PEOPLE v. ORTIZ (2019)

I. Background

By a motion dated June 24, 2019 and filed with the Court on June 25, 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] Street, Apartment [XXX], Brooklyn, New York (“Location”) on the grounds that the search warrant affidavit (“Affidavit”) was not supported by probable cause. 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”), (2) that the “no-knock” provision of the Search Warrant was unjustified, and (3) that the information provided to the Honorable Nicholas Moye, the issuing judge (“Issuing Judge”) of the Search Warrant, was stale. The Defendant further moved for a Darden hearing pursuant to People v. Darden, 34 NY2d 177 (1974), for a Mapp/Dunaway/Payton hearing (Mapp v. Ohio, 367 US 643 [1961]; Dunaway v. New York, 442 US 200 [1979]; Payton v. New York, 445 US 573 [1980]), and for an unredacted copy of the Affidavit. In addition, the Defendant moved to dismiss the accusatory instrument (“Complaint”) pursuant to CPL 170.30, 170.35 and 100.40 for facial insufficiency and pursuant to CPL 30.30 on speedy trial grounds. The People have submitted an opposition (“Opposition Motion”) dated August 17, 2019 and filed with the Court on August 20, 2019 to Defendant's motion.

II. Defendant's Motion for the Unredacted Affidavit

As to Defendant's motion for an unredacted copy of the Affidavit, on June 4, 2019, this Court 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 Affidavit within seven (7) days. On June 13, 2019, the People complied with said Order and served said copy on defense counsel (Mot. to Controvert at 5). 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.

Defense counsel also requested to review the unredacted search warrant material under seal pursuant to Defendant's authorization (Mot. to Controvert at 8). Defense counsel's such application is denied.

III. Defendant's Motion to Controvert the Search Warrant

With regard to Defendant's motion to controvert the Search Warrant, the Defendant here has failed to establish standing to challenge the evidence recovered pursuant to the execution of the Search Warrant. Indeed, standing is a fundamental and threshold issue which a movant must address. The United States Supreme Court and the New York State Court of Appeals have steadfastly required a defendant to establish his/her standing to challenge the seizure of tangible evidence by demonstrating a reasonable expectation of privacy in the premises searched or the property seized. (Rakas v. Illinois, 439 US 128, 129 [1978]; United States v. Salvucci, 448 US 83, 84 [1980]; People v. Ponder, 54 NY2d 160, 166[1981]; People v. Rodriguez, 69 NY2d 159, 161 [1987]; People v. Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v. Wesley, 73 NY2d 351, 374 [1989]; People v. Scully, 14 NY3d 861, 864 [2010].)

The burden of establishing standing is borne solely by a defendant who seeks to challenge the search or seizure at issue (Ponder, 54 NY2d at 163; Rodriguez, 69 NY2d at 163). Such a showing is necessary because a “person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed” (Rakas, 439 US at 134). Moreover, a defendant bears the burden of establishing that his/her own Fourth Amendment rights are violated by the challenged search and seizure (id. at 131). Here, the Defendant never addressed this issue.

However, in the interest of judicial economy and assuming that the Defendant does have standing based on Court's files, this Court will address Defendant's contentions on their merits. The evidence here is seized pursuant to a lawful Search Warrant issued upon probable cause, supported by oath with an affirmation of Detective Angel Thevenin of the New York City Police Department. The Affidavit indicates that on several occasions a confidential informant bought narcotics from the Location. The reliability of the confidential informant's information is sufficiently demonstrated by personal observations made by the confidential informant and communicated first to Det. Thevenin and then by Det. Thevenin to the Issuing Judge. This Court finds that the Affidavit submitted by Det. Thevenin has satisfied the two-prong test. The veracity prong has been met in light of the fact that the confidential informant, in the past, has given Det. Thevenin information which led to the arrest of individuals for the possession of controlled substances. 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]).

Contrary to Defendant's contention, there is no rule that an informant's reliability can only be established if information previously provided has resulted in a conviction (see People v. West, 92 AD2d 620 [3d Dept 1983]; People v. Calise, 256 AD2d 64 [1st Dept 1998] citing People v. Whitt, 203 AD2d 606 [2d Dept 1994]). Court in Tyrell stated that “there [was] 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. Thevenin 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. Thevenin, under the supervision of Sgt. Brian Gribbin, personally made an independent verification of the Location. These allegations, taken together, demonstrate the reliability of the information.

