Opinion
2012-09-10
The PEOPLE of the State of New York, v. Aaron MILES, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Cindy Espinosa, Esq., Assistant District Attorney, for the People. Steven Banks, Legal Aid Society by Claire Nicolay, Esq., for Defendant.
Charles J. Hynes, District Attorney, Kings County, by Cindy Espinosa, Esq., Assistant District Attorney, for the People. Steven Banks, Legal Aid Society by Claire Nicolay, Esq., for Defendant.
JOHN H. WILSON, J.
Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor, and one count of Unlawful Possession of Marijuana(PLSec. 221.05), a violation.
Defendant was also initially charged with one count of Endangering the Welfare of a Child (PL Sec. 260.10), however, that charge was never converted, and was dismissed on September 7, 2011 pursuant to CPL Sec. 30.30.
By motion dated June 29, 2012, Defendant seeks leave to renew, pursuant to CPL Sec. 2221(e) his motion dated October 4, 2011 to controvert the search warrant. That motion was denied by this Court's order dated November 7, 2011.
The Court has reviewed the Court file, which includes Defendant's prior motion, People's response dated October 31, 2011, and the Court's decision, dated November 7, 2011. The Court has also reviewed Defendant's current motion, the People's response dated August 8, 2012, and Defendant's Reply dated August 10, 2012.
For the reasons stated below, Defendant's motion to renew his motion to controvert the search warrant is denied.
As noted in this Court's decision of November 7, 2011, Defendant was arrested on May 18, 2011 after the execution of a search warrant at Apartment 3F of 1782 Bay Ridge Parkway, Brooklyn, New York. Among the items recovered during the search of the premises were 1 ziplock bag of marijuana, 1 marijuana cigar, and 1 ziplock bag of cocaine residue.
In its prior decision, this Court applied the “two-pronged” test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which the New York Court of Appeals adopted in People v. Griminger 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409 (1988), and found that “the information presented to the issuing court ... established probable cause for Justice Calabrese to issue the search warrant on said date. Further, this Court finds that it was reasonable for Justice Calabrese to rely upon Police Officer Essence Jackson's warrant application. The application confirms that the confidential informant exists, was reliable, and had a basis for the knowledge they communicated to the police and the court.” See, November 7, 2011 decision, p. 7.
In seeking renewal of the denial of his initial motion to controvert the search warrant, Defendant relies upon the case of People v. Johnson, 35 Misc.3d 1233(A), 2012 WL 1971140 (Crim.Ct., Kings Cty.2012). Defendant asserts that “(i)n the Johnson case, a hearing pursuant to People v. Darden was ordered on facts nearly identical to the instant case.” See, Defendant's motion dated June 29, 2012, p. 3. However, save for the fact that the confidential informant did not appear before the Court which issued the search warrant, Johnson is easily distinguishable from the instant matter.
In Johnson, the Court ordered a hearing pursuant to People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 (1974), to determine whether or not there was probable cause for the issuance of a warrant. Johnson relies upon the holding of People v. Burks, 134 A.D.2d 604, 521 N.Y.S.2d 718 (2d Dept.1987). There, a Darden hearing was ordered “(b)ecause the police did not verify that the purchase (of narcotics made by the confidential informant) actually occurred at defendant's apartment, but merely that it came from the same building in which defendant's apartment is located.” Johnson, 2012 WL 1971140, at 2.
In Johnson, “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 ... allegedly purchased crack cocaine from an individual in the apartment ...” 2012 WL 1971140, at 1. As in Burks, the specific apartment of the purchase is not identified, leading the Court to conclude “that the informant may have obtained the cocaine from another apartment or a public area of the building.” 2012 WL 1971140, at 2.
In the instant matter, the specific apartment where the “controlled buys” were made is identified, that being Apartment 3F of 1782 Bay Ridge Parkway, Brooklyn, New York.
Further, in Burks “the affidavit in support of the warrant stated that the informant was of ‘no known reliability.’ ” Burks, 134 A.D.2d at 605, 521 N.Y.S.2d 718. See, also, People v. Shaw, 23 Misc.3d 1132(A), 2009 WL 51052 (City Ct., Rochester, 2009), at 4. In the instant matter, “the confidential informant had previously participated in the issuance and execution of 11 search warrants in Kings County. The execution of 9 of these search warrants led to the recovery of weapons, ammunition, controlled substances, marijuana, paraphernalia, and United States Currency, and led to the arrest and prosecution of at least 10 individuals in Kings County.' See, Affidavit of Police Officer Essence Jackson, sworn to May 12, 2011, p. 1, para. 2.” See, November 7, 2011 decision, p. 7.
In fact, Johnson cites to cases more recent than Burks, which hold 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 the police officers who utilized the informant in conducting' multiple controlled buys.” 2012 WL 1971140, at 2, citing People v. Keyes, 291 A.D.2d 571, 738 N.Y.S.2d 678 (2d Dept.2002), People v. Williams, 247 A.D.2d 415, 667 N.Y.S.2d 936 (2d Dept.1998), app. den.,92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454 (1998) and People v. Joshua, 286 A.D.2d 343, 728 N.Y.S.2d 686 (2d Dept.2001), lv. app. den.,97 N.Y.2d 706, 739 N.Y.S.2d 107, 765 N.E.2d 310 (2002).
This line of authority has been consistently followed by the Second Department. See, People v. Brucciani, 82 A.D.3d 1001, 919 N.Y.S.2d 54 (2d Dept.2011), and cases cited therein; People v. Hunter, 56 A.D.3d 684, 868 N.Y.S.2d 87 (2d Dept.2008).
Following this line of authority, this Court found that the information received from the confidential informant, which was detailed in Officer Jackson's affidavit, was corroborated “in every relevant respect by the personal observations of the police officers who utilized the informant in conducting' multiple controlled buys.”
This language from this Court's decision of November 7, 2011 should also be emphasized:
Courts have found probable cause for the issuance of a search warrant so long as the “information presented the issuing judge ... (is) sufficient to support a reasonable belief that ... evidence of a crime (might) be found' at the premises ... and that it was more probable than not that criminal activity was taking place at the place to be searched.” See People v. Pinchback, 187 A.D.2d 540, 541, 589 N.Y.S.2d 600 (2d Dept.1992), affd., 82 N.Y.2d 857, 609 N.Y.S.2d 158, 631 N.E.2d 100 (1993); citing, People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 (1985). Thus, there is no per se requirement that the issuing Court conduct an examination of the confidential informant before issuing a search warrant based upon information that individual presents to an Officer, who then provides that information to a Court in the form of a sworn affidavit. See, November 7, 2011 decision, p. 7 (emphasis added).
It should also be noted that the procedure endorsed in Johnson calls for the police to “verify that the purchase actually occurred at defendant's apartment.” Johnson, 2012 WL 1971140, at 2. To accomplish this, the police would be required to have officer's stationed outside of the drug seller's apartment, watching the confidential informant make contact with the drug seller. It takes very little imagination to see the physical dangers such close police surveillance of a drug transaction would entail for both the police and the confidential informant.
Accordingly, Defendant's motion to renew the denial of his motion to controvert the search warrant pursuant to CPL Article 690, and suppress any evidence recovered pursuant to the search warrant, is hereby denied in its entirety.
All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.