PEOPLE v. GANT (2005)

In disposing of Defendant's motion, the Court has considered the following papers:  Notice of Motion and Affirmation of Edward D. Wilford, Esq., Counsel for Defendant;  affirmation in opposition of Assistant District Attorney Edward D. Saslaw, and Memorandum of Law;  and, the stenographic minutes of the Grand Jury of the State of New York from September 23, 2004.

By indictment number 05-0196, Defendant Charles Gant (“Defendant”) was indicted for the crime of Criminal Possession of a Controlled Substance in the First Degree (NY PENAL Law § 220.21);  and, by indictment 04-0959, Defendant was charged with one count of Criminal Possession of a Controlled Substance in the First Degree (NY PENAL Law § 220.21), and one count of Conspiracy in the Second Degree (NY PENAL Law § 105.15).   By order dated March 25, 2005, the Honorable Sam D. Walker, JCC, consolidated both indictments.   By Notice of Motion dated May 1, 2005, Defendant moved for various relief.   This Court shall address Defendant's requests in seriatim:

1. Motion to Inspect and Dismiss or Reduce Indictment;

Motion to Dismiss Defective Grand Jury Proceedings.

Defendant moves this Court to inspect the grand jury minutes and, upon such inspection, seeks the dismissal or reduction of counts charged in the instant indictment, challenging the legal sufficiency of the evidence presented and the propriety of the legal instructions provided.

Preliminarily, this Court grants Defendant's motion insofar as it seeks an in-camera inspection of the grand jury minutes, yet denies same to the extent that it seeks disclosure of those minutes to Defendant, as the determination of the instant motion does not require such disclosure.   Matter of Brown v. LaTorella, 229 A.D.2d 391, 645 N.Y.S.2d 508 (2d Dep't 1996);  Matter of Brown v. Rotker, 215 A.D.2d 378, 625 N.Y.S.2d 643 (2d Dep't 1995).

 Following an in-camera review of the grand jury minutes, this Court finds that the evidence presented before the grand jury was legally sufficient to support the crimes charged in the instant indictment.   In considering a motion to dismiss an indictment pursuant to NY Crim. Proc. Law § 210.20(1)(b), the relevant inquiry concerns the legal sufficiency of the evidence, not the weight or adequacy of the proof presented.   See People v. Galatro, 84 N.Y.2d 160, 615 N.Y.S.2d 650, 639 N.E.2d 7 (1994).   Legally sufficient evidence has been defined as competent evidence which, if accepted as true, would establish the Defendant's commission of each and every element of each offense charged.  NY Crim. Proc. Law § 70.10(1);  see also People v. Jensen, 86 N.Y.2d 248, 630 N.Y.S.2d 989, 654 N.E.2d 1237 (1995);  People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).   In the context of grand jury procedure, this has been held to mean proof of a prima facie case, not proof beyond a reasonable doubt.   See People v. Gordon, 88 N.Y.2d 92, 643 N.Y.S.2d 498, 666 N.E.2d 203 (1996);  People v. Mikuszewski, 73 N.Y.2d 407, 541 N.Y.S.2d 196, 538 N.E.2d 1017 (1989).   Moreover, the Court, in evaluating the sufficiency of the evidence, must determine whether the evidence, when viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury.   See People v. Swamp, 84 N.Y.2d 725, 622 N.Y.S.2d 472, 646 N.E.2d 774 (1995);  People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447 (1984).

Based upon an in-camera review of the grand jury minutes, this Court finds that the competent evidence presented, when viewed in the light most favorable to the People, if unexplained and uncontradicted, was legally sufficient to establish Defendant's commission of the elements of each charged offense.

 To the extent Defendant moves this Court to dismiss the instant indictment due to the alleged inadequacy of legal instructions provided to the grand jurors during the presentation of this matter, the Court recognizes that a grand jury need not be instructed with the same degree of precision that is required when the Court instructs a petit jury.  People v. Calbud, 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140 (1980);  People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418 (1984).   Accordingly, this Court finds that the legal instructions provided to the grand jurors by the assistant district attorney were adequate and complete.

