DECISION AND ORDER By a motion dated July 17, 2019 and filed with the Court on July 18, 2019 (“Motion to Controvert”), the Defendant moved to controvert the search warrant (“Search Warrant”) and to suppress all evidence seized pursuant to its execution at [XXX], First Floor Apartment, Brooklyn, New York (“Location”) on the grounds that the search warrant affidavit (“Affidavit”) was not supported by probable cause. Specifically, the Defendant challenged the validity of the Search Warrant arguing that (1) the Search Warrant was facially invalid in that (a) the Search Warrant was issued on less than probable cause; and (b) the basis of knowledge and the reliability of the informant was not established in violation of Aguilar v. Texas, 378 US 108 (1964) and Spinelli v. United States, 393 US 410 (1969) (collectively, “Aguilar-Spinelli”) and (2) the information provided to the Hon. Danny Chun, the issuing judge (“Issuing Judge”) of the Search Warrant was stale. The Defendant further moved to (1) compel production of the unredacted Affidavit, (2) compel the production of the confidential informant at a hearing and trial, and (3) requests a Darden hearing and a Franks-Alfinito hearing pursuant to Franks v. Delaware, 438 US 154 (1978) and People v. Alfinito, 16 NY2d 181 (1965) (collectively,”Franks-Alfinito”). The People have submitted an opposition (“Opposition Motion”) dated July 5, 2019 and filed with the Court on July 29, 2019 to Defendant’s Motion to Controvert. II. By felony complaint (Docket No. CR-044161-18KN) filed on October 4, 2018 (“Complaint”), the Defendant was charged and arraigned in Kings County Criminal Court on one count of criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]), one count of criminal possession of a controlled substance in the seventh degree (Penal Law §220.03), two counts of criminally using drug paraphernalia in the second degree (Penal Law §220.50 [2], [3]) and one count of possession of pistol ammunition (Administrative Code §10- 131 [i] [3]). These charges arose pursuant to the execution of the Search Warrant on or about October 2, 2018 at approximately 8:05 PM at the Location where Police Officer Patrick Foley of the New York City Police Department observed the Defendant in possession of a quantity of crack/cocaine, tetrahydro cannabinol, a scale with crack/cocaine residue, empty zip lock bags, a key holder with crack/cocaine residue and a.357 caliber shell casing. When the police entered the Location, the Defendant was observed on the first floor in the living room, seated on a couch and the items were in plain view in the living room. According to People’s CPL 710.30 (1) (a) notice served at Defendant’s arraignment, the Defendant stated that he lived at the Location. On December 5, 2018, the felony charge of criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]) was dismissed by the People. On January 23, 2019, the charge of possession of pistol ammunition (Administrative Code §10-131 [i] [3]) was dismissed. All other misdemeanor charges were retained in the Complaint. III. Motion to Compel Production of the Unredacted Affidavit As to Defendant’s motion for the unredacted copy of the Affidavit, on May 3, 2019, the Hon. Gina Levy Abadi rendered an order (“Order”) granting People’s motion for a protective order and directed the People to provide the Defendant with a copy of the redacted version of the Affidavit within seven days. According to parties’ motion papers, on May 6, 2019, the People complied with said Order and served said copy on defense counsel. In the Motion to Controvert, the Defendant renewed his application to compel production of the unredacted Affidavit. As the Defendant has not provided this Court with any new facts or changed circumstances, this part of Defendant’s motion for the unredacted Affidavit is denied. In addition, by a motion dated July 18, 2019 and filed with this Court on July 22, 2019, the People moved ex parte for a protective order for the minutes (“Minutes”) underlying the Search Warrant application. On July 22, 2019, this Court granted People’s application and directed the People to forward forthwith to the Defendant a copy of the redacted Minutes. IV. Motion to Controvert the Search Warrant With regard to Defendant’s motion to controvert the Search Warrant, where an application for a search warrant is based upon information provided to the affiant by an informant, a warrant may be issued if the magistrate finds sufficient grounds to conclude both that the informant was reliable and that such informant’s information was credible (Aguilar v. Texas, 378 US 108 [1964]); Spinelli v. United States, 393 US 410 [1969]). Here, the Search Warrant application was predicated upon the testimony of an identified confidential informant