Opinion
CR-028579-19KN
03-12-2020
The PEOPLE of the State of New York, Plaintiff, v. Andrew BERKOWITZ, Defendant.
The Legal Aid Society, Nicholas Wiltsie for the defendant Kings County District Attorney's Office, Michael Pesin-Virovets for the People
The Legal Aid Society, Nicholas Wiltsie for the defendant
Kings County District Attorney's Office, Michael Pesin-Virovets for the People
Elizabeth N. Warin, J.
After an accident between the defendant's motorcycle and another vehicle on July 29, 2019 at 2:05 a.m. on Hamilton and Third Avenues in Kings County, defendant was charged with two counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of VTL § 1192(1) and (3) ; Aggravated Unlicensed Operation of a Motor Vehicle in violation of VTL 511(1)(a) ; Unlicensed Operation of a Motor Vehicle in violation of VTL § 509 ; and Possession of Knives or Instruments with a Blade of Four Inches or More in violation of AC § 10-133.
By motion filed on February 4, 2020, defendant moves to dismiss the accusatory instrument pursuant to CPL §§ 30.30 and 30.20. Defendant also moves to controvert the search warrant later obtained by the People to test the blood drawn from the defendant during his hospitalization from the accident and to suppress the physical evidence obtained therefrom. On February 21, 2020, the People filed a response, and on February 27, 2020, the defendant filed a reply.
For the following reasons, defendant's motion to dismiss the remaining charges pursuant to CPL § 30.30 and 30.20 is DENIED. Defendant's motion to controvert the search warrant is DENIED.
I. MOTION TO DISMISS PURSUANT TO CPL § 30.30
A. Applicable Standards
Where, as here, the top count charged on the information is an A misdemeanor, the People are required to be ready for trial within ninety days, less any excludable time ( CPL § 30.30[1][b] ). The ninety-day period commences with the filing of the accusatory instrument (see CPL § 1.20 [17] ); People v. Stirrup , 91 NY2d 434, 438 [1998] ). The day on which the accusatory instrument is filed is excluded (see People v. Stiles , 70 NY2d 765 [1987] ).
Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried" ( People v. England , 84 NY2d 1, 4 [1994] ). Readiness for trial encompasses two elements. First, the People must "answer ready" by either communicating their readiness in open court or by filing a certificate of actual readiness with the court and serving a copy on the defendant's attorney (see People v. Brown , 28 NY3d 392, 403 [2016] ; People v. Kendzia , 64 NY2d 331, 337 [1985] ). Second, "the People must in fact be ready to proceed at the time they declare readiness" (id. ; People v. Chavis , 91 NY2d 500, 505 [1998] ).
Generally, once a statement of readiness is filed, the People are only charged for adjournments when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under Section 30.30 (4) (see Brown , at 404; People v. Cortes , 80 NY2d 201, 210 [1992] ). Otherwise, post-readiness the People are charged with the amount of time they request on the record (see People v. Bruno , 300 AD2d 93, 95 [1st Dept 2002] ).
The People bear the burden of establishing that the statement of readiness is valid and that the People are actually ready to proceed with trial at the time they announce ready (Kendzia at 339). While the People are only charged with the amount of time they request on the record after a statement of readiness, unless the time is otherwise excludable under CPL § 30.30(4) (see Brown , at 404), an "illusory" statement of readiness is insufficient to stop the speedy trial clock ( England , 84 NY2d at 4 ). If the court finds a prior statement of readiness was illusory, the court "should calculate any delay chargeable to the People as required by statute as if the illusory statement of readiness was never made" (Brown at 406; see also CPL § 30.30 [5] ).
On January 1, 2020, new discovery and speedy trial laws went into effect, replacing CPL articles 30 and 240. Article 245 delineates the People's discovery obligation and further sets out a statutory time frame for the completion of certain discovery ( CPL §§ 245.20 ; 245.10). Pursuant to the timing provisions set forth in CPL § 245.10, the People must comply with their discovery obligations without any demand from the defense, unless the defense waives discovery under CPL § 245.75.