To the extent that Defendant's application can be understood to seek dismissal of the instant indictment upon allegations concerning defects in the grand jury proceedings, this Court finds that the grand jury proceedings were conducted in conformity with the requirements of NY Crim. Proc. Law § 190.   Furthermore, the Court finds that Defendant's failure to present any factual allegations concerning the specific bases of the present application is insufficient to overcome the presumption of regularity that attaches to grand jury proceedings.  People v. Dominique, 90 N.Y.2d 880, 661 N.Y.S.2d 597, 684 N.E.2d 27 (1997);  Virag v. Hynes, 54 N.Y.2d 437, 446 N.Y.S.2d 196, 430 N.E.2d 1249 (1981).

Based upon the foregoing, and this Court's review of the grand jury minutes, Defendant's application seeking the dismissal or reduction of the counts charged in the instant indictment is denied.

2. Motion to Suppress Evidence Obtained As a Result of Eavesdropping Warrants

Defendant has moved to suppress the “information” obtained as a result of the eavesdropping warrants obtained by law enforcement in this matter, asserting that they are fruit of the poisonous tree, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (Affirmation of Edward D. Wilford, Esq., p. 12).   More specifically, Defendant asserts, inter alia, that (i) the warrants were not issued upon probable cause;  (ii) the warrants did not meet the “other investigative procedures” requirement of NY Crim. Proc. Law § 700;  (iii) with respect to the confidential informants utilized by law enforcement to establish probable cause in connection with the search warrant applications at issue, the People failed to demonstrate that said confidential informants were reliable and had a basis of knowledge;  (iv) the information contained in the affidavits in support of the issuance of the warrants was stale;  (v) law enforcement did not conduct the eavesdropping in a manner to minimize the interception of communications, and therefore the warrants at issue were not issued in conformity with NY Crim. Proc. Law § 700. 30(7);  (vi) pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 (1965), a hearing is required to challenge law enforcement's statements contained in the warrant applications;  and, (vii) the warrant applications are improper “spin-off”, that is, when law enforcement shifted its focus to Charles Gant from the persons originally identified in the initial warrants signed by the various Justices, there was no attempt to conduct an independent investigation to determine the necessity of eavesdropping warrants with respect to Defendant.

The People have opposed Defendant's motion asserting that the Court's review of the warrant applications will reveal that each application demonstrated both the necessity for an eavesdropping warrant and the probable cause to believe a wiretap would intercept communications concerning the crimes indicated.   The People further assert that there is no merit to Defendant's claims that the warrant applications were inadequate in describing law enforcement's efforts to utilize other investigative techniques, and set forth reasons why other investigative techniques would have failed (People's Memorandum of Law, Point II).

This Court has reviewed the warrant applications at issue and has considered Defendant's arguments with respect thereto, mindful that a Court issuing a warrant is vested with considerable discretion in determining the sufficiency of the application.  People v. Tambe, 71 N.Y.2d 492, 527 N.Y.S.2d 372, 522 N.E.2d 448 (1988);  People v. Baker, 174 A.D.2d 815, 570 N.Y.S.2d 857 (3d Dep't 1991);  People v. Ianniello, 156 A.D.2d 469, 548 N.Y.S.2d 755 (2d Dep't 1989).   At the outset, this Court finds that the warrants at issue were based upon probable cause.   In addition, each warrant detailed the necessity for its issuance, and the reasons why normal investigative procedures were unlikely to succeed.   Accordingly, Defendant's assertion that the warrants did not issue upon probable cause, and that the warrants did not meet the “other investigative procedures” requirement of NY Crim. Proc. Law § 700 are without merit.  People v. Fonville, 247 A.D.2d 115, 681 N.Y.S.2d 420 (4th Dep't 1998);  NY Crim. Proc. Law §§ 700. 10(1), 700.15(2)(3)(4).