concerning the informant’s firsthand observations of illegal activity, as set forth in the Affidavit of Police Officer Kyle Barnett. Because the Issuing Judge was “in a position to assess” the informant’s reliability by personally examining the informant documented by the Minutes, and because the informant attested to the truthfulness of the statements contained in Police Officer Barnett’s affidavit concerning informant’s personal observations of criminal activity, the two-pronged test of Aguilar-Spinelli was not implicated (People v. Taylor, 73 NY2d 683 [1989]; People v. Hicks, 38 NY2d 90 [1975]; People v. Small, 22 AD3d 509 [2d Dept 2005]). In addition, the confidential informant’s reliability was established because the confidential informant’s testimony was given under oath and the confidential informant was identified to the Issuing Judge. In determining that an informant is reliable, “a magistrate may rely upon the fact that information was given under oath” (People v. Wheatman, 29 NY2d 337, 345 [1971]). Accordingly, this Court finds that the Issuing Judge was provided with information sufficient to support a reasonable belief that evidence of the crime could be found in the Location and that probable cause existed. Defendant’s argument that the information provided by the confidential informant might have been stale at the time of the Search Warrant application is without merit. Having reviewed the unredacted Search Warrant application, the last incident occurred within a short period of time prior to the application of the Search Warrant. In addition, the Search Warrant was timely executed within the 10-day period permitted by law. (CPL 690.30 [1].) V. Motion for a Darden Hearing As to Defendant’s motion for a Darden hearing (People v. Darden, 34 NY2d 177[1974]), because both the confidential informant and the police officer who applied for the Search Warrant appeared and testified before the Issuing Judge, the Defendant is not entitled to a Darden hearing. VI. Motion to Reveal the Identity of the Confidential Informant Defendant’s motion to reveal the identity and to compel the production of the confidential informant at trial, or alternatively, at a hearing pursuant to People v. Goggins, 34 NY2d 163 (1974) is denied. Here, the confidential informant was not present at the Location at the time of the Search Warrant execution, and the Defendant is not being charged with any crimes that the confidential informant witnessed. Because the confidential informant merely provided initial information about the other individual who resides at the Location to Police Officer Kyle Barnett, the confidential informant would be unable to provide any additional information as to Defendant’s guilt or innocence with regard to the crimes charged in the Complaint. Accordingly, Defendant’s motion made pursuant to Goggins (34 NY2d 163 [1974]) is denied. In addition, the Defendant has failed to “show a basis in fact to establish that his demand does not have an improper motive and is not merely an angling in desperation for possible weaknesses in the prosecution’s investigation” (Goggins 34 NY2d 163, 169, citing Roviaro v. United States, 353 U.S. 53, pp. 53-65). VII. Motion for a Franks-Alfinito Hearing The Defendant requests a hearing pursuant to Franks-Alfinito (Franks, 438 US 154; Alfinito, 16 NY2d 181) “should the Darden hearing reveal inconsistencies between the informant’s account of what he or she observed at the target location and of his or her track record as an informant and Officer Barnett’s affidavit” (Mot. to Controvert at 16). The law permits the Defendant to challenge the facts as they appear in a search warrant affidavit (Alfinito, 16 NY2d 181 [1965]). However, the Defendant has the burden to establish by a “preponderance of evidence” (Franks, 438 US 154) that “the detective, in applying for a search warrant knowingly made false statements or did so with reckless disregard for the truth” (People v. Holman, 248 AD2d 637, 638 [2d Dept 1998]). If a Defendant does not “make a ‘preliminary showing that a false statement [was made] knowingly and intentionally, or with reckless disregard for the truth’” then no hearing is required (People v. Gayle, 166 AD2d 454, 454 [2d Dept 1990], citing Franks, 438 US 154, 155 [1978]). Here, the Defendant has failed to meet his burden to make a substantial preliminary showing to be entitled to a Franks-Alfinito hearing. Accordingly, Defendant’s motion for a Franks- Alfinito hearing is denied. VIII. Defendant’s Motion to Controvert is denied; provided that Defendant’s motion seeking the right to make further motions is granted to the extent afforded by CPL 255.20 (3). This constitutes the DECISION and ORDER of the Court. Dated: July 29, 2019 Kings County, New York
