People v. Cruz

DECISION AND ORDER On September 7, 2018, a witness, visiting the resident of an apartment in the vicinity of 93rd Street and 3rd Avenue in Brooklyn, looked out the window of that apartment and observed the defendant stab a man to death on the sidewalk. The defendant now moves pursuant to Criminal Procedure Law Section 245.30(2) for an order granting access and entry into that apartment. The defendant contends that he must access and enter the apartment in order to assess the visiting witness’s viewpoint. The defendant also argues that the apartment must remain in an unchanged condition. The People oppose the defendant’s motion as they argue the privacy interests of the apartment dweller, who is neither a witness nor in any way connected to the crime, override the defendant’s purported need for access. The People further contend that other evidence in the case — duplicative equivalent evidence — renders the requested access redundant. For the reasons that follow, the defendant’s motion is denied. Although the defendant has a fundamental right to investigate and present a defense, the Court is unwilling to order the veritable invasion of an uninvolved citizen’s home, especially when the defendant has failed to articulate that he would otherwise be deprived of evidence. Significantly, the defendant has been provided with a copy of a remarkably clear cell phone video that the visiting witness recorded from the window of the apartment. The video unquestionably demonstrates the witness’s perspective and ability to observe the scene — a public sidewalk. What is more, the defendant has been provided with extensive discovery — video surveillance recordings of the stabbing, body camera footage, and crime scene photographs.¹ It bears repeating, the visiting witness’s viewpoint has been preserved by other means, and, as such, an order forcing the apartment dweller to open his/her home to strangers, would be unreasonable and unduly burdensome.² So, too, the defendant’s request that the apartment remain unchanged in the interim is unpersuasive to the extent that it is the view of the public sidewalk below that he seeks to preserve, and not any item within the apartment itself. More importantly, as COVID-19 sweeps across the world, the country, and New York City, particularly ravaging Brooklyn, this Court is loath to order a private citizen with no connection to the crime to welcome strangers — defense counsel, a defense investigator, law enforcement personnel — into his/her home.³ While the long-reaching and long-lasting effects of COVID-19 are still uncertain, what is certain is that this is a precarious and dangerous time in our history.⁴ As such, permitting entry into that apartment would unreasonably place the apartment dweller in harm’s way. The Court is simply unwilling to do so. Based on the foregoing — the overriding privacy interests of the apartment dweller, the significant, duplicative evidence, and the COVID-19 pandemic — the defendant’s motion is denied. Conclusion This constitutes the Decision and Order of this Court. Dated: December 11, 2020