Opinion
Ind. No. 1099/2021
05-23-2022
The People of the State of New York v. Christine Vega, Defendant.
For the People Melinda Katz, District Attorney, Queens County (Lauren D. Reilly, Esq., Of Counsel) For the Defendant The Legal Aid Society (Paul S. Montgomery, Esq., Of Counsel)
Unpublished Opinion
For the People Melinda Katz, District Attorney, Queens County (Lauren D. Reilly, Esq., Of Counsel)
For the Defendant The Legal Aid Society (Paul S. Montgomery, Esq., Of Counsel)
CASSANDRA M. MULLEN, J.
Defendant Christine Vega moves, through counsel, in a motion dated May 17, 2022, to renew and reargue the portion of the Court's decision on defendant's omnibus motion denying her motion to controvert the search warrant. The People's response, filed on May 20, 2022, opposes defendant's motion. The Court grants defendant leave to renew and reargue to the extent that it has reviewed the current motion papers and exhibits submitted by both defendant and the People, as well as the prior motion practice. Having done so, defendant's motion to controvert the search warrant is again denied.
Background
In an omnibus motion dated January 7, 2022, defendant moved, inter alia, for an order controverting the search warrant, arguing that the information relied upon by the police in obtaining the warrant was unreliable.
In their opposition to defendant's omnibus motion dated January 19, 2022, the People argued that the Court should deny defendant's motion to controvert the search warrant without a hearing, as the warrant conformed with constitutional requirements, defendant had failed to allege in her motion that the affiant of the warrant made a materially false statement either intentionally or with reckless disregard for the truth, and had also failed to allege how any such falsehood was material to the finding of probable cause.
This Court, in a decision dated January 25, 2022, denied defendant's motion to controvert the search warrant, finding that the search warrant was supported by probable cause and was specific as to location, items to be searched, and the target of the investigation.
The Current Motion
In a motion dated May 17, 2022, defendant moves to renew and reargue the portion of the Court's decision on defendant's omnibus motion denying her motion to controvert the search warrant. Defendant states that the police applied for a search warrant for 344 Beach 67th Street in Far Rockaway. At a pre-trial hearing, Police Officer Bradley testified that he responded to that location to execute the warrant. However, defendant now asserts for the first time that: "according to the Warrant Return, Officer Bradley executed the warrant at 324 Beach 67th Street. According to the police reports, all of the evidence was seized at this location. The defendant does not have any interest or connection the [sic] 324 Beach 67th Street." For this reason, defendant argues that the warrant was "improperly executed" and all evidence "seized under the warrant must be suppressed."
In a response dated May 20, 2022, the People oppose defendant's motion. Initially, the People point out that "the report annexed to [defendant's] motion which [defendant] incorrectly refers to as the search warrant return is actually a copy of the ECT report, which incorrectly states the address of the location searched." The People argue that the Court should deny defendant's motion to reargue on the basis that it was improperly made. The People note that "defendant has failed to articulate any misapprehension or law or fact on the part of the issuing Judge that warrant's [sic] a motion to re-argue." The People further argue that the defendant failed to include her current argument in her initial motion. Finally, the People contend that defendant would have failed to meet her burden even if she had included this argument in her omnibus motion because she has not shown that the affidavit in support of the warrant application contained a "knowingly false statement that was necessary to support a finding of probable cause."
Discussion
A motion for leave to renew must be "based upon new facts not offered on the prior motion that would change the prior determination or... demonstrate that there has been a change in the law that would change the prior determination," and must "contain reasonable justification for the failure to present such facts on the prior motion." CPLR § 2221[e]. The decision to grant renewal rests in the sound discretion of the court. See Eskenazi v Mackoul, 92 A.D.3d 828, 828 [2d Dept 2012].
A motion for leave to reargue must be based "upon matters of fact or law allegedly overlooked or misapprehended by the court" in determining the case. CPLR § 2221[d][2]. A motion to renew "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." Renna v Gullo, 19 A.D.3d 472, 473 [2d Dept 2005]; Rubinstein v Goldman, 225 A.D.2d 328, 329 [1st Dept 1996]; see also People v D'Alessandro, 13 N.Y.3d 216, 219 [2009] ["It is well settled that a motion to reargue is not an appropriate vehicle for raising new questions... which were not previously advanced"]. In other words, a motion to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented." McGill v Goldman, 261 A.D.2d 593, 594 [2d Dept 1999].
The Court has granted defendant's motion to renew and reargue to the extent that it has reviewed the current motion papers and exhibits submitted by both defendant and the People, as well as the prior motion practice. For the reasons set out below, the court denies defendant's motion to controvert the search warrant.