 Turning to Defendant's arguments concerning law enforcement's use of confidential informants in this matter, it is well-established that information supplied by a confidential informant may be sufficient to establish probable cause for a search warrant where it is shown that the informant has a basis of knowledge and the informant is reliable.  Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964);  People v. Rodriguez, 52 N.Y.2d 483, 438 N.Y.S.2d 754, 420 N.E.2d 946 (1981);  People v. Alston, 1 A.D.3d 627, 766 N.Y.S.2d 724 (3d Dep't 2003).   With respect to Defendant's assertions concerning the reliability of confidential informants referenced in the warrant applications, this Court finds that (i) confidential informants were referenced in the warrant applications to demonstrate that other investigative techniques were not likely to succeed;  and, (ii) to the extent that the People relied upon confidential informants to establish probable cause for the issuance of the warrants, the People met their burden in establishing the reliability of the confidential informant in each warrant application.   Accordingly, Defendant has failed to meet his burden to demonstrate that a hearing is necessary concerning the reliability of the confidential informants utilized in this case.  Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969);  Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964);  People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 (1985);  People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439 (1985);  People v. Landy, 59 N.Y.2d 369, 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185 (1983).

 This Court also rejects Defendant's contention that the affidavits were based upon stale evidence.   Probable cause is not determined simply by counting the number of days between the occurrence of the events relied upon and the issuance of the search warrant.  People v. Clarke, 173 A.D.2d 550, 570 N.Y.S.2d 305 (2d Dep't 1991), citing, People v. Teribury, 91 A.D.2d 815, 458 N.Y.S.2d 85 (3d Dep't 1982).   Information relied upon in applying for a search warrant may be acted upon as long as the practicalities dictate that a state of facts existing in the past, which is sufficient to give rise to probable cause, continues to exist at the time the application for a search warrant is made.  Id.;  see also United States v. Brinklow, 560 F.2d 1003 (10th Cir.1977), cert. denied 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978);  United States v. Rahn, 511 F.2d 290 (10th Cir.1975), cert. denied 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975).

In this case, the Court finds that the affidavits submitted in support of law enforcement's application for the search warrants at issue were based upon an observed pattern of drug activity, and detailed the length of law enforcement's investigation.   The information presented to the various Justices who issued the search warrants, when considered as a whole, was not stale and provide the probable cause necessary for the issuance of each warrant.  People v. Manngard, 275 A.D.2d 378, 712 N.Y.S.2d 582 (2d Dep't 2000);  People v. Williams, 249 A.D.2d 343, 670 N.Y.S.2d 893 (2d Dep't 1998);  People v. Telesco, 207 A.D.2d 920, 616 N.Y.S.2d 773 (2d Dep't 1994);  People v. Adams, 2 Misc.3d 166, 766 N.Y.S.2d 765 (County Court, Niagara Co.2003).

 Next, this Court denies Defendant's request for a hearing to challenge the veracity of law enforcement's statements contained in the warrant applications pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 (1965).   A Franks/Alfinito hearing is warranted where a Defendant makes a substantial preliminary showing that there is a false statement included in a search warrant affidavit, and that the officer included the information with knowledge or reckless disregard of its falsity.  Franks, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667;  Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644.   Upon a review of the submissions in connection with this motion, Defendant has failed to make the required substantial preliminary showing that would warrant a Franks/ Alfinito hearing.  People v. Novick, 293 A.D.2d 692, 740 N.Y.S.2d 641 (2d Dep't 2002);  People v. Panaro, 167 A.D.2d 951, 561 N.Y.S.2d 1015 (4th Dep't 1990).   Accordingly, Defendant's motion for a Franks/Alfinito hearing is denied.