CPL § 245.20 (1), entitled "initial discovery" states that the "prosecution shall disclose to the defendant ... all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control."
The newly enacted provisions of CPL § 245.50 require that the People comply with the discovery obligations enumerated in Section 245.20 as a precondition to a valid statement of readiness. Once initial discovery is fulfilled, the People must affirm their compliance by filing a "certificate of compliance" on the defense and the court (see CPL § 245.50 [1] ). Subdivision three of § 245.50, entitled "Trial Readiness," states "absent an individualized finding of exceptional circumstances by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate [of compliance]" (CPL § 254.50[3]). CPL § 30.30 was also amended to incorporate this change to the prosecution's capacity to state ready for trial, and now states that "any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20" ( CPL § 30.30[5] ). Once the certificate of compliance is filed by the prosecution, the defense is entitled to contest its validity on the record (id. ). Furthermore, once the People answer ready, the court is required to conduct an immediate inquiry into the People's actual readiness, and if not convinced the People are ready, the statement of readiness is deemed invalid for speedy trial purposes ( CPL § 30.30[5] ).
The phrase "individualized finding of exceptional circumstances" was further amended by the legislature on April 3, 2020 to state an "individualized finding of special circumstances." (see CPL § 254.50[3], as amended by 2020 Sess. Law News of NY Ch. 56 (S. 7506-B) (emphasis added).
B. Facts of the Instant Case
According to the sworn information in this case, an officer responded to an accident between defendant's motorcycle and another vehicle on July 29, 2019 at 2:05 a.m. on Hamilton and Third Avenue in Kings County (see Superseding Information dated Jan. 10, 2020, at 1). The defendant was taken to a hospital for treatment of injuries sustained in the accident. The police officer alleges that the defendant displayed signs of intoxication, namely slurred speech and an odor of alcohol on his breath, and that he admitted to having two beers (id. at 1). The defendant was asked to submit to a breathalyzer test but refused to do so (id. ). The police officer also alleges that he ascertained that the defendant's license to drive had previously been revoked for a prior conviction for criminally negligent homicide and that he observed an 18-inch long knife on defendant's belt (id. at 2).
The defendant was arraigned on August 2, 2019, while the defendant was still in the hospital, and the case was adjourned to September 11, 2019 for the People to obtain the supporting deposition of the other driver in the accident who observed the defendant operating the motorcycle. As the People did not have that supporting deposition on the next date, the case was adjourned again for conversion to November 15, 2019. The People filed the supporting deposition and a statement of readiness off-calendar on October 21st. On November 15, 2019, the complaint was deemed an information and the matter was adjourned for discovery by stipulation until December 5, 2019.
On December 5th, the People provided discovery to the defense counsel, including the footage from the officer's body-worn camera, the 911 call, Sprint report and radio runs, and the police paperwork. The case was then adjourned for the first time for hearings and trial to January 10, 2020.
On December 6th, the People applied for and obtained a search warrant to seize a sample of the defendant's blood taken while he was being treated at the hospital for injuries sustained during the accident and submit it for testing. On January 2nd, 2020, the People received a one-page report from the forensic laboratory of the Office of the Chief Medical Examiner ("OCME") showing results of .21% ethanol for defendant's blood sample.
On January 10th, 2020, the first scheduled trial date, the People announced ready for trial and filed a certificate of compliance ("COC"), which included an inventory of discovery previously provided on December 5th, 2019, as well as additional discovery shared electronically on January 7th and 8th, including the search warrant materials and the request for a laboratory examination report. On this date, the People also served defense counsel with the one-page OCME laboratory report and acknowledged that additional OCME material regarding the blood draw existed and had been requested from the OCME but was not yet in the People's possession. The defendant challenged the validity of the COC arguing that under CPL § 245.20(1) (j) the People were required to provide the underlying OCME toxicology case file and that the outstanding discovery rendered the COC invalid.
