Opinion
195 KA 18-00389
06-09-2023
The PEOPLE of the State of New York, Respondent, v. Aykut OZKAYNAK, Defendant-Appellant.
DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree ( Penal Law § 125.25 [1] ) and tampering with physical evidence (§ 215.40 [2]). We previously rejected defendant's contention challenging the weight of the evidence, and we held this case, reserved decision and remitted the matter to County Court to determine whether the warrant authorizing law enforcement officials to obtain, inter alia, cellular site location information (CSLI) from defendant's cellular service provider was supported by probable cause ( People v. Ozkaynak, 203 A.D.3d 1616, 1616-1617, 161 N.Y.S.3d 921 [4th Dept. 2022] ). Upon remittal, the court determined that there was sufficient information in the warrant application to support a reasonable belief that evidence of a crime would be contained in defendant's cellular telephone records. We now address the remaining issues left unresolved on the prior appeal.
We reject defendant's contention that the search warrants authorizing searches for a motel room, electronic devices seized from that motel room and the contents of his cellular phone, including CSLI, were not supported by probable cause. It is well settled that " ‘a search warrant may be issued only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur ..., and where there is sufficient evidence from which to form a reasonable belief that evidence of the crime may be found inside the location sought to be searched’ " ( People v. McLaughlin , 193 A.D.3d 1338, 1339, 143 N.Y.S.3d 255 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 697, 172 N.E.3d 810 [2021] ; see People v. Hightower , 207 A.D.3d 1199, 1200, 171 N.Y.S.3d 297 [4th Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 202, 197 N.E.3d 482 [2022] ).
"Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" ( People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ; see People v. Wright , 210 A.D.3d 1486, 1491, 178 N.Y.S.3d 662 [4th Dept. 2022] ; People v. Griswold , 155 A.D.3d 1658, 1659, 64 N.Y.S.3d 450 [4th Dept. 2017], lv denied 31 N.Y.3d 984, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018] ). "Affording great deference to the determination of the issuing Magistrate and reviewing the application in a common-sense and realistic fashion" ( People v. Humphrey , 202 A.D.3d 1451, 1451, 158 N.Y.S.3d 907 [4th Dept. 2022], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 474, 185 N.E.3d 995 [2022] [internal quotation marks omitted]; see generally People v. Johnson , 66 N.Y.2d 398, 406, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] ), we conclude that the information contained in the search warrant applications provided a reasonable belief that information from the motel room, electronic devices and cellular phones would connect defendant to the murder of the victim or, at the very least, would connect him to locations where physical evidence had been tampered with, i.e., the removal and subsequent burning of the victim's body in a fire pit located some distance away from the victim's residence.
Contrary to defendant's further contention, the search warrants with limited exception were not overly broad. Although defendant failed to preserve that contention with respect to the data to be obtained from the electronic devices and cellular phones (see People v. Williams , 127 A.D.3d 612, 612, 8 N.Y.S.3d 133 [1st Dept. 2015], lv denied 27 N.Y.3d 1009, 38 N.Y.S.3d 118, 59 N.E.3d 1230 [2016] ; see generally People v. Samuel , 137 A.D.3d 1691, 1693, 28 N.Y.S.3d 526 [4th Dept. 2016] ), we nevertheless exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
We agree with defendant that, to the extent that the warrant for the six cellular phones and laptop computers permitted the seizure of "all data and graphic files," it was overly broad (see People v. Thompson , 178 A.D.3d 457, 458, 116 N.Y.S.3d 2 [1st Dept. 2019] ). We can, however, sever the overbroad portion of the warrant "because the warrant was largely specific and based on probable cause" ( People v. Brown , 96 N.Y.2d 80, 88, 725 N.Y.S.2d 601, 749 N.E.2d 170 [2001] ; see People v. Couser , 303 A.D.2d 981, 982, 756 N.Y.S.2d 686 [4th Dept. 2003] ). The remaining directives in that warrant, which limit the search and seizure to items pertaining to the death of the victim and concealment of that crime, are appropriately specific and particularized (see Brown , 96 N.Y.2d at 88, 725 N.Y.S.2d 601, 749 N.E.2d 170 ; see generally People v. Bush , 189 A.D.3d 643, 644, 138 N.Y.S.3d 31 [1st Dept. 2020] ), and the search conducted by the police did not exceed those remaining directives (see Brown , 96 N.Y.2d at 89, 725 N.Y.S.2d 601, 749 N.E.2d 170 ).
