Opinion
No. 2022-22173 Indictment No. 57/20
05-05-2022
The People of the State of New York v. Dustin Dominicci, Defendant.
For the People: Assistant District Attorney George Suminski, Bronx District Attorney's Office For the Defendant: Toni Messina, Esq., Alan Gardner, Esq.
For the People: Assistant District Attorney George Suminski, Bronx District Attorney's Office
For the Defendant: Toni Messina, Esq., Alan Gardner, Esq.
MARTIN MARCUS, J.
The defendant was indicted by the Grand Jury of Bronx County and charged with Murder in the Second Degree and Manslaughter in the First Degree arising out of the death of Florentino Garcia (hereinafter "Garcia"), who was stabbed to death on Sunday, December 8, 2019, in a fight in which the defendant was also injured with a knife. The defendant claims that his conduct was justified.
The defendant moves pursuant to CPL § 245.30(3) for an order directing the preservation of the cellphone of Tiaralyn Felix and for discretionary discovery of the contents of that phone. The People and Ms. Felix, through counsel, oppose the motion. Ms. Felix had her cellphone with her when she was interviewed by detectives, but the detectives did not take steps to retain or download the contents of the cellphone. An order pursuant to CPL § 245.30(1) preserving the cellphone and its contents has been issued to Ms. Felix, pending resolution of the instant motion.
The other requests for discovery in the defendant's motion have been resolved and are not addressed in this decision.
Preliminarily, Ms. Felix argues that because she is "non-party" in this case, she is "not properly summoned before the court." For this proposition, she cites People v. Cooper, 71 Misc.3d 559 (Erie Co. Ct. 2021), in which the court denied the People's request for a court order directing the Buffalo Police Department to produce records they were required to disclose to the defendant pursuant to their discovery obligations. Cooper has no application here. Although that court held that it had no jurisdiction to issue such an order, here CPL § 245.30(3) explicitly permits a defendant to seek discovery from "the prosecution, or any individual, agency or other entity subject to the jurisdiction of the court," but does not authorize the People to do so. While CPL § 245.30(3) does not clarify what renders an individual "subject to the jurisdiction of the court," declaring that anyone who is not a party to a criminal case is beyond the court's jurisdiction would undermine the obvious intent of CPL § 245.30(3) to permit a defendant to obtain discovery from a third party, and in particular from "an individual" who, like Ms. Felix, has received notice of the motion, as the statute requires.
Since the statute specifically provides for discretionary discovery from an "individual," the People's argument that an individual is not an "entity" is irrelevant.
Citing Carpenter v. United States, 138 S.Ct. 2206 (2018) and Riley v. California, 573 U.S. 373 (2014), the People argue that CPL § 245.30(3) cannot be construed to authorize the seizure of a civilian's personal property, and that the seizure of the cellphone and a search of its contents requires a search warrant predicated on probable cause. Also citing to Riley, Ms. Felix argues that the surrender of her cellphone and a search of its contents would violate her right to privacy. In Riley, taking notice of the "immense storage capacity" of a cellphone and the ability to use the information it contains to reconstruct "the sum of an individual's private life," the Supreme Court held that a warrant is generally required before it can be searched by the Government. Riley, 573 U.S. at 393, 394. Similarly, in Carpenter, 138 S.Ct. at 2210-11, the Court held that when the Government obtained the defendant's historical cell cite information from his cellphone service provider, it was a search within the protection of the Fourth Amendment, requiring a warrant predicated upon a showing of probable cause. See also People v. Weaver, 12 N.Y.3d 433, 444 (2009) (holding that "[t]he massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy," and was unlawful in the absence of a showing of probable cause and a warrant).
While CPL § 690.05(1) provides that "a police officer, a district attorney or other public servant acting the course of his official duties" may apply for a search warrant, it does not permit a defendant to do so. Instead, the authority comes from CPL § 245.30(3), which provides that a court may,
upon a showing by the defendant that the request is reasonable and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, order the prosecution, or any individual, agency or other entity subject to the jurisdiction of the court, to make available for disclosure to the defendant any material or information which relates to the subject matter of the case and is reasonably likely to be material.
What the defendant is required to show to establish that a particular request is "reasonable" will turn in large part on what "material or information" the defendant is seeking to obtain. Guided by Riley and Carpenter, and concluding that a third party's expectation of privacy is no less than a defendant's, the required showing for discovery of the contents of a cellphone pursuant to CPL § 245.30(3) is probable cause to believe it "relates to the subject matter of the case" and is "reasonably likely to be material" to the defense. What the Legislature meant by the term "reasonably likely" is unclear, but it certainly requires no more than a showing of probable cause.
