Defendant sought access into two private residences wherein it is alleged he committed burglaries in May 2016. Counsel for defendant served notice upon the home owners of those locations advising them that the defendant would be seeking an order from the court authorizing entry into the residences pursuant to CPL §245.30. The homeowners advised the District Attorney’s Office that they received the notice and asked the assigned assistant district attorney to represent their interests before the court. A hearing was held on February 13, 2020 related to the defense request. The defendant’s motion is denied in its entirety for the reasons set forth herein. Defense argued, in sum and substance, that the new law favored a review of evidence by the defendant in anticipation of his upcoming trial in that the defendant “can shed light on the premises…that a private investigator or myself alone would not be able to do so” and additionally, the defendant “can shed the most light on what the photographs say or not say regarding prosecution.” Defense further argued that the homeowners should have been present in court, either personally or through an attorney, to place their position and objection on the record and the People had no legal right to argue on their behalf. The People argued that the new law did not allow for access by the defendant but only by the defense attorney or his/her investigator. The People went on to argue that they have provided photographs taken at the time of each burglary and also provided current photographs of one location that underwent construction such that the interior of the home does not look as it did when the burglary was committed. The People argued that the photographs are sufficient evidence to protect the rights of the defendant and any entry into the residences will serve no other purpose than to re-victimize the home owners in light of the fact that the accused entered “the most intimate and private place within your home,” that is, the bedroom. The People further argued that the photographs have preserved the crime scene and that entry into the homes “wouldn’t give any further evidence to the defense without impeding on the privacy interests” of the home owners. The People advised that each home owner was objecting to anyone entering their home to take photographs, measurements or for any other purpose. FACTS: On May 12, 2016, two homes in New Hyde Park, Nassau County were burglarized. It is alleged that the defendant entered one home through a bedroom window at the rear of the residence and entered the second home through a kitchen window at the rear of the residence. The defendant provided a Mirandized statement admitting to these entries and gave reasons for his actions. Property was likewise recovered from the defendant and identified by one of the homeowners. Moreover, an eyewitness identified the defendant as being in the neighborhood at the time of the incident. That eyewitness took a photograph of the automobile he observed the defendant driving which revealed a registration to “Augustus, E, D, Jr.”. Photographs from both locations at the time of the incident and the grand jury testimony of witnesses was provided to the defense. As stated above, new photographs of one of the locations that recently underwent construction was also provided. A hearing has not yet been held to determine the admissibility of the defendant’s statements. PROCEDURAL HISTORY: Defendant was arrested on May 13, 2016 and released on bail. The defendant was not arraigned on an indictment until June 9, 2017 and assigned counsel. For the remainder of 2017, the defendant advised the court that he was retaining private counsel. As of February 2018 when defendant still had not retained counsel, assigned counsel was relieved and current counsel was assigned. Also, as of February 9, 2018, defendant was incarcerated on Riker’s Island for charges pending in Queens County. Defendant made bail and again advised the court he was retaining private counsel. On April 6, 2018, a bench warrant was issued for defendant’s arrest as he failed to appear in court. It was later determined that defendant was arrested again in Queens County and was incarcerated. The court spent the entirety of 2018 and 2019 producing the defendant for conferences only to have the defendant refuse to come to court or ask the court to allow his Queens matters to proceed first. A portion of these adjournments included a 730 exam as ordered by the judge assigned to the Queens matters. As of November 25, 2019, defense notified the court that the defendant was soon to be released from custody. On January 21, 2020, the defendant appeared before this court having resolved his other matters. This case is now ready for trial under the new statute and this request for entry into the homes is the final matter to be resolved before litigation may begin. ANALYSIS: CPL Article 245 was enacted after passage within the New York State (NYS) Legislative Budget Bill in April 2019. As such, the legislative memorandum speaks in broad terms about the need for enhanced discovery in an effort to provide defendants with more information, in a shorter time span, believing that such information will help defendants decide whether to plead guilty in a particular case. The NYS Assembly Memorandum in support of legislation states, “[i]mportantly, Article 245 is even-handed. It requires both the prosecution and the defendant to provide the opposing party with extensive discovery early in the case.” Interestingly, there is no further commentary on CPL §245.30 other than a general statement that this discretionary authority that has been given to the courts was not available under prior legal authorities. The NY Justice Task Force also released a report related to the new legislation. It specifically commented on access to crime scenes by defense and stated that the requesting party “must demonstrate that such access would be material to the preparation of