Opinion
Indictment No. 19-0258-01
07-05-2019
THE PEOPLE OF THE STATE OF NEW YORK v. ANDRE PRICE and RAFAEL (a/k/a "Ralph") OLIVERA Defendant.
HON. ANTHONY A. SCARPINO, JR. Attn: A.D.A. Cooper W. Gorrie. Brendan O'Meara Attorney for defendant Price.
Unpublished Opinion
HON. ANTHONY A. SCARPINO, JR. Attn: A.D.A. Cooper W. Gorrie.
Brendan O'Meara Attorney for defendant Price.
DECISION & ORDER
Hon. Anne E. Minihan, A.J.S.C.
Defendant, Andre Price, is charged by Westchester County Indictment Number 19-0258 as aiding, abetting, and acting in concert with co-defendant Rafael Olivera, with conspiracy in the fourth degree (Penal Law § 105.10 [1]) (two counts). Defendant is charged individually with criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) (three counts) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) (three counts). Co-defendant Olivera is charged individually with criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) (two counts) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) (two counts). Defendant has filed an omnibus motion which consists of a Notice of Motion and an Affirmation in Support. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law.
Upon consideration of these papers, the stenographic transcript of the grand jury minutes and the Consent Discovery Order entered in this case, this court disposes of this motion as follows:
A.
MOTION to INSPECT, DISMISS and/or REDUCE CPL ARTICLE 190
The court grants the defendant's motion to the limited extent that the court has conducted, with the consent of the People, an in camera inspection of the stenographic transcription of the grand jury proceedings. Upon such review, the court finds no basis upon which to grant defendant's application to dismiss or reduce the indictment.
The defendant, who bears the burden of refuting with substantial evidence the presumption of regularity which attaches to official court proceedings (People v Pichardo, 168 A.D.2d 577 2d Dept 1990]), has offered no sworn factual allegations, in support of his argument that the grand jury proceedings were defective. The minutes reveal a quorum of the grand jurors was present during the presentation of evidence, and that the Assistant District Attorney properly instructed the grand jury on the law and only permitted those grand jurors who heard all the evidence to vote the matter (see People v Calbud, 49 N.Y.2d 389 [1980]; People v Valles, 62 N.Y.2d 36 [1984]; People v Burch, 108 A.D.3d 679 [2d Dept2013]).
The evidence presented, if accepted as true, is legally sufficient to establish every element of each offense charged (CPL 210.30[2]). "Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted-and deferring all questions as to the weight or quality of the evidence-would warrant conviction" (People v Mills, 1 N.Y.3d 269, 274-275 [2002]). Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (CPL 70.10[1]; see People v Flowers, 138 A.D.3d 1138, 1139 [2d Dept 2016]). "In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" (People v Jessup, 90 A.D.3d 782, 783 [2d Dept 2011]). "The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference" (People v Bello, 92 N.Y.2d 523, 526 [1998]).
Based upon the in camera review, since this court does not find release of the grand jury minutes or any portion thereof necessary to assist it in making any determinations and as the defendant has not set forth a compelling or particularized need for the production of the grand jury minutes, defendant's application for a copy of the grand jury minutes is denied (People v Jang, 17 A.D.3d 693 [2d Dept 2005]; CPL 190.25 [4] [a]).
B.
MOTION FOR HEARING ON VOLUNTARINESS OF UNNOTICED STATEMENTS
The branch of motion seeking a pre-trial hearing on the voluntariness of any unnoticed statements is denied as premature. This branch of the motion, to preclude the People from introducing statements at trial that were not noticed, is denied as premature. If the People seek to impeach defendant's credibility with an unnoticed statement, and the defendant challenges the voluntariness of the statement, a ruling by the court as to the voluntariness of the statement would be required (see People v Marbling, 64 N.Y.2d 134, 140 [1984]; People v Clemens, 166 A.D.2d 363, 365 [1st Dept 1990]).
C.
MOTION to SUPPRESS PHYSICAL EVIDENCE and to CONTROVERT THE EAVESDROPPING WARRANT(S)
Defendant moves to suppress all physical evidence, including evidence obtained pursuant to any search warrant and/or eavesdropping warrants, and evidence seized pursuant to his arrest. While the defendant moves to suppress evidence on the ground of illegal arrest, he offers no sworn allegations of fact in support of the conclusory statement of illegal seizure or arrest and thus, his motion is summarily denied on this ground (People v France, 12 N.Y.3d 790 [2009]; People v Jones, 95 N.Y.2d 721 [2001]; CPL 710.60[3][b]; see also People v Scully, 14 N.Y.3d 861 [2010]).
