Opinion
3933.
Decided December 10, 2004.
DWIGHT D. KRAEMER, ESQ. Westbury, NY, Village Attorney and Prosecutor.
Anthony Mastroianni, Esq., Westbury, NY, for the Defendant.
There is a housing crisis in this community and elsewhere on Long Island which has been addressed previously by this Court and which is caused by a shortage of affordable housing and failing immigration policies nationwide. See People v. Ventura, (State Reporter Ref. No. QXK000666) (edited for publication); New York Law Journal, May 25, 2004 at 1, 17, 19 20 and Scott E. Mollen, Realty Law Digest, Real Estate Update, New York Law Journal, July 21, 2004 at 5 and 9. The shortage in housing has caused single family homes to be illegally occupied often creating dangerous, uninhabitable living conditions. This overcrowding places an added burden on all municipal services and decreases real estate values for homeowners who choose to be law abiding. In light of these conditions, the Village and its residents are interested in expediting cases where alleged illegal occupancy is an issue. Where a case is proceeding to trial, the easiest way to do that is to stipulate to the holding of pre-trial hearings. Otherwise the defense is entitled, at least 45 days from arraignment, to file motion papers, the People may then respond and the defense will next reply. The motion is then submitted and the Court will typically take up to 60 days to decide the pre-trial motions which may determine such preliminary questions as to whether there should be a dismissal of the charges, the admissibility of statements and other evidence. They do not decide the ultimate questions of guilt or innocence which are ordinarily determined by a plea or following a trial. All of this takes time while the alleged dangerous conditions continue to exist. A better procedure in Village Courts where many defendants are pro se or where legal fees may be small, thus not warranting extensive motion practice, is for both sides to stipulate to expedited pre-trial hearings. That was suggested here by the Court and agreed to by the defense, but not the prosecution. In the absence of a stipulation, protracted motion practice then ensues where the Court must decide whether to grant the motions, a/k/a pre-trial applications, and set the matter down for pre-trial hearings. Following the holding of pre-trial hearings, legal memoranda are then submitted and the Court renders another decision on what matters, if any, should be suppressed, etc. This then becomes the second decision that the Court must render. The third and final decision is usually as to guilt or innocence.
Where pro se defendants are unable to draft their own motion papers the Court must jump into that breach and cannot allow their constitutional rights to be overlooked. The Court must then sua sponte decide whether pre-trial hearings are warranted even in the absence of pre-trial motion papers. The prosecutor is always free to object.
The defense offered to stipulate to pre-trial hearings in this case. The People would not agree to stipulate, thereby compelling the defendant to file a formal motion. A warrantless search of premises known as 585 Rutland Street, Westbury, New York occurred on June 30, 2004. Soon thereafter the parties appeared in this court and a motion schedule was set. If a dangerous condition exists at the premises then the Village would do well to reconsider their position on stipulating to pre-trial hearings because nearly six months after the search, motions have just been submitted for decision on December 9, 2004.
Under these circumstances it seems logical for the parties to stipulate to pre-trial hearings. Indeed stipulations in lieu of motions have been commonplace in our County Court for approximately twenty years. Elaborate, time consuming and expensive motion practice should not be needed in our Village Courts. Prosecutors in other courts often waive the insufficiency of factual allegations. See People v. Taylor, 97 AD2d 381, 467 N.Y.S.2d 590 (1st Dept. 1993) and People v. Martinez, 111 AD2d 30, 488 N.Y.S.2d 706 (1st Dept. 1985). In our Court, many defendants are pro se or cannot afford attorneys. There is no statutory authority which allows me to assign counsel in violation cases. See, People v. Daniel Louis, New York Law Journal, March 15, 1999 at 1, 25 and 33. If defendants can afford counsel at all for these cases, then legal fees should not be dwindled by costly motion practice. Today this Court holds that henceforth as long as a defendant meets the requirements of CPL § 710.60(1), the Court will grant a pre-trial hearing. The requirements are that the motion be made in writing. The Court holds that motions may be written out by hand and the People may respond by hand. Sworn allegations setting forth legal grounds must be stated. The allegations may be set forth by persons with actual knowledge or upon information and belief. This Court may then summarily grant or deny the motion. See CPL § 710.60. The Court can then set the matter down for an immediate hearing or apply the speedy trial provisions of CPL § 30.30. See People v. Vancol, 166 Misc 2d 93, 631 N.Y.S.2d 996 (1995). The Court may then render an immediate pre-trial decision and if warranted and the parties agree, go forward to trial and verdict. Such simplified procedures are more compatible with this Court and what defendants may afford.
