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The PEOPLE of the State of New York, Plaintiff, v. Maria Jane GOMEZ, Defendant.
Defendant's omnibus motion is decided as follows:
MOTION TO SUPPRESS PHYSICAL EVIDENCE—DENIED
Defendant is charged in the accusatory instrument with committing the crime of Possession of Gambling Records in the Second Degree [PL § 225.15(2) ]. The misdemeanor information sworn to by P.O. Anaritza Gonzalez alleges that on or about September 8, 2017 at approximately 4:10 P.M., a search warrant issued by the Honorable Cori Weston was executed inside of 401 East 167th Street in the County of the Bronx and defendant was observed sitting in the back room of the location at a desk typing on a laptop computer. It is further alleged that the officer observed the laptop computer to be displaying programs regarding the Dominican lottery and that the laptop computer, printer, keypad and twelve (12) Dominican Republic lottery wager slips were recovered by the police.
Defendant now moves to suppress physical evidence or in the alternative, for a Mapp/Dunaway hearing.
In support of her motion to challenge the seizure of the property recovered defendant claims that she has standing because she was working at the commercial establishment as a “receptionist” and the property seized was recovered from a desk at which she was sitting and typing on a laptop computer.
The People, in opposition to defendant's motion, contend that defendant does not have standing to challenge the seizure of the property and in any event, the evidence was recovered pursuant to the execution of a valid search warrant.
After reviewing the submissions of the parties, the search warrant documents and the court transcript made in connection with the issuance of the search warrant, the branch of defendant's motion to suppress physical evidence is decided as follows:
In order to seek suppression of physical evidence defendant must first establish standing, that “․ she had a legitimate expectation of privacy in the place or item that was searched. The suppression court must identify the object of defendant's expectation of privacy, determine whether defendant exhibited an expectation of privacy in it, and evaluate whether the circumstances would lead society to regard defendant's expectation of privacy as reasonable. If the court determines that defendant had a legitimate expectation of privacy in the item searched, standing to challenge the legality of the police conduct is established”, People v. Ramirez–Portoreal, 88 NY2d 99.
Here, defendant has failed to allege sufficient facts to establish that she had a legitimate expectation of privacy in the property that was seized from the commercial premises. Although, defendant alleges that she worked at the subject location as a “receptionist,” generally, “․commercial premises are used by the employee for the benefit of the employer,” People v. Norberg, 136 Misc 2d 550. Moreover, in the instant matter, defendant does not allege (1) that she was the manager of the business or that she had any supervisory powers over any employees (see People v. Johnson, 209 AD2d 721); (2) that she had any ownership or proprietary rights with respect to the desk or the computer (see People v. Herman, 144 AD2d 485); (3) that the back room was an office for her exclusive use or that she kept personal property at or near the desk in which she sat (see People v. Johnson, supra; People v. Gordon, 128 Misc 2d 1030) or (4) that she “slept there [at the commercial premises] or inhabited that area in a manner sufficient to give rise to a legitimate expectation of privacy”, People v. Norberg, supra; (see also People v. Donaldson, 209 AD2d 933). Therefore, based on the foregoing, defendant has not demonstrated the requisite standing to challenge the seizure of the property pursuant to the execution of the search warrant.
In any event, assuming arguendo, defendant had standing to contest the search warrant, a review of the transcript of the court proceedings relating to the issuance of the search warrant reveals that on September 6, 2017 at approximately 4:02 P.M., a confidential informant appeared before Judge Cori Weston and provided information under oath in support of the search warrant issued. It is well settled that the Aguilar–Spinelli test, which examines the reliability and basis of knowledge of an informant, is not applicable where, as here, the information provided to the judge came directly from the confidential informant, rather than hearsay information relayed by a police officer (see People v. Taylor, 73 NY2d 683;People v. Tordella, 37 AD3d 500; People v. Pratt, 266 AD2d 318).
Further, the minutes indicate that after Judge Weston interviewed the confidential informant she determined that probable cause existed to issue the search warrant. Thus, a presumption of validity attaches to the search warrant since there has already been a judicial review as to its justification (see People v. Castillo, 80 NY2d 578). Moreover, this Court's inspection of the search warrant documentation pertaining to this matter together with the transcripts of the court proceedings relating to it demonstrate that it could reasonably be concluded that probable cause existed for the issuance of the search warrant (see People v. Traymore, 241 AD2d 226, citing People v. Ortiz, 234 AD2d at 75–76).
Accordingly, inasmuch as the physical evidence recovered was seized pursuant to the lawful execution of a valid search warrant, the branch of defendant's motion to suppress the physical evidence pursuant to its execution is denied.
DEFENDANT'S REMAINING MOTIONS
Defendant's motion for suppression of statements, or in the alternative, for a Huntley hearing, is granted to the extent that a Huntley hearing is to be held prior to trial.
A Sandoval hearing is to be held immediately prior to trial, if applicable. At or prior to that hearing, the People are to discharge their duty under CPL § 240.43. Additionally, the People are directed to disclose to the defendant the nature of any prior vicious or immoral criminal acts which they intend to introduce against defendant at trial pursuant to CPL § 240.43.
The branch of the motion requesting leave to make further motions, if necessary, after the People provide discovery, is granted. All motions should be made within the time prescribed by the rules of the Court.
PEOPLE'S MOTION FOR A PROTECTIVE ORDER—GRANTED
In response to defendant's motion to suppress physical evidence the People seek a protective order pursuant to CPL § 200.95, permitting them to redact certain portions of the affidavit and court transcript submitted in support of their application for the search warrant. Specifically, they wish to withhold the identify of the informant and any information that could reveal the identity of the informant whose information, in part, led to the arrest of the defendant.
The People state that the redactions are necessary in order to maintain the confidentiality and safety of the informant. Further, they argue that the redaction of certain information relating to the identity of the confidential informant would not prejudice the defendant's ability to ensure that the issuance of the warrant was based on probable cause.
Criminal Procedure Law 240.50(1), states, in pertinent part, that the “court in which the criminal action is pending may․ issue a protective order denying, limiting, conditioning, delaying, or regulating discovery․ for good cause, including a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants․”
Courts have long reasoned that it is often important to maintain the secrecy of an informant's identity and that trial courts have the discretion to prohibit a defendant from eliciting the informant's name or any other information that could reveal the informant's identity, especially at the early stages of a criminal proceeding (see People v. Castro, 29 NY2d 324; People v. Coffey, 12 nY2d 443; McCray v. Illinois, 386 US 300).
Accordingly, in view of the People's concern that the case might be jeopardized if the informant's identity is revealed at this juncture their application for a protective order is granted.
Order entered accordingly.
This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney.
Jeffrey Rosenblueth, J.
Docket No: 2017BX035521
Decided: February 16, 2018
Court: Criminal Court, City of New York,
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