With respect to defendant's last challenge to the warrants, we conclude that the description of the CSLI and the items to be recovered from the motel room "was not broader than was justified by the probable cause upon which the warrants were based" ( People v. Crupi , 172 A.D.3d 898, 899, 100 N.Y.S.3d 56 [2d Dept. 2019], lv denied 34 N.Y.3d 950, 110 N.Y.S.3d 641, 134 N.E.3d 640 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2815, 207 L.Ed.2d 148 [2020] ; see People v. Socciarelli , 203 A.D.3d 1556, 1558, 164 N.Y.S.3d 749 [4th Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 241, 189 N.E.3d 348 [2022] ; cf. People v. Carter , 31 A.D.3d 1167, 1169, 818 N.Y.S.2d 380 [4th Dept. 2006] ).
Contrary to defendant's contention, the court properly denied his challenge for cause of a prospective juror. That contention is properly before us inasmuch as defendant used a peremptory challenge on that juror and thereafter exhausted his peremptory challenges (see CPL 270.20 [2] ; People v. Culhane , 33 N.Y.2d 90, 97, 350 N.Y.S.2d 381, 305 N.E.2d 469 [1973] ; People v. Hargis , 151 A.D.3d 1946, 1948, 57 N.Y.S.3d 850 [4th Dept. 2017] ). Although the prospective juror expressed concern whether she would be preoccupied with work-related issues, she never stated that her preoccupation with work would affect her ability to be fair and impartial (see People v. Wilson , 52 A.D.3d 941, 942, 859 N.Y.S.2d 518 [3d Dept. 2008], lv denied 11 N.Y.3d 743, 864 N.Y.S.2d 401, 894 N.E.2d 665 [2008] ; see also People v. Acevedo , 136 A.D.3d 1386, 1387, 25 N.Y.S.3d 761 [4th Dept. 2016], lv denied 27 N.Y.3d 1127, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016] ). "[D]ismissal is not warranted unless the juror indicates that [they] would be distracted or preoccupied to the extent that it would preclude [them] from deliberating in a fair and impartial manner" ( People v. DeFreitas , 116 A.D.3d 1078, 1080, 984 N.Y.S.2d 423 [3d Dept. 2014], lv denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ). "Considering that almost every potential juror is inconvenienced by taking a week or more away from one's work or normal routine, and that each has personal concerns which could cause some distraction from a trial," we conclude that the court "did not abuse its discretion in denying defendant's challenge for cause" ( Wilson , 52 A.D.3d at 942, 859 N.Y.S.2d 518 ; see Acevedo , 136 A.D.3d at 1387, 25 N.Y.S.3d 761 ).
Defendant further contends that his "purported admission" to a fellow inmate should have been suppressed because that inmate was acting as an agent of the prosecution and thus violated defendant's right to counsel when he solicited the statements from defendant. We reject that contention. Although there was an existing agreement between the inmate and the federal government, the evidence at the suppression hearing establishes that the inmate was working independently of the prosecution. Where, as here, "an informer works independently of the prosecution , provides information on [their] own initiative, and the government's role is limited to the passive receipt of such information, the informer is not, as a matter of law, an agent of the government" ( People v. Cardona , 41 N.Y.2d 333, 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306 [1977] [emphasis added]; see People v. Davis , 38 A.D.3d 1170, 1171, 832 N.Y.S.2d 352 [4th Dept. 2007], lv denied 9 N.Y.3d 842, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007], cert denied 552 U.S. 1065, 128 S.Ct. 713, 169 L.Ed.2d 559 [2007] ). Moreover, "[m]ore than a cooperation agreement is required to make an informant a government agent with regard to a particular defendant " ( United States v. Whitten , 610 F.3d 168, 193 [2d Cir. 2010] [emphasis added]; see United States v. Birbal , 113 F.3d 342, 346 [2d Cir. 1997], cert denied 522 U.S. 976, 118 S.Ct. 433, 139 L.Ed.2d 333 [1997] ). Rather, "[a]n informant becomes a government agent vis-a-vis a defendant when the informant is ‘instructed by the police to get information about the particular defendant’ " ( Whitten , 610 F.3d at 193 ; see Birbal , 113 F.3d at 346 ), and there was no such instruction here.
Based on our determination, we reject defendant's additional contention that he was denied effective assistance of counsel when defense counsel did not seek to reopen the suppression hearing after the inmate testified at trial that he repeatedly asked questions of defendant (see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
The sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that they do not warrant reversal or modification of the judgment.