As to what averments the defense may allege to secure a hearing, the Court finds that it is minimal providing the allegations are not merely conclusory or boiler plate. See People v. Vega, 210 AD2d 41 (1st Dept., 1994); People v. Smith, 212 AD2d 552, 623 NYS2d 123 (2nd Dept., 1995); People v. Marte, 207 AD2d 314, 615 NYS2d 678 (1st Dept., 1994); People v. Mercer, 204 AD2d 741, 612 NYS2d 650 (2nd Dept., 1994); People v. Lopez, 213 AD2d 255, 624 NYS2d 122 (1st Dept., 1995) and People v. Beauvil, printed in The Magistrate, March — Spring, 2004, Vol. 44, No. 1 at 22 and 23. For example, in this case the parties agree that it involves a warrantless search. They disagree as to whether there was consent. In a reply affirmation submitted by defense counsel, he states: ". . . the sources of the information and grounds for my beliefs, are premised upon discussions had with the fee owner of the subject property, Juana Ventura and the occupant that opened the door when Village officials entered . . ." The Court is not at this time granting a People v. Huntley, 15 NY2d 72, 255 NYS2d 838, 204 NE2d 179 (1965) hearing since the People have stated: "There are no statements of the defendant which the People intend to offer at the trial." See paragraph 6 of the People's affidavit in opposition.
Once the requirements of CPL § 710.60(1) have been met, the Court must summarily grant the motion providing the People concede the truth of allegations of fact. CPL § 710.60(2). That was done in this case by both sides agreeing that there was no warrant. There is then a presumption that in the absence of consent or exigent circumstances that the search is illegal. Here the issue of fact that is disputed and which can only be determined after a hearing is whether there was consent to search or not. See, People v. Mendoza, 82 NY2d 415, 604 NYS2d 922, 624 NE2d 2017 (1993). Under Mendoza, the movant should also allege facts which support an expectation of privacy. See People v. Chavous, 204 AD2d 475, 611 NYS2d 903 (2nd Dept., 1994) and People v. Omaro, 201 AD2d 324, 607 NYS2d 44 (1st Dept., 1994).
Professor Barry Kamins of the Fordham Law School has written of the meaning of consent as it applies to "searches and seizures." He has noted:
" 1. Consent Searches
One of the major exceptions to the warrant requirement is a voluntary consent to search. It has been held repeatedly that, in dealing with the consent to search, the People have a "heavy" burden of proving voluntariness. See People v. Whitehurst, 25 NY2d 389, 306 NYS2d 673 (1969); People v. Crowley, ___ Misc.2d ___, NYLJ 7/13/93 (App. Term, 9th 10th Jud. Dist., 1993). The Court of Appeals has defined a consent to search as voluntary, "when it is a true act of the will, an equivocal product of an essentially free and unconstrained choice." See People v. Gonzalez, 39 NY2d 122, 128, 383 NYS2d 215 (1976). Conversely, the Court has clearly stated that true consent is "incompatible with official coercion, actual or implicit, overt or subtle." Id. Courts frequently define involuntary consent as "submission to authority" in which a suspect succumbs to the will of the police. See People v. Gonzalez, supra, at 129. Cf. People v. Maldonado, 184 AD2d 531, 584 NYS2d 174 (2nd Dept., 1992).
Whether a consent to search is voluntary, is a question of fact which must be determined from the totality of circumstances in any particular case. See People v. Segura, ___ Misc.2d ___, N.Y.L.J.
4/16/92 (App. Term, 2nd and 11th Jud. Dist., 1992); People v. Flores, 181 AD2d 570, 581 NYS2d 58 (1st Dept., 1992); People v. Rose, 187 AD2d 617, 589 NYS2d 931 (2nd Dept., 1992). There is no "bright line" test of voluntariness and no one factor, in and of itself, will be determinative. The form of the consent is not determinative either, as a valid consent can be oral (see People v. Rivera, 60 NY2d 910, 470 NYS2d 577 (1983), written (see People v. Jakubowski, 100 AD2d 112, 472 NYS2d 853 (4th Dept., 1984; People v. Bell, 197 AD2d 583, 602 NYS2d 647 (2nd Dept., 1993) or implied by specific conduct. See People v. Alba, 81 AD2d 345, 440 NYS2d 230 (1st Dept., 1981); People v. Ayala, ___ Misc 2d ___, N.Y.L.J. 11/9/92 (Sup.Ct., NY Co., 1992); People v. Davis, 120 AD2d 606, 502 NYS2d 80 (2nd Dept., 1986) (stepping aside at doorway); People v. Rivas, 182 AD2d 722, 582 NYS2d 727 (2nd Dept., 1992) (hand signal); People v. Schof, 136 AD2d 578, 523 NYS2d 179 (2nd Dept., 1988); People v. Long, 124 AD2d 1016, 508 NYS2d 774 (4th Dept., 1986); People v. Davis ___ Misc 2d ___, N.Y.L.J. 9/7/93 (NY Crim. Ct., 1993). Matter of Jermaine W., 210 AD2d 236, 619 NYS2d 741 (2nd Dept., 1994) (mother helped police look for a gun). Cf. People v. Diaz, ___ Misc 2d ___, N.Y.L.J. 11/28/95 (Sup.Ct. Bronx Co., 1995) (production of apartment key while in hallway did not indicate consent for police to enter)." Barry Kamins, New York Search Seizure, Gould Publications (1996).
The Court finds that the defendants averments by counsel are sufficient to warrant a hearing. The Court orders that Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) and Mapp v. Ohio, 367 U.S. 643 (1961) hearings shall be held.
This constitutes the decision of the Court and the matter is set down for a hearing on January 13, 2005.