Evidence obtained by search warrant
Defendant's motion to suppress evidence pursuant to a search warrant is denied as academic since evidence was not seized in this case pursuant to a search warrant. To the extent he challenges the arrest a warrant based on the filing of the indictment, it is denied since it is presumed valid (People v Boone, 269 A.D.2d 459 [2d Dept 2000]).
Evidence obtained by eavesdropping warrants
To the extent that defendant moves to suppress evidence obtained from eavesdropping warrants which did not target his cell phone, or intercept any communications to which defendant was a party, that branch of the motion is denied for lack of standing (see CPL 710.20, 710.10[5]). Defendant has no standing to be heard on matters involving GPS coordinates or telephone records of a third-party's device in which he has no reasonable expectation of privacy (see People v Kramer, 92 N.Y.2d 529, 538-540 [1998]; People v Anderson, 149 A.D.3d 1407, 1408-1409 [3d Dept 2017] Iv. denied 30 N.Y.3d 947 [2017]). Thus, defendant's challenge is only relevant with respect to the eavesdropping warrant dated September 18, 2018, October 18, 2018, November 26, 2018, and December 24, 2018.
Defendant moves to suppress all communications intercepted pursuant to the eavesdropping orders, including any evidence resulting therefrom, on the basis that the seizure of property occurred in violation of defendant's Fourth Amendment rights and that the wiretap orders lacked probable cause for their issuance, were defective, and generally violated defendant's constitutional rights. Specifically, defendant moves to suppress all evidence obtained by the eavesdropping warrants on the grounds that: (1) the applications did not comply with CPL 700.15 (issuance), i.e., they did not show probable cause or that normal investigative procedures were tried and failed; (2) the applications did not comply with CPL 700.20 (application), i.e., they failed to describe facts to justify the use of a warrant; (3) the warrants did not conform to CPL 700.30 (form and content), i.e., they did not minimize intercepted communications or properly limit the authority, length, and scope of the investigation; (4) the warrants were not properly executed pursuant to CPL 700.35 (time and execution), and; (5) the prosecution failed to properly extend the warrants pursuant to CPL 700.40 (orders of extension).
The court has examined all of the relevant eavesdropping warrants, and supporting applications, and finds as follows:
Probable Cause & Normal Investigative Procedures (CPL 700.15)
"[T]he probable cause necessary for the issuance of an eavesdropping warrant is measured by the same standards used to determine whether probable cause exists for the issuance of a search warrant" (People v Tambe, 71 N.Y.2d 492, 500 [1988]). Upon review of the four corners of the affidavits supporting the relevant eavesdropping applications, the warrants were adequately supported by probable cause. Specifically, there was probable cause to believe that the targeted phones were being used in the . commission of the offenses designated in the warrants (see People v Keves, 291 A.D.2d 571 [2d Dept 2002]; see generally People v Badilla, 130 A.D.3d 744 [2d Dept 2015]; People v Elysee, 49 A.D.3d 33 [2d Dept 2007]).
Pursuant to CPL 700.15(4) and 700.20(2)(d), a wiretap application must contain "[a] full and complete statement of facts establishing that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ, to obtain the evidence sought" (CPL 700.15[4]; see People v Rabb, 16 N.Y.3d 145 [2011]). The affidavits herein sufficiently set forth that normal investigative procedures had been tried and had failed to achieve the goals of the investigation (see People v Rabb, 16 N.Y.3d 145 [2011]).
Given deference to the issuing court's determinations, defendant's allegations provide no basis to alter the issuing court's determinations that normal investigative techniques had been exhausted and that there existed probable cause for the warrants (see Franks v Delaware, 438 U.S. 154, 171 [1978]; People v Traymore, 241 A.D.2d 226 [1st Dept 1998]).
Facts Supporting Application (CPL 700.20)
To the extent that defendant's motion seeks to suppress evidence obtained from the eavesdropping warrants on the basis that the supporting affidavits relied on facts supplied by informants, but did not satisfy the Aguilar-Spinelli test, the motion is denied. To the extent that the applications relied on information from informants, the applications demonstrated both the reliability of the informant(s) and the basis of the informant(s) knowledge (see Aguilar v Texas, 378 U.S. 108 [1964]; Spinelli v United States, 393 U.S. 410 [1969]).
Minimization (CPL 700.30)
CPL 700.30(7) provides, in relevant part, 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" (CPL 700.30[7]). "The minimization requirement is rooted in the Fourth Amendment's ban upon unreasonable searches and seizures" (People v Edelstein, 54 N.Y.2d 306, 309 [1981] rearg. denied 55 N.Y.2d 878 [1982]). 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 [1976]). It is the People's burden to show the legality of the police conduct (see People v DiStefano, 38 N.Y.2d 640, 652 [1976]). The People may satisfy that burden "by demonstrating that procedures were established to minimize interception of nonpertinent communications and that a conscientious effort was made to follow such procedures" (People v Floyd, 41 N.Y.2d at 250).