Defendant's next argument is that the eavesdropping warrants at issue did not meet the minimization requirements contained in NY Crim. Proc. Law § 700.30(7), which requires that an eavesdropping warrant must contain a provision that the authorization to intercept shall be conducted in such a way as to minimize the interception of communications not otherwise subject to eavesdropping under the Criminal Procedure Law.  NY Crim. Proc. Law § 700.30(7).   Minimization has been defined as a good faith and reasonable effort to keep the number of nonpertinent calls intercepted to the smallest practicable number.  People v. Floyd, 41 N.Y.2d 245, 392 N.Y.S.2d 257, 360 N.E.2d 935 (1976).   This Court has analyzed Defendant's contentions and the parties' submissions and has determined that Defendant has failed to satisfy his burden to demonstrate that the eavesdropping warrants did not meet the requirements set forth in NY Crim. Proc. Law § 700.30(7).

 The Court now turns to Defendant's contention that “ [w]hen law enforcement shifted its focus to Charles Gant there was no attempt to conduct an independent investigation to determine if the necessity for the extraordinary investigative tool of eavesdropping existed with respect to Charles Gant”, and therefore law enforcement acted improperly in obtaining “spin-off” eavesdropping warrants for Charles Gant (Affidavit of Edward Wilford, Esq., p. 59).   To the extent Defendant asserts that law enforcement improperly shifted its focus from the persons originally identified in the initial warrants signed by the various Justices to whom said applications were presented, Defendant's contentions are without merit.   As stated herein, each warrant at issue in this case was duly issued and based upon probable cause.   In addition, Defendant's reliance on United States v. Blackmon, 273 F.3d 1204 (9th Cir.2001) is misplaced.   In Blackmon, the Court held that evidence resulting from the eavesdropping warrants should have been suppressed where the affidavit submitted in support of the warrant contained material misstatements and omissions concerning the necessity for the wiretap and the affidavits contained only generalized statements in support of the need for such wiretap.   No such showing has been made by Defendant in this case.   Accordingly, Defendant's contentions concerning improper “spin-off” are unfounded.

Lastly, to the extent that Defendant has moved to suppress evidence, or in the alternative, for a Mapp hearing, said motion is denied since Defendant has failed to allege sworn allegations of fact sufficient to support the motion.   People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017 (1993).   Accordingly, the motion for outright suppression, as well as the alternative request for a hearing is denied.  NY Crim. Proc. Law § 710.60(3)(b).

3. Defendant's Motion For the Suppression of Evidence Resulting From Law Enforcement's Installation of a GPS Device.

Defendant moves to suppress any and all evidence obtained as a result of the use of a Global Positioning System (“GPS”) device placed on an RV bearing the likeness of Gloria Velez, referred to as the Hurricane, asserting that the device was used by law enforcement without a warrant in contravention of Article 1 § 12 of the New York State Constitution, Article 700 of the Criminal Procedure Law, and the Fourth and Fourteenth Amendment of the United States Constitution (Affirmation of Edward D. Wilford, Esq., p. 66).   Defendant relies upon People v. Lacey, 3 Misc.3d 1103(A), 787 N.Y.S.2d 680 (Nassau Co.2004), the only reported New York State decision pertaining to the issue of whether law enforcement must obtain a search warrant prior to installing a GPS device to track the movements of a vehicle on public roadways.   The People oppose Defendant's motion asserting that Defendant does not identify the evidence he seeks to suppress, nor does he assert a property interest or a “reasonable expectation of privacy” in the vehicle to which he is referring, and therefore his motion is to be denied (People's Memorandum of Law, Points III and IV).

 Defendant's motion to suppress evidence obtained as a result of the use of the GPS device is denied.   It is well established that where there is no expectation of privacy, there is no search and seizure within the purview of the Fourth Amendment.  U.S. v. Moran, 349 F.Supp.2d 425 (N.D.N.Y.2005).   A Defendant seeking the suppression of evidence must therefore demonstrate a legitimate expectation of privacy in the place or property searched.  People v. Tejada, 81 N.Y.2d 861, 597 N.Y.S.2d 626, 613 N.E.2d 532 (1993);  People v. Wesley, 73 N.Y.2d 351, 540 N.Y.S.2d 757, 538 N.E.2d 76 (1989).

