Opinion
1378-2019
12-17-2020
The PEOPLE of the State of New York, Plaintiff, v. Gossett MILLS, Defendant.
The People by: Assistant District Attorney Mark Katz, 125-01 Queens Boulevard, Kew Gardens, New York 11415. The Defendant by: Garnett H. Sullivan, Esq., Garnett H. Sullivan Law Office, 1080 Grand Avenue, South Hempstead, New York 11550.
The People by: Assistant District Attorney Mark Katz, 125-01 Queens Boulevard, Kew Gardens, New York 11415.
The Defendant by: Garnett H. Sullivan, Esq., Garnett H. Sullivan Law Office, 1080 Grand Avenue, South Hempstead, New York 11550.
SUMMARY REPORT OF DARDEN HEARING
Gene R. Lopez, J.
On November 10, 2020, this court conducted a Darden hearing in this matter to ascertain the veracity and existence of the confidential informant who provided information to Detective George Bodenmiller in his affidavit in support of the search warrant application. (See People v Darden , 34 NY 177 [1974].) The court conducted the hearing in a sealed courtroom outside the presence of the defendant and his counsel. Three witnesses testified at the hearing: Detective Chowdury, Detective Bodenmiller, and the confidential informant. Prior to the hearing, this court gave defense counsel the opportunity to provide a list of questions for the court to ask the informant. Counsel provided such a list and the court asked the informant each of counsel's questions at the hearing. (See Darden , 34 NY at 181.) In accordance with the procedure set forth in Darden , this summary report forms this court's decision on the hearing. (Id. )
The purpose of a Darden hearing is "insuring that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant's identity." ( People v Edwards , 95 NY2d 486, 494 [2000].) Here, this court finds that the testimony at the Darden hearing did not meet this standard, because it did not establish that the informant who testified was, in fact, the person who provided the information in support of the search warrant, given the serious, irreconcilable discrepancies between the search warrant affidavit and the testimony at the hearing. (See People v Nettles , 186 AD3d 861 [2d Dept 2020].)
The registered confidential informant's testimony at the hearing materially differed from the information forming the basis of the search warrant application in several ways, particularly regarding the circumstances of the two controlled buys described in the affidavit. With respect to the first transaction taking place at the subject location, the informant's testimony was materially inconsistent with the search warrant affidavit in regard to: (1) the way his initial interaction with a female upon approaching the location came about; (2) where the drug transaction took place within the two-story residence; (3) the location from which the seller physically obtained the drugs he gave to the informant; and (4) the length of time the transaction took (the informant testified that it was about five minutes whereas the affidavit indicates it was close to an hour). As for the second controlled buy detailed in the affidavit, the informant's testimony also materially deviated from the information in the application. His testimony about this sale differed with respect to both the amount of money the detective gave him to use in the transaction and the quantity of drugs he purchased.
Detective Bodenmiller's testimony at the hearing also materially differed from the informant's. Their testimony diverged on the issue of whether the informant knew the seller prior to these two occasions — the informant said that he did not, whereas Bodenmiller said that the informant had told him he knew the seller from the neighborhood.
Further, both detectives' testimony raised also questions about the information in the affidavit regarding the informant's track record of reliability. While Detective Chowdury, the informant's handler, testified that at the time of the controlled buys, he had been involved in the execution of search warrants for which he was told the informant had provided information, he did not have personal knowledge of the information supporting some of those warrants. Some of the warrants predated his involvement with the informant. Although Chowdury could not give an exact number, he testified that, at the time of the controlled buys, he had personal knowledge of "less than ten"—possibly between five and ten—warrants in which the informant had provided information. Detective Bodenmiller, on the other hand, testified that he did not know how many prior search warrants the informant had provided information for based on personal knowledge, but rather, that he had received that number from Chowdury. The testimony, therefore, does not accord with the statement in the search warrant affidavit that the informant had provided information forming the basis of ten prior warrants.
While some of these discrepancies might not be as serious if taken individually, together, this litany of contradictions undermines the assertion that the informant who testified at the hearing actually provided the information in the search warrant affidavit. In People v Nettles , the Second Department found that several material contradictions between the testimony at a Darden hearing and the facts articulated in the underlying search warrant affidavit rendered the People unable to meet their burden to establish that the confidential informant described in the affidavit both existed and provided information sufficient to establish probable cause. ( 186 AD3d at 865.) Similarly, the People failed to meet that burden in this case. Accordingly, this court finds that, because of the material inconsistencies detailed above, the testimony at the Darden hearing failed to establish that the confidential informant relied upon in the search warrant affidavit both existed and gave information to the detective sufficient to establish probable cause.
For all of these reasons, the defendant's motion to controvert the search warrant is granted.
This constitutes the decision and order of the court.
The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.