In a colloquy with the Court, the People stated that they were prepared to proceed with the trial as a refusal case, without using the blood draw as evidence in their case. Further, the People detailed their efforts to obtain the outstanding data from OCME, including a request for expedited production as well as daily follow up on the progress of their request for the file.
In a preliminary oral ruling, this Court agreed that the underlying OCME casefile fell within the statutory discovery provision for "reports, documents, records, data, calculations or writings... concerning scientific tests relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity" (see CPL § 245.20 (1) (j) ). The Court directed the People to file a supplemental COC and stated the Court "did not believe [the People] made a valid statement of readiness today." (tr. of Jan. 10, 2020, at 10-11). The Court further noted the trial part was not available for hearings and trial that day, and therefore, the matter could not proceed that day (id. at 9). The case was adjourned to February 5, 2020 for hearings and trial.
Consistent with the Court of Appeals ruling in People v. Berkowitz , the determination of whether an adjournment is chargeable for speedy trial purposes is to be made when the defendant moves to dismiss on speedy trial grounds (50 NY2d 333, 349 [1980] (calendar notations not binding as to whether time period excludable)). Therefore, any preliminary findings of January 10th, are superseded by the rulings contained herein.
On February 4, 2020, the defense filed the instant motion to dismiss the charges pursuant to CPL § 30.30 claiming 115 chargeable days. On February 5, 2020, the Court set a briefing schedule and adjourned the matter for both decision as well as hearing and trial.
C. Conclusions of Law
The statutory amendments concerning the speedy trial and discovery law apply to all pending proceedings as of the January 1, 2020 effective date (see US Const Amend V, XIV: NY Const, art I, § 6, 11 ; see also McKinney's Consolidated Laws of NY § 55 ; Wade v. Byung Yang Kim , 250 AD2d 323 [2nd Dept 1998] ; see People v. Lobato, 2020 NY Slip Op 50322 [U] [Crim Ct, Kings County 2020] ). While the new standards are equally applicable to all cases that have been pending since 2019 or before, the effect of the application of these new standards upon the chargeability or excludability of adjournments from 2019 into 2020 will depend upon the particular circumstances and posture of the individual case.
Here, both parties agree that as of the December 5th date, 80 days of speedy trial time were chargeable to the People. There are two court adjournments critical to the disposition of the defendant's motion: from December 5, 2019 to January 10, 2020 and from January 10, 2020 to February 5, 2020.
a) Adjournment from December 5, 2019 to January 10, 2020 for hearing and trial
The People filed discovery on December 5th under the prior agreement in Kings County between the District Attorney's office and the defense bar known as "discovery by stipulation" ("DBS") which involved a version of open file discovery and waiver of formal motion practice. Adjournments for DBS were "the functional equivalent of pre-trial discovery and motion practice" and were excluded from speedy trial calculations pursuant to CPL § 30.30 [4][a] (see People v. Dorilas , 19 Misc 3d 75, 77, 2008 Slip Op 28162 [App Term, 2nd Dept 2008] ; People v. Khachiyan , 194 Misc 2d 161 [Crim Ct, Kings County 2002] ). Furthermore, speedy trial precedent has long established that the People are entitled to a reasonable time to prepare for trial after an adjournment for motion practice ( People v. Greene, 223 AD2d 474 [1st Dept 1996] ). Thus, prior to the enactment of the new criminal procedure laws, the People were routinely granted a period of excludable time to prepare for trial after rulings on an omnibus motion and demand to produce; here in Kings County, the same exclusion applied after the provision of DBS to prepare for trial and any hearings to be held on the consent of the People (see Dorilas , 19 Misc 3d 75 ; People v. Filicia , 52 Misc 3d 212 [Crim Ct, Kings County 2016] ; People v. Harding , 2016 NY Slip Op 50060[U] [Crim Ct, Kings County 2016] ; People v. Lucas , 25 Misc 3d 1213 (A), 2009 NY Slip Op 52085 [U] [Crim Ct, Kings County 2009] ). Notably, courts still applied this exclusion of time even when the People were not actually ready to prepare for trial (Dorilas , at 799)(reasonable period of delay resulting from DBS excluded "despite the fact that the People had not yet converted the misdemeanor complaint").