First, defendant has not offered any reasonable excuse as to why she failed to include her current argument in her initial motion to controvert the search warrant. See Schenectady Steel Co., Inc. v Meyer Contr. Corp., 73 A.D.3d 1013 [2d Dept 2010]; CPLR § 2221[e]. Defendant filed her omnibus motion with this Court on January 7, 2022. The ECT Report that defendant has attached to her current motion, and which constitutes the gravamen of her argument, is dated August 2, 2021. Defendant does not claim that she was unaware of the ECT report prior to filing her motion in January 2022 or that she had never received the report. Accordingly, the Court finds that defendant has wholly "failed to offer a reasonable justification" for not including this argument in her initial motion. United Med. Assoc., PLLC v Seneca Ins. Co., Inc., 125 A.D.3d 959, 961 [2d Dept 2015].
Defendant has also failed to show that this Court overlooked or misapprehended any matters of law or fact in deciding the original motion. Indeed, defendant, in her current motion, does not actually challenge the legal analysis or the factual findings that the Court made in its January 25 decision.
However, even if defendant had made such a showing, she has still failed to establish a legitimate basis to controvert the search warrant. Both the federal and state constitutions provide that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend IV; NY Const art I, § 12. To satisfy the particularity requirement, "the warrant's directive must be 'specific enough to leave no discretion to the executing officer.'" People v Brown, 96 N.Y.2d 80, 84 [2001] (citing People v Darling, 95 N.Y.2d 530, 537 [2000]). "This does not mean that hypertechnical accuracy and completeness of description must be attained but rather, from the standpoint of common sense, that the descriptions in the warrant and supporting affidavits be sufficiently definite" to allow the police to identify the people, places, or things to be searched. People v Nieves, 36 N.Y.2d 396, 401 [1975]. Thus, "[e]rrors in a warrant will not necessarily invalidate a search as long as the executing officer can identify the subject premises with reasonable certainty." People v Graham, 220 A.D.2d 769, 771 [2d Dept 1995], lv denied 89 N.Y.2d 942 [1997]. Finally, it should be noted that there is a "strong preference" in favor of upholding a search warrant. People v Hanlon, 36 N.Y.2d 549, 558 [1975].
The case of People v Graham, 220 A.D.2d at 770, is highly instructive. In that case, a police officer applied for a warrant to search a certain residence with which he was familiar. Id. However, the search warrant, due to a typographical error, mistakenly directed that the search be conducted at a different address. Id. The police then conducted a search of the correct location rather than the different address actually listed in the warrant. Id. The defendants argued that the warrant, although executed at the correct location, failed to meet constitutional requirements due to the incorrect address listed on the warrant. Id. at 770-771. The Appellate Division disagreed, holding that "the erroneous address should not be viewed in isolation, and the ambiguity was capable of easy resolution by reference to the supporting affidavit which identified the correct address no less than three times." Id. at 771. The court placed particular importance on the fact that "it was the same officer who applied for and who executed the warrant." Id. at 772. That officer "knew which building was intended to be searched, and since he was the one who executed the warrant, there was no reasonable probability that the wrong premises would be searched regardless of the error contained in the warrant." Id.
There is no meaningful distinction to be drawn between Graham and this case. Here, Police Officer Christopher Bradley applied for a warrant to search "344 Beach 67 Street." In his affidavit in support of the application, he averred that he had been to this location and had seen defendant nearby. In fact, defendant told Officer Bradley on the scene that her children were inside the home at 344 Beach 67 Street. Devon Rhoden, the complaining witness, further testified that he had seen defendant go in and out of that location. Neither the warrant, which listed 344 Beach 67 Street as the address to be searched, nor Officer Bradley's affidavit mention 324 Beach 67 Street.
The Court finds that Officer Bradley "knew which building was intended to be searched, and he was the one who executed the warrant." See Graham, 220A.D.2d at 772. Accordingly, "there was no reasonable probability that the wrong premises would be searched regardless" of the error contained in the ECT Report. Id. at 772; see also People v Gramson, 50 A.D.3d 294, 294 [1st Dept 2008], lv denied 11 N.Y.3d 832 [2008] ["as it was the same detective who applied for and executed the warrant, there was no possibility that the wrong premises would be searched"]; People v Rodriguez, 254 A.D.2d 95, 95 [1st Dept 1998] ["the officer who both applied for and executed the warrant had personal knowledge of the place to be searched, making it inconceivable that he would have searched" the wrong location due to "an obvious typographical error"]. Based on the warrant, as well as Officer Bradley's affidavit and testimony, the Court agrees with the People that the entry on the ECT Report was a typographical error. Aside from the report, defendant has proffered no evidence that the warrant was executed at the incorrect address. For these reasons, as well as those stated in the Court's prior decision, defendant has failed to provide sufficient evidence that the search warrant was obtained or executed unlawfully.
Accordingly, defendant's motion to controvert the search warrant is again denied.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.