Here, the People met their burden, demonstrating that the wiretap investigation was carried out with the appropriate procedures in place to minimize interception of nonpertinent communications pursuant to CPL 700.30(7) (see People v Gjelaj, 46 A.D.3d 911 [2d Dept 2007]; People v Nelson, 21 A.D.3d 1121, 1122 [2d Dept 2005]). The People kept the court apprised of their minimization efforts through regular progress reports pursuant to CPL 700.50(1). Defendant's motion papers made only a conclusory challenge to whether the People met the minimization requirement, and failed to rebut the People's showing that the calls were properly recorded and sufficiently minimized.
Sealing (CPL 700.50)
To the extent that defendant moves for suppression of any intercepted communications on the ground that the sealing requirements of CPL 700.50 (2) were not satisfied, that branch of the motion is denied. CPL 700.50(2) provides, in pertinent part, "Immediately upon the expiration of the period of an eavesdropping... warrant, the recordings of communications... must be made available to the issuing judge and sealed under his directions" (CPL 700.50[2], 700.35[3]). "[T]he obligation to seal tapes arises at the expiration of the 30-day period of the warrant, and at the close of each extension thereafter granted" (People v Weiss, 63 A.D.2d 662, 663 [2d Dept 1978]). It is well settled that "the sealing requirement must be strictly construed to effectuate its purposes of preventing tampering, alterations or editing, aiding in establishing a chain of custody and protecting the confidentiality of the tapes" (People v Gallina, 95 A.D.2d 336 [2d Dept 1983]). In fact, CPL 700.50(2) does not require sealing of "the original" so long as the People identify "an" original and seal it, tampering, alteration, or editing of that original is prevented, and chain of custody of the original is also maintained.
To the extent that defendant's motion raises an issue as to sealing, the court finds that the People complied with their statutory requirement (CPL 700.50[2]). Notably, all of the sealing orders were signed on or before the date the warrants, or any extensions thereof, terminated.
Geographic Jurisdiction (CPL 700.05[4], 705.00[6])
CPL 700.05(4) provides, in pertinent part, that an eavesdropping warrant may be issued by "any justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed" (CPL 700.05[4]). Similarly, any supreme court justice may issue an order authorizing the use of a pen register and trap and trace device in the judicial district in which the order is to be executed (CPL 705.00[6]). An eavesdropping warrant is "executed" when and where telephonic communications are intercepted or heard (People v Perez, 18 Misc.3d 582 [2007]; see also United States v Rodriguez, 968 F.2d 130 [1992]). As long as the issuing court is in the jurisdiction of the execution, the location of the intercepted phone is not pertinent (United States v Rodriguez, 968 F.2d 130 [1992]). Since all of the eavesdropping warrants were issued by New York State Supreme Court Justices in Westchester County and the place used by law enforcement to intercept the communications was located in Westchester County, the warrants were properly executed in the issuing jurisdiction.
Based on the court's full review of the subject eavesdropping warrants and supporting affidavits, the court finds that the warrants were properly issued and executed (see CPL 700.15 et. seq.) and, thus, denies defendant's motion to controvert the warrants, and to suppress any evidence obtained thereby.
Notwithstanding the above, defendant's motion to suppress is granted solely to the extent of conducting a pre-trial hearing to address whether any evidence was unlawfully seized from defendant at the time of his arrest, not pursuant to a warrant (see Mapp v Ohio, 367 U.S. 643 [1961]). The hearing will also address whether any evidence was obtained in violation of defendant's Fourth Amendment rights (see Dunaway v New York, 442 U.S. 200 [1979]).
D.
MOTION for LEAVE to FILE FUTURE MOTIONS
This motion is denied. Should defendant intend to bring further motions for omnibus relief, he must do so by order to show cause setting forth reasons as to why his motion was not and could not have been brought in conformity with CPL 255.20.
E.
MOTION for DISCLOSURE of INFORMANTS
The defendant moves for disclosure of the identity of informants without demonstrating what relevant testimony any such witness would have on the issue of his innocence or guilt (see People v Goggins, 34 N.Y.2d 163 [1974]; People v Rivera, 98 A.D.3d 529 [2d Dept 2012]; People v Pena, 37 N.Y.2d 642 [1975]). Additionally, the court notes that there is no need for a Darden hearing where there is sufficient evidence to establish probable cause apart from the information provided from an alleged informant (People v Crooks, 27 N.Y.3d 609, 610 [2016]).