IV. Darden Hearing

As to Defendant's motion for a Darden hearing, the People contended that a Darden hearing was unnecessary because “Detective Massa represented himself to the court as to have spoken to the confidential informant on numerous occasions” (Opposition Mot. at 6). The People further contended that “the sworn affidavit state[d] that numerous other officers, including Sergeant Lauryl Phillip, Sergeant Michael Weber, and Detective Frank Galati conversed with the confidential informant and were present for the confidential informant's purchases of marijuana at the target location and had had conversations with the confidential informant regarding the target location and purchases made at the target location” (Opposition Mot. at 6-7).

Contrary to People's contention, neither Det. Massa's name nor any of the police officers mentioned in the Opposition Motion appears in the Affidavit. The Court of Appeals has held that a Darden hearing is necessary where there is insufficient evidence to establish probable cause without information provided by a confidential informant (People v. Crooks, 27 NY3d 609 [2016]). “[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].) Accordingly, Defendant's motion for a Darden hearing is granted. The Defendant may submit questions for the Court to pose to the informant during its ex parte examination.

V. Stale Information, “No-Knock” Provision, and Cell Phone Seized

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. Having reviewed the unredacted Search Warrant application, 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]).

The Court also finds that the “no-knock” provision in the Search Warrant was justified by the evidence presented to the Issuing Judge because the type of evidence to be seized could be easily destroyed or removed and safety may been dangered by giving notice (CPL 690.35 [4] [b]).

Defendant's contention that the “police officers executing the search warrant ․ went beyond the warrant's terms and executed the warrant in an unreasonable manner when they seized a cellphone” (Mot. to Controvert at 21) is without merit. The items to be seized pursuant to the Search Warrant was adequately described, i.e., “heroin, Fentanyl, vials, caps, glassine envelopes, small ziplock-style bags, and other evidence of the possession and distribution of heroin, including but not limited to paraphernalia used to process and distribute drugs, including but not limited to dilutants and scales, counter-surveillance equipment, and records and documents reflecting drug transactions including in electronic and digital format ․” (Search Warrant). A cell phone is included in the “electronic and digital” category pursuant to the Search Warrant as foregoing described.

VI. Mapp/Dunaway/Payton Hearing

Defendant's motion to suppress tangible evidence seized and testimonial evidence as fruit of an illegal search and seizure or for a Mapp/Dunaway/Payton hearing (Mapp v. Ohio, 367 US 643; Dunaway v. New York, 442 US 200; Payton v. New York, 445 US 573) is denied. This Court, having determined above that the Search Warrant, as issued, was based upon probable cause, the subsequent entry into the Location and the tangible property seized were made pursuant to that valid Search Warrant. Accordingly, Defendant's motion to suppress tangible property seized or for a Mapp/Dunaway/Payton (id.) hearing is denied.

VII. Facial Sufficiency

The Defendant contended that the Complaint was jurisdictionally insufficient because it did not include sufficient factual allegations to make out the charge of criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03. Specifically, the Defendant argued that the Complaint failed to state non-conclusory facts showing that the police officer had reasonable cause to believe that the Defendant knowingly possessed twenty (20) glassine envelopes of heroin.

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 “alleg[e] 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 or information, “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]). A misdemeanor information must also contain “[n]on-hearsay allegations ․ [which] establish, if true, every element of the offense charged and the defendant's commission thereof” (CPL 100.40 [1] [c]; see People v. Smalls, 26 NY3d 1064, 1066 [2015]). 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, 680 [1999], citing People v. Gordon, 88 NY2d 92; People v. Swamp, 84 NY2d 725). Furthermore, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 361 [2000]).

Penal Law § 220.03, criminal possession of a controlled substance in the seventh degree, states “[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance.” Under the Penal Law, heroin is a controlled substance.

As relevant here, the Complaint alleges that on or about March 9, 2019 at approximately 4:00 PM at the Location, Det. Thevenin recovered twenty (20) glassine envelopes of heroin from Defendant's hand. The Complaint further alleges that based upon detective's training and experience, which includes training in the recognition of controlled substances and their packaging, the aforementioned substance is alleged and believed to be heroin.

As required by CPL 100.40 (1) (c), the allegations here in the Complaint are non-hearsay because the detective observed the crime first-hand. In addition, the Complaint has established the elements of criminal possession of a controlled substance in the seventh degree pursuant to Penal Law § 220.03, in that the Defendant was observed to have been in possession of glassine envelopes containing what the deponent, Det. Thevenin, believed to be heroin, a controlled substance (see Public Health Law § 3306 Schedule I [c] [11] ).