Defendant asserts the following in support of his argument that he has standing:  “Notwithstanding the fact that Charles Gant was the true owner of the vehicles, these vehicles were often registered in the name of other persons.   Indeed, that was the case with the Hurricane RV with Gloria Velez' likeness on it.   Thus, Charles Gant as the true owner of the vehicle has standing.” ¹  (Affirmation of Edward D. Wilford, Esq., p. 78).

This Court finds that Defendant has failed to establish a legitimate expectation of privacy in the place or property searched sufficient to satisfy the Fourth Amendment standing requirement for purposes of a motion to suppress.  U.S. v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983);  Moran, 349 F.Supp.2d 425.   Accordingly, law enforcement was not required to obtain a warrant prior to utilizing a GPS device to track the movement of the vehicle at issue.

 It should be noted at the outset that Defendant has failed to demonstrate that he is in fact the owner of the vehicle, or that he was a passenger in the vehicle with some reasonable expectation of privacy in the vehicle itself.   See e.g., People v. Nunez, 234 A.D.2d 569, 651 N.Y.S.2d 192 (2d Dep't 1996);  People v. Cacioppo, 104 A.D.2d 559, 479 N.Y.S.2d 264 (2d Dep't 1984);  People v. Lucas, 183 Misc.2d 639, 704 N.Y.S.2d 779 (Sup.Ct. Monroe Co.1999).   Accordingly, to the extent that Defendant may assert that he has standing because he is the owner of the vehicle, or he was a passenger in the vehicle with an expectation of privacy, such contention is without merit.

 With respect to any assertion that Defendant has a reasonable expectation of privacy in the movements of the vehicle, the Supreme Court has held that a person traveling on a public roadway has no reasonable expectation of privacy in his movements from one place to another.  Knotts, 460 U.S. at 276, 103 S.Ct. at 1081, 75 L.Ed.2d at 55.   In Knotts, law enforcement agents arranged with a seller of chloroform to install a beeper in a container of chloroform purchased by Respondent Knotts' co-defendant, since law enforcement suspected that the co-defendant was purchasing chloroform to manufacture drugs.   After Knotts' co-defendant purchased the container of chloroform containing the beeper and placed it in his vehicle, law enforcement followed the car and traced the vehicle's movements by visual surveillance and a monitor that received the beeper signals contained in the container.   Law enforcement then traced the chloroform to Knotts' cabin by beeper signal alone.   Law enforcement subsequently obtained a search warrant for Respondent's residence and discovered the chloroform container as well as other evidence.  Knotts, 460 U.S. at 276, 103 S.Ct. at 1081, 75 L.Ed.2d at 55.

In connection with Knotts' challenge to the use of the beeper to monitor the chloroform container, the Supreme Court held that the monitoring of a beeper placed in a container in Defendant's vehicle was not a search and seizure within the meaning of the Fourth Amendment since Defendant had no legitimate expectation of privacy in the monitoring of the vehicle on public streets and thoroughfares. The Court stated that the surveillance conducted in Knotts amounted to the following of an automobile on public streets and highways and that there is a diminished expectation of privacy with regard to automobiles:

One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects.   A car has little capacity for escaping public scrutiny.   It travels upon public thoroughfares where both its occupants and its contents are in plain view.

Knotts, 460 U.S. at 281, 103 S.Ct. at 1085, quoting Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974).

 In short, the Supreme Court in Knotts stated that a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.²  Id. Similarly, in Moran, 349 F.Supp.2d 425, the United States District Court for the Northern District of New York, relying upon Knotts, recently held that a warrant is not required where law enforcement installs a GPS device on a vehicle to track its movements.   The Court therefore denied Defendant's motion to suppress evidence obtained as a result of law enforcement's installation of a GPS device attached to his vehicle.  U.S. v. Moran, 349 F.Supp.2d at 467-68.   As the Court stated:

The GPS device traced the whereabouts of [defendant's] vehicle on July 29 and 30, 2003, upon his return from a one-day trip to Arizona.   Law enforcement personnel could have conducted a visual surveillance of the vehicle as it traveled on the public highways.   Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway.   Thus, there was no search or seizure and no Fourth Amendment implications in the use of the GPS device.