Under this established precedent, the adjournment from December 5th to January 10th, 2020 was not chargeable, as it falls squarely within the Green exclusion for trial preparation after DBS was provided by the People, and before the first scheduled date for hearing and trial. Defendant argues, however, that as of January 1, 2020, the People were rendered "not ready," and should be charged until they met their discovery obligation and answered ready under the new standards.
Although the new trial readiness standards are applicable as of January 1, 2020, this does not mean that the speedy trial clock must automatically resume as of that date. The exclusion of motion practice as a "reasonable period of delay for proceedings concerning the defendant" from speedy trial calculations under Section [4] [a] of CPL § 30.30 was not changed by the new legislation, and thus, can still be applicable to time periods where a motion is under consideration by the Court. Further, there is no dispute that under the pre-existing speedy trial laws, an adjournment following DBS was excludable: DBS stands in lieu of motion practice, and under Green, the People were not expected to be ready immediately upon determination of the motion or the provision of DBS.
The Court notes that the 2020 discovery laws render adjournments for DBS and some discovery motion practice obsolete. The question of whether an adjournment for motion practice after January 1st, 2020 that occurs prior to the People's compliance with discovery under CPL §§ 245.50 and 245.70, would still be excludable under CPL § 30.30 [4] [a], is not currently before the Court.
Indeed, the defense concedes that the post DBS adjournment time up to January 1st, 2020 is not chargeable (see Def.'s Brief at 11-12).
The narrow question before the Court is whether here, the People were entitled to rely upon the CPL § 30.30 [4] [a] exclusion developed by Green and its progeny to allow them a reasonable period of excludable time to prepare for trial after DBS was provided until the first trial date.
The Court finds that the exclusion applies on the particular facts of this case. The People were not expected to be ready to start a trial until January 10th, and on that date, they filed a certificate of compliance and stated ready to proceed. The new discovery requirements and standards did not exist until after DBS was provided and after an adjournment was granted for hearing and trial. Because the case was in trial preparation posture immediately after DBS and the People exercised due diligence in meeting their discovery obligations under the 2020 standards on the first trial date, the Court finds the time period between December 5th and January 10th is properly excluded from the speedy trial clock under Section 4 [a] of CPL § 30.30 and Green .
b) Adjournment from January 10, 2020 to February 5, 2020 for hearing and trial
The defendant also argues that the COC filed on January 10th was invalid, as the People did not provide the underlying OCME case file regarding the toxicology report, and therefore, the People's statement of readiness is inaccurate and should not serve to stop the speedy trial clock. (Def.'s Brief at 12).
As a threshold matter, the Court finds that the OCME case file falls within the ambit of CPL § 245.20 (1) (j) (see People v. Gills, 52 Misc 3d 903 [Sup Ct, Queens County 2016] (prosecution required to disclose electronic raw data where OCME performed DNA testing at the direction of NYPD); People v. Adams , 66 Misc 3d 918 [Sup Ct, Queens County 2020] (DNA analysis performed at the request of law enforcement is discoverable pursuant to CPL § 245.20 [1] [j] ). Although OCME records are generally not deemed to be in the possession of the prosecutor, as it is an independent agency from law enforcement, whose function is to provide "impartial scientific determination(s)" on various disciplines in forensic science ( People v. Washington , 196 AD2d 346 [2nd Dept 1994] ; People v. Nova , 206 AD2d 132 [1st Dept 1994] ), the People do not contest their obligation to provide the underlying file for the OCME toxicology. The question before the Court is whether the People may be deemed trial ready in this matter as of January 10th, notwithstanding their acknowledgment of outstanding material from the OCME file.
