The defendant’s motion to inspect the Grand Jury minutes is granted. Upon inspection, the motion to dismiss the indictment or reduce a charged offense in the indictment is denied. The minutes reveal that a quorum of the grand jurors were present during the presentation of evidence and at the time the District Attorney instructed the Grand Jury on the law. The evidence before the Grand Jury was sufficient to support each and every count in the indictment. The defendant’s application for release of the Grand Jury minutes is accordingly denied. The defendant’s motion to dismiss the indictment for a defect in the District Attorney’s instructions on the law to the Grand Jury is denied. The instructions were not defective as a matter of law. A Huntley hearing [People v. Huntley, 15 N.Y.2d 72 (1965)] is granted to determine the voluntariness of the statements allegedly made by the defendant, and a Dunaway hearing [Dunaway v. New York, 442 U.S. 200 (1979)] is granted to determine if the statements attributed to defendant were the products of an impermissible arrest. Defendant’s motion to controvert the search warrant and to suppress all physical evidence seized or for a Mapp/Darden hearing thereon is denied. This Court has examined, in camera, the search warrant as well as the agent affidavit in support of the search warrant application. Upon said inspection this Court finds that the warrant was properly issued upon a finding of probable cause. CPL 690.50; Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 383 US 410 (1969). A defendant has a general right to the discovery of search warrants and search warrant materials because he needs the documents to mount a constitutionally based challenge to the warrant. See People v. Darden, 34 N.Y.2d 177, 182 (1974)(recognizing that generally the issue of probable cause must be determined solely on the basis of a record fully available to defendant); see also People v. Cahine, 150 Misc.2d 242, 243 (Crim. Ct. 1991); People v. Seychel, 136 Misc. 2d 310 (Sup. Ct. NY Co. 1987); People v. Beniquez, 215 A.D.2d 678 (2nd Dept. 1995); People v. Pimental, 182 A.D.2d 80 (2nd Dept. 1992); see generally People v. Brown, 294 A.D.2d 513 (2nd Dept. 2002); People v. Peterson, 266 A.D.2d 480 (2nd Dept. 1999). This right is not absolute and a defendant’s interest in litigating suppression may, in exceptional circumstances, be subordinated to safety precautions necessary to encourage private citizens to participate in law enforcement. See People v. Castillo, 80 N.Y.2d 578 (1992). In this matter there is no application based upon the information sourced to any private citizen. In order to justify the issuance of a protective order, CPL §240.50(1) requires that the People in this case make a showing of good cause that there is a danger to the integrity of physical evidence or a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors which outweighs the usefulness of the discovery. They seek a protective order in this matter. The Court has reviewed ex parte and in camera the application for a search warrant in this matter and finds that the People have failed to demonstrate good cause. First there is no allegation from any type of informant. The application is based upon law enforcement’s own averments. Second, there is no basis for this Court to ascertain the credibility or veracity of the information, a task best left to the adversary process and finally the District Attorney’s Office of the Bronx takes the position that search warrant affidavits and such material are not discoverable. This is incorrect. It is almost impossible for a defendant to adequately challenge a search pursuant to a warrant without the application. A knowledge of the factual circumstances is generally necessary to allege perjury in the affidavit. Additionally, it is equally as difficult to allege a lack of probable cause when one has no idea what facts were set forth to establish probable cause. In order to vindicate the constitutional rights of defendants, the warrant application is presumptively discoverable, given the important interest of the defendant in being able to adequately litigate any claimed Fourth Amendment violations. The preferred procedure in these cases is for the People to provide defense counsel with the demanded document. Defense inspection of the actual affidavit, as opposed to the face of the warrant, is the necessary predicate to a motion to controvert. In effect the People seek a flat ban on impeachment of veracity that then vitiates any probable cause requirement of all real meaning. Franks v. Delaware, 438 U.S. 154 (1978). In Franks v. Delaware, the Court held that where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. The withholding of the warrant application makes this impossible to be done. Further the People’s blanket refusal to turn over the search warrant application and related material make it impossible for defense counsel to move in a single omnibus motion to controvert an unseen search warrant application. The boilerplate prosecution language, in response to the necessity of a boiler plate defense motion, opposing the defense reserve language asserting the right to make further motions misuses the CPL. Such prosecutorial behavior, as an institutional matter, is what the Castillo court warned against. This Court holds that in the absence of actual specified informant information in the application for a search warrant, the application and the warrant together are discoverable and should be provided to defense counsel in the ordinary course of discovery. Any practice to the contrary traduces CPL 240′s letter and spirit. People v. Castillo, 80 N.Y.2d 578 (1992). This constitutes the decision and order of the Court. Dated: August 12, 2019 Bronx, New York