Moran, 349 F.Supp.2d at 467-68.

The same result is mandated in this instance.   Based upon the reasoning set forth in Knotts and Moran, this Court finds that Defendant has not established that he has a legitimate expectation of privacy in a vehicle traveling upon a public roadways such that law enforcement was required to obtain a search warrant prior its installation of a GPS device to track the vehicles' whereabouts.  Knotts, 460 U.S. at 280, 103 S.Ct. at 1085;  Moran, 349 F.Supp.2d at 467-68.

In addition, this Court finds no greater privacy interest is afforded to a vehicle traveling upon a public roadway under the New York State Constitution, than that which is afforded under the United States Constitution.   In the same vein as our Federal Courts, New York State Courts have held that there is a diminished expectation of privacy inherent in automobiles due to their mobility, and to the fact that vehicles are subject to various laws and regulations.³  As the Court of Appeals has stated:

A separate exception to the warrant requirement is that recognized with respect to automobiles.   Its predicate is the reduced expectation of privacy associated with automobiles and the inherent mobility of such vehicles (see Cady v. Dombrowski, 413 U.S. 433, 442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973);  see, generally, 2 La Fave, Search and Seizure, pp. 508-544).   As the Supreme Court has noted, “the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property” (Arkansas v. Sanders, 442 U.S. 753, 761, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)).   Among the factors that contribute to this decreased expectation are that automobiles “operate on public streets;  they are serviced in public places;  * * * their interiors are highly visible;  and they are subject to extensive regulation and inspection” (Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979) [Powell, J., concurring];  see South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976);  Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) [plurality opn.] ).   In addition, the mobility of automobiles often makes it impracticable to obtain a warrant (see United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977);  Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)).

People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982).

In short, New York decisional law, and the statutory regulation of vehicles referenced herein, leads to the inescapable conclusion that there is no reasonable expectation of privacy in the movements of a motor vehicle traveling upon public roadways such that law enforcement is required to obtain a warrant under New York State law prior to installing a GPS device when investigating crime.   For example, a police officer need not have a warrant to search a vehicle if, after a stop, such search is based upon reasonable cause to believe that an individual has committed, or may commit, a crime.  People v. Williams, 173 A.D.2d 663, 570 N.Y.S.2d 237 (1991).   In addition, roadblocks established as sobriety checkpoints are constitutionally permissible when they are carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.  People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1 (1984);  People v. Richmond, 174 Misc.2d 40, 662 N.Y.S.2d 998 (Monroe Co. Court 1997).   Similarly, roving roadblocks, when conducted in a uniform and nondiscriminatory manner, to obtain information in connection with crime investigation are constitutionally permissible.   People v. BB, 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864 (1982).   Nor is there a reasonable expectation of privacy in objects in a vehicle that are in “plain view” for all to see, and thus, the warrantless seizure of an object that comes into an officer's plain view when one is lawfully stopped in his vehicle is constitutionally permissible.  People v. White, 300 A.D.2d 1149, 752 N.Y.S.2d 771 (4th Dep't 2002) (trial court properly admitted into evidence a gun that was on defendant's lap and that came into police officer's view during a traffic stop).   Therefore, due to the well-recognized diminished expectation of privacy inherent in motor vehicles, this Court finds that no search warrant is required where law enforcement seeks to install a GPS device to monitor a vehicle's location.

