Opinion
2011KN090866
05-29-2012
The People of the State of New York, v. Katisha Johnson and Xavier Topping, Defendants.
, J.
Defendants are each charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03). They move pursuant to CPL 710 for an order to controvert the search warrant and suppress the evidence obtained thereunder on the ground that the search warrant was not based on probable cause. In addition, they move for dismissal of the accusatory instrument in the interest of justice pursuant to CPL 170.30 (g). The People oppose.
For the reasons that follow, defendant's motion to controvert the search warrant and suppress the evidence obtained thereunder is held in abeyance pending an in camera Darden hearing and the motion to dismiss is denied.
As a preliminary matter, the People note that the motion was not made within 45 days after arraignment (CPL 255.20). Defendants allege a denial of a Fourth Amendment right and, more to the point, did not receive the search warrant materials until March 7, 2012, just days before filing the instant motion on March 30, 2012. The motion is, therefore, timely.
Based upon the court papers, the search warrant, the unredacted supporting affidavit, and the minutes of the search warrant application, I make the following findings of fact and conclusions of law.
On November 10, 2012, Detective Jennifer Lavelle, Shield # 1394 of Brooklyn Narcotics, Brooklyn North Command, appeared before Judge Larry Stephen to obtain the subject search warrant based upon information provided by a registered confidential informant who had allegedly visited the target location and purchased controlled substances there. The informant did not appear nor did he or she provide any sworn statement. According to Detective Lavelle, the informant made two so-called "controlled buys" in each of which he or she entered the six-story apartment building in which the target apartment is located and, by prior arrangement with the detective, allegedly purchased crack cocaine from an individual in the apartment with money provided by Detective Lavelle. Before each such buy, Detective Lavelle searched the informant and found neither money nor contraband on him/her, but upon his/her return from the building, found a small quantity of crack cocaine.
People v Darden (34 NY2d 177 [1974]) established a requirement that when a police officer testifies at a suppression hearing about the communications from a confidential informant, the People must produce the informant for an in camera inquiry by the judge if the informant's communications are necessary to establish probable cause. Neither defendant nor defense counsel may be present at such an inquiry, but defendant may submit questions for the court to consider asking the informant (People v Escalera, 300 AD2d 1082 [4th Dept. 2002]; see People v Clark, 54 NY2d 941 [1981] [defendant cannot be heard to complain where he fails to submit questions to the court or fails to request a summary]). As the Court of Appeals explained, the hearing is a necessary accommodation of two competing concerns. On the one hand, the People may, and sometimes must, rely on a confidential informant to establish probable cause. To maintain the informant's secrecy, in lieu of producing the informant at a suppression hearing, the People may produce the informant before a judge for interrogation regarding the informant's existence and the communications made by the informant to the police. In order to recognize what would normally be the defendant's right to cross-examine the People's witnesses at the suppression hearing, the defendant may submit written questions for the judge to ask, and is entitled to receive a summary of the hearing in which the informant appears (see People v Edwards, 69 NY2d 814 [1987]).
A Darden hearing is unnecessary when probable cause can be found independently of information provided by the informant. Thus, in People v Farrow (98 NY2d 629 [2002]) a Darden hearing was not required because probable cause was established by the independent observations of the officers of a drug transaction at the location. A Darden hearing also is not required when the informant testifies under oath before the judge who issues the search warrant (People v Serrano, 93 NY2d 73 [1999]).
Some Second Department decisions state that a Darden hearing is unnecessary where the information provided by the confidential informant was corroborated "in every relevant respect by the personal observations of police officers who utilized the informant in conducting" multiple controlled buys (People v Keyes, 291 AD2d 571 [2nd Dept. 2002]; People v Williams, 247 AD2d 415 [2nd Dept.], appl den, 92 NY2d 863 [1998]; see People v Joshua, 286 AD2d 343 [2nd Dept.], lv den 97 NY2d 706 [2002]), thus suggesting that in a controlled buy situation a Darden hearing need not be ordered. But these decisions fail to discuss what information was corroborated by the testifying officers. In contrast, the Second Department, in People v Burks (134 AD2d 604 [2nd Dept. 1987]), gave a detailed explanation of why, on facts such as those in the present case, a Darden hearing is necessary. In Burks, the informant made a controlled buy of cocaine on behalf of the police in a multi-unit apartment building. Because the police did not verify that the purchase actually occurred at defendant's apartment, but merely that it came from the same building in which defendant's apartment was located, the court concluded that the informant may have obtained the cocaine from another apartment or a public area of the building (id.; cf. People v Hamilton, 227 AD2d 669 [3rd Dept. 1996] [court should have conducted in camera Darden hearing as informant's testimony was necessary to establish probable cause]). The conclusion of the Second Department in Burks is consistent with the observation of Justice Barry Kamins in New York Search and Seizure that, where the informant allegedly makes a controlled buy in a multi-unit building, the officer's observations of the informant's entry into the building may not provide sufficient corroboration because the officer "may not know for a fact that the officer went into a particular apartment to buy the drugs" (Kamins, New York Search & Seizure, § 7.03 [4] [b] at 7-110). For these reasons, an in camera Darden hearing is necessary in this case.
With regard to the interest of justice portion of the present motion, the discretionary authority to dismiss an accusatory instrument in furtherance of justice should be exercised rarely and only in those few cases where there is a compelling factor which clearly demonstrates that prosecution would be an injustice (see People v Candelaria, 50 AD3d 913 [2nd Dept. 2008]). The court concludes that this is not that rare case, in particular because defendants address not a single statutory factor relevant to such dismissal.
Accordingly, the decision on the motion to controvert the search warrant and suppress the evidence obtained thereunder is held in abeyance pending an in camera Darden hearing. Defendants are granted two weeks from the date of this decision to submit questions for the court's consideration and the People are directed to arrange for the production of the informant within two to six weeks from the date of this decision. Defendants' motion to dismiss the accusatory instrument in the interest of justice is denied.
The foregoing constitutes the decision and order of the court.
_________________________
Dated: May 29, 2012
John T. Hecht
J.C.C.
Defendant Katisha Johnson filed the motion on March 30, 2012. On April 6, 2012, defendant Xavier Topping joined in the motion.