Trial readiness without full discovery compliance requires an "individualized finding of exceptional circumstances" on a particular case ( CPL § 245.50 [3] ). What constitutes "exceptional circumstances" is not specifically defined under the new statutory provisions. The Court finds it informative, however, that one example of an "exceptional circumstance" that may allow for an exclusion of speedy trial time under CPL § 30.30 [4][g], is a request by the People for a continuance "because of the unavailability of evidence material to the People's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period" ( CPL § 30.30 [4] [g] ; People v. Clark , 28 NY3d 48, 53 [2016], citing People v. Washington , 43 NY2d 772, 774 [1977] (exception "limited to instances in which the prosecution's inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it").
Subsequent to this decision on March 12, 2020 but prior to its publication, the legislature amended the standard from "exceptional circumstances" to "special circumstances" (See CPL § 254.50[3], as amended by 2020 Sess. Law News of NY Ch. 56 (S. 7506-B) (effective May 3, 2020)). This slight modification in terminology does not affect the Court's analysis, as this new term is not specifically defined under the statute and its meaning is nearly synonymous with the prior language.
Using this standard as a guide, the Court finds that an "exceptional circumstance" under CPL § 245.50 [3] applies on the facts of this case to permit the People to state ready without full compliance with the discovery provisions. The record shows that the underlying case file for the toxicology report on the defendant's blood is material evidence currently unavailable to the People. The record also shows that the People have demonstrated due diligence in obtaining the toxicology report from OCME and in their attempts to acquire the underlying case file. The People submitted a request to expedite production of the file, then conducted a daily inquiry into the status of that request and expect the file to be provided shortly. The record also reflects that prior to filing the COC, the People had completed their remaining discovery obligations.
Moreover, the Court is satisfied on this record that the People were actually ready to proceed to trial on January 10th without relying upon the outstanding discovery material. The People articulated their willingness and ability to proceed on the case as a refusal, which was a reasonable assertion given that intoxication could be shown by police observations, the defendant's admission of consumption, the accident, and an inference from the defendant's refusal to submit to a breathalyzer. The People had evidence to proceed to trial and subsequently attempted to see if they could strengthen it through the blood test, which is a strategic decision that does not undercut their ability to proceed or invalidate a statement of readiness for trial (see People v. Wright , 50 AD3d 429, 430 [1st Dept 2008] ; see also People v. King , 152 AD3d 412, 413 [1st Dept 2017], lv denied 30 NY3d 981 [2017] (additional DNA evidence sought did not render statement of readiness based on eyewitness evidence illusory); People v. Rodriguez , 306 AD2d 686, 687 [3d Dept 2003] (seeking additional DNA evidence did not impede start of trial); People v. Gnesin , 127 AD3d 652, 652 [1st Dept 2015] (prosecution "ready" without uncooperative complainant even if preferred to proceed with that witness); People v. Polanco , 54 Misc 3d 141(A), 2017 NY Slip Op 50188 (U) [App Term, 1st Dept 2017]; People v. Maslowski , 58 Misc 3d 592 [Crim Ct, Queens County 2017] (request to obtain medical records did not undermine prior readiness to proceed with complainant witness alone)).
Indeed, the defendant does not argue the People were unable to prosecute the case without the toxicology report.
Defendant argues that the defendant's blood sample was taken at the beginning of the case, and the People's decision to request a search warrant for the same some five months after the arraignment was not an exercise of due diligence. (see Def.'s Reply at 9). On the particular facts of this case, the Court disagrees. The prosecutorial decision of whether to seek out additional evidence involves many discretionary factors, including the real risk that the blood toxicology report may not have resulted in incriminating evidence against the defendant. Where, as here, the People can point to other evidence to meet their burden of proof, a later decision to pursue a search warrant in an attempt to strengthen their case, cannot be equated with a lack of diligence.