The recent Nassau County case Lacey, 3 Misc.3d 1103(A), 787 N.Y.S.2d 680, does not compel a contrary result.⁴  In Lacey, the Court held that although law enforcement must obtain a warrant prior to the installation of a GPS device, Defendant therein had no legitimate expectation of privacy in the vehicle itself since the GPS was not installed on his property and he, “at best, [based] his claim for relief on the rights of a third party.”  Lacey, 3 Misc.3d 1103(A), 787 N.Y.S.2d at 685.   The Lacey Court therefore held that defendant therein had no standing to assert that the evidence resulting from GPS monitoring on the vehicle should be suppressed.   Likewise, Defendant herein has failed to establish a reasonable expectation of privacy in the vehicle, or in the vehicle's whereabouts;  particularly if the Defendant did not travel in the vehicle.   Accordingly, for the reasons set forth herein, Defendant's motion to suppress evidence resulting from law enforcement's installation of a GPS device is denied.

4. Motion For Sandoval and Ventimiglia Hearings.

Defendant moves this Court to conduct a pre-trial hearing to determine the extent to which the People may inquire into any of Defendant's prior criminal convictions, as well as any of Defendant's prior uncharged criminal, vicious or immoral conduct.   The People consent to Defendant's application.   This Court therefore orders that, immediately prior to trial, a hearing be conducted pursuant to People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974).   At the time of the hearing, the People shall notify Defendant of all specific instances of Defendant's prior uncharged criminal, vicious or immoral conduct of which they have knowledge and intend to use for impeaching Defendant's credibility in the event Defendant testifies at trial.  NY Crim. Proc. Law § 240.43.   Defendant must then sustain his burden to inform the Court of those instances of his prior misconduct that may be unduly prejudicial to him as a witness on his own behalf.  People v. Matthews, 68 N.Y.2d 118, 506 N.Y.S.2d 149, 497 N.E.2d 287 (1986);  People v. Malphurs, 111 A.D.2d 266, 269, 489 N.Y.S.2d 102 (1985).

Defendant's application for a pre-trial hearing pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981), is denied without prejudice.   Defendant's application is premature, since the People have not yet advised the Court that they intend to introduce evidence of Defendant's prior uncharged crimes on their direct case.   Nonetheless, upon appropriate application by the People, and upon notice to Defendant, a Ventimiglia hearing shall be conducted immediately prior to trial to prospectively determine the admissibility of evidence of Defendant's prior uncharged crimes on the People's case-in-chief.

5. Defendant's Motion to Dismiss Based Upon Improper Venue.

 Defendant moves this Court to dismiss the first count of the indictment, Criminal Possession of a Controlled Substance in the First Degree, asserting that venue is not proper in Westchester County (Affirmation of Edward D. Wilford, Esq., p. 83).   The People have opposed Defendant's motion asserting that the grand jury minutes show more than adequate evidence to meet the People's trial burden to establish geographical jurisdiction by a preponderance of the evidence (People's Memorandum of Law points I and V).

Defendant's motion to dismiss based upon improper venue is denied. County jurisdiction over a conspiracy is governed by Article 20 of the New York Criminal Procedure Law.   A person may be convicted in an appropriate criminal court of a particular county of an offense of which the criminal courts of this state have jurisdiction, when conduct occurred within such county sufficient to establish an attempt or conspiracy to commit such offense.  NY Crim. Proc. Law § 20.40(1)(b).

Additionally, a person may be convicted in an appropriate criminal court of a particular county even though none of the conduct constituting such offense may have occurred within such county, where the offense committed was attempt, conspiracy or criminal solicitation to commit a crime in such county.  NY Crim. Proc. Law § 20.40(2)(d).

Pursuant to Article 20 of the New York Criminal Procedure Law, the People may prosecute the object crime of a conspiracy in any jurisdiction in which a Defendant engages in conduct sufficient to establish a conspiracy to commit that crime.   Therefore, the conspiracy may be used as a basis for prosecuting a crime committed outside the jurisdiction.  Faraci v. Firetog, 308 A.D.2d 423, 764 N.Y.S.2d 188 (2d Dep't 2003);  People v. Green, 235 A.D.2d 284, 652 N.Y.S.2d 952 (1st Dep't 1997);  NY Crim. Proc. Law § 20.40(1)(b), § 20.40(2)(d).