F.
MOTION FOR a SEVERANCE and FOR a SEPARATE TRIAL
The defendant moves for a severance from his co-defendants and for a separate trial. Defendant presents no sworn allegations of fact or evidence to support the assertion that undue prejudice will result by joinder nor does he particularize the reasons as to why he would be prejudiced by a joint-trial with co-defendants. Defendant's speculation that a co-defendant would pursue an antagonistic defense is an insufficient basis to proceed with separate trials (People v Chaplin, 181 A.D.2d 828 [2d Dept 1992]). Defendant has failed to show good cause for severance (CPL 200.40 [1]).
The defendant was properly joined in the indictment (CPL 200.40[l][d]). While the court may, in its discretion and for good cause shown, order that defendant be tried separately, defendant failed to demonstrate good cause for severance. Where the proof against all defendants is supplied by the same evidence, "only the most cogent reasons warrant a severance" (People v Bornholdt, 33 N.Y.2d 75, 87 [1973]; People v Kevin Watts, 159 A.D.2d 740 [2d Dept 1990]). "[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses..." (People v Mahboubian, 74 N.Y.2d 174, 183 [1989]). Defendant's motion to sever on the ground that there would potentially be prejudice arising from a Sandoval ruling is denied as premature, with leave to renew after a Sandoval ruling, and upon a showing that a joint trial will result in unfair prejudice to him and substantially impair his defense.
Defendant's motion to sever on the ground that there would potentially be prejudice arising from a Sandoval or Huntley ruling is denied as premature, with leave to renew after a Sandoval or Huntley ruling, and upon a showing that a joint trial will result in unfair prejudice to him and substantially impair his defense. Notably, a limiting instruction at trial would properly direct the jury to separately consider the proof as to each crime charged, thereby eliminating any prejudice to the defendant (see People v Veeny, 215 A.D.2d 605 [2d Dept 1995]).
G.
MOTION for SANDOVAL and VENTIMIGLIA HEARINGS
Defendant has moved for a pre-trial hearing to permit the trial court to determine the extent, if at all, to which the People may inquire into the defendant's prior criminal convictions, prior uncharged criminal, vicious or immoral conduct. The People have consented to a Sandoval hearing. Accordingly, it is ordered that immediately prior to trial a hearing shall be conducted pursuant to People v Sandoval (34 N.Y.2d 371 [1974]). At said hearing, the People shall be required to notify the defendant of all specific instances of his criminal, prior uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use in an attempt to impeach the defendant's credibility if he elects to testify at trial (CPL 240.43).
At the hearing, the defendant shall bear the burden of identifying any instances of his prior misconduct that he submits the People should not be permitted to use to impeach his credibility. The defendant shall be required to identify the basis of his belief that each event or incident may be unduly prejudicial to his ability to testify as a witness on his own behalf (see People v Matthews, 68 N.Y.2d 118 [1986]; People v Malphurs, 111 A.D.2d 266 [2d Dept 1985]).
Defendant's application for a hearing, pursuant to People v Ventimiglia (52 N.Y.2d 350 [1981]) is denied since the People have not indicated an intention to use evidence of any prior bad act or uncharged crimes of the defendant during its case in chief (see People v Molineaux, 168 N.Y.2d 264 [1901]). If the People move to introduce such evidence, the defendant may renew this aspect of his motion.
H.
MOTION for TIME to FILE FUTURE MOTIONS
This motion is denied. Any future motion must be brought by way of order to show cause setting forth reasons as to why said motion was not brought in conformity with CPL 255.20.
I.
MOTION for DISCOVERY, DISCLOSURE and INSPECTION CPL ARTICLE 240
The parties have entered into a stipulation by way of a Consent Discovery Order consenting to the enumerated discovery in this case. That branch of defendant's motion which seeks discovery is granted to the extent provided for in Criminal Procedure Law Article 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to the Consent Discovery Order, they are to be provided forthwith.
The People recognize their continuing duty to disclose the terms of any deal or agreement made between the People and any prosecution witness at the earliest possible date (see People v Steadman, 82 N.Y.2d 1 [1993]; Giglio v United States, 405 U.S. 150 [1972]; Brady v Maryland, 373 U.S. 83 [1963]; People v Wooley, 200 A.D.2d 644 [2d Dept 1994]).
Except to the extent that defendant's application has been specifically granted herein, it is otherwise denied as seeking material or information beyond the scope of discovery (see People v Colavito, 87 N.Y.2d 423 [1996]; Matter of Brown v Grosso, 285 A.D.2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241 A.D.2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 A.D.2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 A.D.2d 420 [2d Dept 1994]).