However, this may severely inhibit the defendant's right to confront and cross-examine the People's witnesses at a suppression hearing. In balancing these countervailing principles, the New York Court of Appeals in People v Darden, 34 NY2d 177 (1974) "established a procedure to verify the testifying officer's credibility while keeping the informant's identity a secret." Edwards, 95 NY2d at 492. The purpose of this in camera inquiry is to ensure that the informant is not "wholly imaginary" and that the information provided by the informant to the police is not "fabricated." Id at 493. As discussed above, because the search warrant in this case was issued in part based on information provided by a CI, the court ordered by its August 27th Decision and Order, an in camera hearing to (a) verify the existence of the CI and to (b) ensure that the information provided by the CI was not fabricated.
When a confidential informant cannot be produced for a Darden Harden, the People must establish that the confidential informant is legitimately unavailable despite the People's due diligent efforts to locate the confidential informant. Edwards, 95 NY2d at 493 citing People v Fulton, 58 NY2d 914, 916. "Although the statute and case law generally list death, illness, incapacity, absence from the jurisdiction, and invocation of the privilege against self-incrimination as the criteria for establishing unavailability, other factors such as fear of physical reprisal may establish practical unavailability' and satisfy the People's burden." People v Carpenito, 80 NY2d 65, 69 (1992); see CPL § 670.10(1); People v Shortridge, 65 NY2d 309, 313 (1985); Richardson, Evidence § 258, 1972-1985 Cum. Supp., at 113-114 (Prince 10th ed); People v Nucci, 162 AD2d 725 (2d Dept, 1990). For the avoidance of doubt, the Court of Appeals has left it to a case by case basis to determine the nature and degree of evidence required to establish the unavailability of the CI. People v Carpenito, 80 NY2d 65, 69 (1992).Unavailability of the CI
Detective Miles testified at the Darden Hearing that the CI told the detective that the CI [*6]no longer wanted to work with the NYPD. Detective Miles further testified that on two separate dates, Detective Miles attempted to contact the CI however the CI's telephone number was no longer is service. Detective Miles testified that he went to the CI's last known address and that the person who answered the door indicated that the CI was no longer at the location and had moved out of the jurisdiction — i.e., "down south." Accordingly, the People have met their burden in establishing that the CI is unavailable for the Darden Hearing.The CI is not wholly imaginary
Having established that the confidential informant is unavailable, the People can then establish the existence of the confidential informant through extrinsic evidence. Carpenito, 80 NY2d. Detective Miles disclosed at the Darden Hearing, the CI's identity and conversations with the CI that were summarized in the Warrant application. Additionally, the People submitted as extrinsic evidence, among other things, a search warrant application from July 24, 2014 where the same CI testified under the penalties of perjury in front of the Honorable Michael Brennan of the Kings County Supreme Court on July 24, 2014 where Justice Brennan found based on the CI's testimony sufficient probable cause for the issuance of a warrant. Accordingly, the court finds that the CI does exist and is not wholly imaginary.(1) Veracity of CI's knowledge
Detective Miles' affidavit presented to Justice Goldberg indicates, and Detective Miles testified that the Darden Hearing, that the CI has provided reliable information on several occasions which resulted in the issuance of a number of narcotics related search warrants, the execution of which had led to the recovery of crack cocaine, marihuana, firearms, and the arrest of various individuals. Accordingly, the first prong of the Anguilar-Spinelli test has been met.(2) Basis of CI's knowledge
There are two ways of verifying an informant's basis of knowledge. "The most reliable is through his own description of underlying circumstances personally observed." Bigelow, 66 NY2d at 423. However, "while it is true that the issuing Judge may examine under oath, any person who possesses pertinent information in order to determine reasonable cause, a Judge is not required to conduct such an examination if he or she is satisfied that the submitted affidavits establish reasonable cause (see CPL 690.40)." People v Israel, 161 AD2d 730, 731 (2d Dept. 1990). The informant's basis of knowledge may also be "verified by police investigation that corroborates the defendant's actions or that develops information consistent with detailed predictions by the informant." Bigelow, 66 NY2d at 423-424.
At the Darden Hearing, Detective Miles testified that he knew the CI went into the target location because (i) the CI told Detective Miles that the CI went into the target location, (ii) the Detective showed the CI a photo array where the CI identified the defendant as the target of the controlled buys, and (iii) that on January 9, 2015, the target location was the only location which was the subject of a search warrant conducted at 191 Riverdale Avenue. Detective Miles further testified that he had conducted two controlled buys with the CI from the defendant prior to the Warrant Application. The buy reports and the Warrant Affidavit unequivocally corroborate [*7]Detective Miles' testimony. Accordingly, the second prong of the Anguilar-Spinelli test has been met. The Warrant was therefore issued on probable cause and the defendant's motion to controvert the search warrant is denied.B. NO-KNOCK WARRANT
When an initial search warrant application alleges that drugs are being sold out of the premises to be searched, an issuing judge may properly infer that these drugs can be easily destroyed, thus providing a sufficient basis for the issuance of a no-knock warrant. See People v DeLago, 16 NY2d 289 (1965), cert. den. 383 U.S. 963; People v Lewis, 25 AD3d 824 (3d Dept, 2006), lv den. 7 NY3d 791 (2006). It is beyond cavil that the issuing judge has authority to issue a search warrant without giving notice of the police officer's authority or purpose if there is "reasonable cause to believe that (i) the property sought may be easily and quickly destroyed or disposed of, or (ii) the giving of such notice may endanger the life or safety of the executing officer or another person " CPL § 690.35(4)(b). In the instant matter, the search warrant application was for the recovery of marijuana which can be easily destroyed or discarded. Therefore, the "no-knock" Warrant issued by Justice Goldberg was properly granted.II. REDACTION OF SEARCH WARRANT MATERIALS
The purpose of the People's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers is "the furtherance and protection of the public interest in effective law enforcement." Roviaro v U.S., 353 U.S. 53, 59 (1957). "The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials, and by preserving their anonymity, encourages them to perform that obligation." Id. However this privilege is not absolute and upon application to the court certain disclosures may be required. Nevertheless, the court has the discretion to prohibit a defendant from eliciting the informant's name or any other information that could reveal the informant's identity. Edwards, 95 NY2d. There is no fixed rule with what should or should not be disclosed but it falls to the court to "balance the flow of information against the individual's right to prepare his defense." Id at 62.
The court reviewed the Warrant Affidavit with the People's proposed redactions which related to the date and times of the CI's interactions with the defendant. In short, the court found that the redacted information could lead to the identification of the CI and is not necessary to describe the basis upon which the Warrant was issued. For the foregoing reasons, the defendant's motion to unveil the redactions of the search warrant materials is denied.III. RESERVATION OF RIGHTS
The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL § 255.20.
The foregoing constitutes the decision and order of the court.