In making his showing in this case, the defendant notes that Garcia had been in a relationship with Ms. Felix and had fathered her child. He asserts that Ms. Felix is expected to be a prosecution witness at trial whom the People will use to supply a motive for the homicide. According to the discovery provided by the People, Ms. Felix, along with another person, whom the defendant describes as "her putative employer and a much older man," arrived at the scene just before Garcia was killed. When interviewed by two detectives on January 10, 2020, more than a month after the homicide, Ms. Felix "describe[d] a series of text messages, Facebook contacts, and calls between her and both men," and said that Garcia had been "blasting [her] phone" in the two days prior to the incident. She also told the detectives that Garcia had come to her apartment building at 5:00 a.m. that morning "to discuss an upcoming birthday party for their daughter," and described "her relationship with both men; [and] her claim that Dustin Dominicci was possessive."
The interview was recorded, and a transcript provided to the Court confirms the accuracy of the defendant's description of the interview. See defendant's exhibit B.
The defendant insists that the contents of Ms. Felix's cellphone contain both Brady and impeachment material because the reason she gave the detectives for Garcia's presence outside her residence "is completely at odds with what is reflected in screen shots of a portion of their text conversations." In the screen shots, which Ms. Felix emailed to the detectives, Garcia states, inter alia, "I fucking hate you. I want my fucking ring back," and "I'm dropping all ya shit off, im ya house rn (sic) As soon as I put something warm on." In a subsequent text, he tells her that there is an "emergency," "I'm send someone to the hospital," that he has to "handle the shit I started," and that he is taking a cab to drop off their daughter and will let her know when he arrives at her "crib." When he does arrive, he texts her a picture of his hand on the entry buzzer. See defendant's exhibit D.
In another text, the defendant writes that he is still angry, but apologizes "for all the mean things [he] said," that he no longer wants his ring back, and does not hate her.
Based on this showing, the defendant hypothesizes that Garcia may have communicated to Ms. Felix over her cellphone "words to the effect that he does not like that she's dating Mr. Dominicci and if she stays with him, he's going to hurt Dominicci." The defendant also asserts that in her interview with the detectives, Ms. Felix "dodge[d]... questions [related to her phone] claiming she has a bad memory for names and numbers... and that this information is in her cell phone which is damaged."
The defendant contends that the contents of Ms. Felix's cellphone are relevant to the defense because "the cellphone data from her phone is likely to establish additional inconsistencies in what Felix represented happened that night and what preceded the event." He also argues that "[t]exts, emails, other messaging platforms and social media will demonstrate the nature of her relationship with the decedent, the defendant and {Ms. Felix's employer]; about what work she actually did in the insurance field as compared to what she reported to law enforcement." The defendant maintains that these are "key factors in judging her credibility should she describe Mr. Dominicci as the instigator and aggressor in the fight."
In her January 10, 2020 interview with the detectives, Ms. Felix stated that although she had known the defendant for "a couple of years," they had been only friends. However, she and Garcia had broken up "end of July, beginning of August," and she began "seeing" the defendant "like middle-ish of September," 2019, "like two months" before the homicide.
Based on the above, there is probable cause to believe that text messages and other communications on Ms. Felix's cellphone between her and Garcia for the period from September 10, 2019 (a reasonable approximation of the middle of September), through December 8, 2019 (the date of the homicide), relate to the subject matter of the case and are "material" to the defendant's claim of self-defense. While, given their ongoing relationship, it may be probable that her cellphone contains communications between Ms. Felix and the defendant, he has not demonstrated that, if any such communications exist, they are material to the defendant's claim of self-defense. Of course, as a party to any such communications, the defendant should be aware of their content and in a position to furnish the requisite showing related to them, if any exists. Only baseless speculation supports the claims that there may be communications concerning her relationship with the older man with whom she arrived at the scene and the "work she actually did in the insurance field" that relate to her credibility or are otherwise material to the defense.
The inquiry, however, is not limited to establishing that the information sought "relates to the subject matter of the case" and is "reasonably likely to be material." The defendant must also show he "is unable without undue hardship to obtain the substantial equivalent by other means." CPL § 245.30(3). The People have possession of Garcia's cellphone, have extracted the data from it, and have agreed to provide that data to the defendant. Moreover, the defendant's motion also sought discretionary discovery of the data in the cellphone of Garcia's father, Alejo Garcia, which the police had taken possession of, but had returned to him. In their response, the People state that this phone "was used by the deceased the night of December 7, 2019 into the early morning hours of December 8, 2019 prior to him being fatally stabbed by the defendant Dustin Dominicci." Alejo Garcia, through counsel, has agreed to provide his cellphone to the defendant and has consented to the unlimited extraction of data from it. Given the defendant's access to the data in these two phones, he will have, through these alternative means, access to all the cellphone communications between Garcia and Ms. Felix during the period from September 10, 2019 through December 8, 2019, and thus to the "substantial equivalent" of the data he would otherwise be entitled to obtain from Ms. Felix's cellphone.
In her interview, Ms. Felix told the detectives that Garcia had his father's cellphone on him during the incident and she took it from his coat pocket. During the interview, the cellphone was in her possession.
Accordingly, the defendant's motion for discretionary discovery of the data in Ms. Felix's cellphone is denied. However, the order for preservation of that phone and its contents shall remain in effect pending confirmation to the Court that the defendant has received the data from the cellphones of Garcia and his father.
This constitutes the Decision and Order of the Court.