Therefore, under these facts, the Court is satisfied that the People filed their COC on January 10th, 2020 in good faith, that diligent efforts to obtain the outstanding material were made and that the People were actually ready for trial when they so stated. Accordingly, the People are not charged for the adjournment from January 10th to February 5th.
For all of the above reasons, the defendant's motion to dismiss pursuant to CPL § 30.30 is DENIED. The People are charged with a total of 80 days.
II. MOTION TO DISMISS PURSUANT TO CPL § 30.20
The constitutional basis for a speedy trial is found in the Sixth and Fourteenth Amendments of the United States Constitution. Although the New York State Constitution contains no speedy trial guarantee, CPL § 30.20 and Civil Rights Law § 12 embody the federal constitutional rights (see People v. Anderson , 66 NY2d 529, 534-535 [1985] ). When a defendant's constitutional right to a speedy trial has been violated, the remedy is dismissal (see People v. Taranovich , 37 NY2d 442, 444 [1975] ; see also People v. Romeo , 12 NY3d 51, 55 [2009] ; People v. Staley , 41 NY2d 789, 791-792 [1977] ). In determining whether a constitutional speedy trial violation has occurred, the Court must weigh five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) the extent of pretrial incarceration; and (5) whether the defense was impaired by the delay (see Taranovich , 37 NY2d at 445 ). The Court evaluates these factors on an ad hoc basis, "since no rigid precepts may be formulated which apply to each and every instance" of an alleged constitutional right to speedy trial violation (id. ).
In this case, six months have elapsed from the time the defendant was arraigned until he filed the instant motion. The parties agree that at least 80 days of that time are chargeable to the People. The Court finds that under the facts of this case, any delays caused by the People's lack of readiness were not due to a lack of diligence by the People and were minimal. Indeed, the People answered ready multiple times over the pendency of the case. Specifically, the People filed an off-calendar statement of readiness upon conversion of the complaint within three months of the defendant's arraignment and then again answered ready on the first scheduled trial date on January 10, 2020.
Neither the extent nor the reasons for the delay warrant dismissal. More egregious examples of delay in advancing towards trial have not warranted findings that the constitutional right to speedy trial has been violated (see People v. Thompson , 43 Misc 3d 136(A) [App Term 1st Dept 2014] (21-month delay, mostly resulting from court congestion and defendant's motion practice or unavailability, and where limited delay attributable to the People was not deliberate attempt to hamper defendant's preparation of his defense, did not justify dismissal of traffic infraction on speedy trial grounds); People v. Polite , 16 Misc 3d 18, 19 [App Term 1st Dept 2007] (no constitutional speedy trial violation where 18-month delay in prosecuting traffic infraction attributable to defendant's motion practice and court congestion, rather than to the People); People v. Tejada , 48 Misc 3d 1226(A) [Crim Ct Bronx County 2015] (one year delay, where only three court dates were scheduled for hearing and trial, did not warrant dismissal of traffic infraction).
Furthermore, defendant was not incarcerated on this offense, so the extent of pretrial incarceration is not a consideration here. Nor is impairment of defense a significant factor here. Although the police officer witness's ability to recollect details about his interaction with the defendant is likely lessened by the passage of time, there is also a greater likelihood that the defendant may create reasonable doubt as to the officer's testimony for this same reason.
Having evaluated the particular facts and circumstances of this case under the Tarantovich factors, the Court finds that the defendant's constitutional speedy trial rights have not been violated. Accordingly, the motion to dismiss the accusatory instrument on constitutional speedy trial grounds is DENIED.