Based upon the submissions of the People and Defendant, the Grand Jury minutes, and existing case law, the Court finds that Defendant has failed to show that venue is not proper in Westchester County in that there is sufficient evidence by which the People may establish at trial, by a preponderance of the evidence, that the offenses charged in the indictments herein are properly venued in Westchester County.  People v. Ribowsky, 77 N.Y.2d 284, 567 N.Y.S.2d 392, 568 N.E.2d 1197 (1991);  People v. Sosnik, 77 N.Y.2d 858, 568 N.Y.S.2d 340, 569 N.E.2d 1019 (1991).

 Whether or not the People will in fact be able to meet their burden at trial is, of course, a separate issue since venue is a question of fact that must be proved by the People at trial by a preponderance of the evidence.   People v. Giordano, 87 N.Y.2d 441, 640 N.Y.S.2d 432, 663 N.E.2d 588 (1995);  People v. Hetenyi, 304 N.Y. 80, 106 N.E.2d 20 (1952).   Indeed, Defendant may challenge venue at trial by requesting that the jury be instructed regarding venue, in which case the Court must submit the issue of venue to the jury.  Ribowsky, 77 N.Y.2d at 292, 567 N.Y.S.2d at 397, 568 N.E.2d at 1202.   Nonetheless, at this stage of the proceedings, based upon the parties' submissions, the Court finds that there is sufficient evidence by which the People may prove that the offenses charged in the indictment are properly within the jurisdiction of Westchester County.  People v. Green, 235 A.D.2d 284, 652 N.Y.S.2d 952 (1st Dep't 1997);  People v. Manfredi, 166 A.D.2d 460, 560 N.Y.S.2d 679 (2d Dep't 1990);  People v. Botta, 100 A.D.2d 311, 474 N.Y.S.2d 72 (2d Dep't 1984).   Accordingly, Defendant's motion to dismiss on the basis of venue is denied.

6. Reservation of Rights To Make Additional Motions

In his notice of motion, Defendant seeks permission to make additional motions as may be required.   This application is denied.  NY CRIM. PROC. Law § 255.20(1) mandates that all pre-trial motions be brought in one set of motion papers within forty-five (45) days of arraignment.   This ruling is made without prejudice to Defendant making any additional motions, provided he can demonstrate that he could not, with due diligence, have raised the ground for the relief sought in the original motion papers.  NY CRIM. PROC. Law § 255.20(3).

The foregoing shall constitute the decision and order of the Court.

FOOTNOTES

1.   Defendant also asserts:  “Further, the theory of prosecution is constructive possession by Charles Gant of the cocaine secreted in the Hurricane RV, thus Charles Gant has standing based on the theory of prosecution.”  (Affirmation of Edward D. Wilford, Esq., p. 78).

2.   Since the Supreme Court has held that a person traveling in a vehicle has no reasonable expectation of privacy in his movements from one place to another, then surely a person who asserts a Fourth Amendment claim in a vehicle's movements in which he is not a passenger likewise has no reasonable expectation of privacy.   In this case, Defendant Gant did not assert that he traveled in the vehicle in question.

3.   For example, vehicles are subject to regular registration and inspection under New York State Law. Laws have been enacted that require drivers and passengers to wear seatbelts or be subject to a traffic infraction for failing to do so.   Vehicles are tracked by radar in connection with speed enforcement.   The diminished expectation of privacy Courts have recognized with respect to automobiles arises, in part, from these factors.  People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982).

4.   In addition to the reasons set forth herein, the Lacey decision is not dispositive because, as noted by the United States District Court in Moran, the Lacey Court failed to reconcile its holding with Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55.  Moran, 349 F.Supp.2d at 467-68.

RORY J. BELLANTONI, J.