the case or helpful to the jury in determining any material factual issue.” It continued, “using photographs and measurements as an alternative to physical access may be necessary to address…the privacy of those in possession of private premises, but added that this alternative should be used only where necessary and not considered a default.” This commentary specifically references access into a crime scene, in this case two residences, by a defendant. http://www.nyjusticetaskforce.com/pdfs/Criminal-Discovery.pdf. The practice commentary written by Justice Donnino sheds some additional light on the implementation of this new statute. It states, [t]he statute requires the court to consider the need for access, as well as the privacy or “actual hardship” of the affected individual or entity. And, a court may deny access when the “probative value” from access “has been or will be preserved by specified alternative means,” which may include video or photographic means. The practice commentary allows access to a location by defense counsel after a request by defendant but does not mention access by a defendant. Additionally, the commentary advises that when the complainant does not give consent to the People to enter the home, a search warrant may be required. See Mincey v. Arizona, 437 US 385, 395; 98 S.Ct. 2408, 2415; 57 L.Ed.2d 290 (1978). CPL §245.30 (2) reads as follows: Order to grant access to premises. Without prejudice to its ability to issue a subpoena pursuant to this chapter and after an accusatory instrument has been filed, the defendant may move, upon notice to the prosecution and any impacted individual, agency, or entity, for a court order to access a crime scene or other premises relevant to the subject matter of the case, requiring that counsel for the defendant be granted reasonable access to inspect, photograph, or measure such crime scene or premises, and that the condition of the crime scene or premises remain unchanged in the interim. The court shall consider defendant’s expressed need for access to the premises including the risk that defendant will be deprived of evidence or information relevant to the case, the position of any individual or entity with possessory or ownership rights to the premises, the nature of the privacy interest and any perceived or actual hardship of the individual or entity with possessory or ownership rights, and the position of the prosecution with respect to any application for access to the premises. The court may deny access to the premises when the probative value of access to such location has been or will be preserved by specified alternative means. If the court grants access to the premises, the individual or entity with ownership or possessory rights to the premises may request law enforcement presence at the premises while defense counsel or a representative thereof is present. This law appears to anticipate quick access to a crime scene. Access three years after the crime was likely not envisioned. In researching access to a crime scene long after the crime was committed, the court turned to CPL §270.50 for guidance. That section allows for a jury to view a scene when the visit would be “helpful to the jury in determining any material factual issue.” The practice commentary written by Justice Donnino states: A material change in the premises or place in question subsequent to the time in question will plainly impact on whether the visit will be helpful. People v. Wilson, 225 A.D.2d 497, 639 N.Y.S.2d 812 (1st Dept. 1996) (a view through an apartment window utilized by an eyewitness was properly denied where there had been a “substantial change” in the condition of the apartment window by “the addition of an air conditioner and the partial destruction of the window bars”). The existence of photographs, a video of the premises or place, maps and diagrams may obviate the “helpful” need of a visit. See People v. Young, 225 A.D.2d 1066, 639 N.Y.S.2d 209 (4th Dept. 1996). On a strict reading of CPL §245.30, there is no authority for the court to allow a defendant access to a premises. Although a defendant may move for such an order, the statute states that defense counsel may be given access. As written, the statute does not account for the pro se defendant making the same request. But as that issue is not before this court, it will not be addressed. As such, defendant’s request to be allowed into the premises along with his attorney is denied as not authorized by law. Defendant’s request and statement that there is an “expressed need for access to the premises including the risk that the defendant will be deprived of evidence or information relevant to the case” is likewise denied. The court has before it the photographs taken at the time of the burglary. These photos depict the points of entry into the homes in addition to the rooms that were burglarized. Moreover, new photos were provided to defense that now depicts changes to one of the two premises that was burglarized. Entry into that residence would serve no purpose as material changes to the location have occurred. In this case, defense did not sufficiently articulate the necessity for entrance into either home. There was no indication why measurements would be beneficial to this defendant’s defense; there was no indication why additional photos would further benefit the defense. This court appreciates the value in visiting a crime scene. However, this court must balance that value against the rights of the homeowners who have already been victimized by the unauthorized entry into their homes. This court finds that the assistant district attorney had the authority to represent the positions of the homeowners and finds that the hardship placed upon these homeowners should defense be allowed to enter their residences outweighs the limited benefit the defense would obtain by entering the homes.1 As such, defendant’s motion is denied in all respects. SO ORDERED. Dated: February 26, 2020