III. MOTION TO CONTROVERT THE SEARCH WARRANT AND SUPPRESS THE PHYSICAL EVIDENCE SEIZED UPON ITS EXECUTION
Defendant argues that the search warrant was not supported by probable cause because the affidavit in support of the search warrant, sworn to by Police Officer Yukshing Chai, relies on the hearsay statements of the complainant, Margarita Quirindogo (see Def.'s Affirmation at pp. 4, 7-8). Defendant further argues that the People's failure to provide notice of the application for a search warrant is a violation of the defendant's due process rights requiring suppression of the obtained evidence (id. at 8-9).
"A presumption of validity attaches to a warrant, which has already been tested by the issuing Judge, thus simplifying the suppression court's task to determining whether the issuing Judge could reasonably have concluded that probable cause existed" ( People v. Ortiz , 234 AD2d 74, 75-76 [1st Dept 1996] (citing People v. Castillo , 80 NY2d 578, 585 [1992], cert. denied 507 US 1033 [1993] ). "In New York State, courts determining the sufficiency of an affidavit submitted in support of a search warrant application that relies on hearsay information apply the two-prong Aguilar-Spinelli test" ( People v. Rhee , 54 Misc 3d 1217(A), at *6 [Crim Ct New York County 2017], citing People v. Griminger , 71 NY2d 635 [1988] ). In the cases concerning a citizen informant, a substantial basis for crediting his reliability and his conclusion that illegal activities were taking place is "built in" ( People v. Cantre , 95 AD2d 522 [2nd Dept 1983] citing US v. Nilsen , 482 F. Supp. 1335 [D NJ 1980] ).
Here, the issuing judge was presented with evidence that Officer Chai responded to a 911 call made by the complainant reporting a car collision with the defendant's motorcycle. The officer's affidavit describes information relayed directly from the complainant that the defendant "disobeyed the pavement markings and went straight ahead colliding with the witness" (Def.'s Brief, exhibit B, p.3). Further, the officer observed the defendant with head injuries at the scene and again later at Methodist Hospital, where the defendant was treated for injuries from the collision. At the hospital when Officer Chai attempted to interview the defendant, he observed the defendant to have slurred speech and alcohol on his breath and heard the defendant admit to hospital staff that he had 2 beers earlier that evening (id. at 5). The information contained in the 911 call combined with the officer's observations of the defendant's injury, his intoxicated condition and the defendant's admission of drinking earlier that night were sufficient to establish the reliability of the informant and provided ample basis for the issuance of probable cause that the defendant was driving while intoxicated by alcohol.
The defendant further argues that the People's failure to provide notice of the search warrant application violated his right to due process and requires suppression of the blood sample pursuant to the Court of Appeals holding in Matter of Abe A , 56 NY2d 288 [1982]. The Court disagrees. As a general rule, an ex parte application for a search warrant is lawful, "since the target of a search warrant has no right to notice or an opportunity to be heard on the application" ( People v. McNair , 85 AD3d 693 [1st Dept 2011]. Abe A and its progeny establish special rules for evidence taken from a suspect's body, such as blood or DNA samples ( People v. Goldman , 171 AD3d 581, [1st Dept 2019] ; see also People v. Smith , 95 AD3d 21 [4th Dept 2012] ; People v. Halle , 57 Misc 3d 335 [Sup Ct, Kings County 2017] ).
The search warrant at issue authorized the seizure of a stored blood sample which had been drawn by the hospital during the course of the defendant's treatment for injury sustained during a car accident on the date of the incident. The concerns of Abe A are not implicated here since the warrant application in this case did not concern any new intrusion into the defendant's body (see People v. King , 232 AD2d 111 [2nd Dept 1997] (scientific analysis of a lawfully obtained blood sample does not involve any further search and seizure of a defendant's person); cf. Smith , 95 AD3d 21 [4th Dept 2012] (notice required for successive applications to produce defendant for buccal swab)). As such, the defendant was not entitled to notice and the ex parte procedure was lawful pursuant to CPL § 690.
Accordingly, the defendant's motion to controvert the search warrant and suppress the evidence obtained therefrom is DENIED.
The foregoing constitutes the opinion, decision and order of the Court.