Det. Thevenin's statement that he believes that the substance is heroin is based on his professional training in the identification of controlled substance and their packaging and his prior experience as a police officer in making drug arrests (see People v. Kalin, 12 NY3d 225 [2009]; People v. Pearson, 78 AD3d 445 [1st Dept 2010]). “ ‘Possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property” (see Penal Law § 10.00 [8]). A person knowingly possesses heroin when that person is aware that he is in possession of heroin. A person unlawfully possesses heroin when that person has no legal right to possess that substance. Under the Penal Law, a person has no legal right to possess heroin (see CJI 2d [NY]; Penal Law § 220.03). The Complaint alleges that Det. Thevenin recovered twenty (20) glassine envelopes of heroin from Defendant's hand and as the Defendant has no legal right to possess heroin, the elements of possession “knowingly” and “unlawfully” are established pursuant to Penal Law § 220.03. Accordingly, the Complaint is facially sufficient for pleading purposes because it has provided reasonable cause to believe and has established a prima facie case that the Defendant is allegedly guilty of criminal possession of a controlled substance in the seventh degree, based on the officer's professional training and the alleged facts.

VIII. Speedy Trial

With regard to Defendant's motion to dismiss the Complaint pursuant to CPL 30.30 (1) (b), the Defendant contended that “[t]he District Attorney's office never filed a sufficient accusatory instrument in this case” (Mot. to Controvert at 25). As a result, the Defendant argued more than ninety (90) days had elapsed during which the People were not ready for trial.

As indicated in Court's analysis above, the Complaint as filed on March 10, 2019 is not jurisdictionally defective. The detective's sworn statement as contained in the Complaint is a first party complaint and comports with the statutory requirements of an information, in that the Complaint contains all material allegations with sufficient particularity. Accordingly, the Complaint is a valid information and proper instrument for the prosecution of the Defendant, and therefore for speedy trial purposes, the People are procedurally capable of announcing their readiness for trial within the applicable statutory time period pursuant to CPL 30.30 (1) (b).

As to the calculation of speedy trial time, on a motion to dismiss pursuant to CPL 30.30, the Defendant bears the initial burden of demonstrating that the People have exceeded the applicable time to bring the action to trial. If the Defendant makes said showing, the burden shifts to the People to establish that certain periods of time should be excluded from the calculation. Speedy trial time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of the commencement of the criminal action (CPL 30.30 [1]). Under CPL 30.30 (1) (b), the People have ninety (90) days to announce readiness when the most serious offense is a class A misdemeanor. As criminal possession of a controlled substance in the seventh degree is a class A misdemeanor, the People must be ready for trial within ninety (90) days from the commencement of the action. (CPL 30.30 [1] [b].)

Here, there is no indication on the Court's action sheet whether the People stated ready on March 10, 2019, the date of Defendant's arraignment. However, the People indicated in their Opposition Motion that they were ready (Opposition Mot. at 9) at that time. The Defendant did not challenge People's assertion then People's contention must be accepted. The decisional authority is clear: since the Defendant has failed to challenge People's assertion, the Court can rely on People's representation. (People v. Goode, 87 NY2d 1045 [1996]; People v. Daniels, 36 AD3d 502 [1st Dept 2007].) Accordingly, the period from March 10, 2019 until the next adjourn date April 10, 2019 is excluded. On April 10, 2019, the People filed and served discovery by stipulation, stated ready and the case was adjourned to May 14, 2019 for hearing and trial. The period from April 10, 2019 to May 14, 2019 is excludable pursuant to CPL 30.30 (4) (a). On May 14, 2019, the case was adjourned to June 13, 2019 for Court's decision on People's motion for a protective order which motion was filed on May 13, 2019 and for search warrant materials. The time period from May 14, 2019 to June 13, 2019 is excludable pursuant to CPL 30.30 (4) (a). On June 13, 2019, a motion schedule was set by the court and the case was adjourned to July 30, 2019 for hearing and trial. The time period from June 13, 2019 to July 30, 2019 is excluded pursuant to CPL 30.30 (4) (a). On July 30, 2019, the People were not ready, requested two weeks and the case was adjourned to September 6, 2019. As the People have only stated not ready once and have only requested two weeks, they have not exceeded the statutory time period. Defendant's motion to dismiss for speedy trial pursuant to CPL 30.30 is denied.

Decision and Order

Defendant's Motion to Controvert is denied; provided that

1. A Darden hearing is granted.

2. 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.

Wendy Changyong Li, J.