DECISION & ORDER The defendant, MICHAEL OWEN, haying been indicted on February 21, 2020, for Murder in the Second. Degree (Penal Law §125.25[1]), filed an omnibus motion on November 18, 2020, consisting of a Notice of Motion and an Affirmation in Support. In response thereto, the People have filed an Affirmation in Opposition dated December 6, 2020. The defendant thereafter filed a Reply Affirmation on January 4, 2021. Upon consideration of these papers and a review of the Grand. Jury minutes, the Court disposes of this motion as follows: I. GRAND JURY PROCEEDING The Court grants the defendant’s motion to the limited extent that the Court has conducted an in-camera inspection of the Grand Jury minutes. Upon such review, the Court finds no basis upon which to grant defendant’s application to dismiss or reduce the indictment and finds the release of the grand jury minutes or any portion thereof unnecessary to assist its determination. First, the evidence presented was legally sufficient to support each of the crimes charged. Further, the grand jury proceeding was not defective; proper legal advice and, adequate instructions were given by the assistant district attorney (CPL §210.35[5] and §190.25[6]). Finally, the indictment conforms to the requirements of CPL Article 200. II. FRYE HEARING/SUPPRESSION OF PDCM DATA Defendant further moves to suppress all information related to the per call measurement data (PCMD) generated by the defendant’s cell phone and argues the data is inadmissible. The defense did not seek a Frye hearing in his initial moving papers. The defendant requested a Frye hearing in his reply to the People’s opposition. Nevertheless, the Court will address this issue. The defense argues this data has not been generally accepted by New York courts. In the alternative, the defendant requests the Court conduct a Frye hearing to determine whether the technology is generally accepted in the scientific community. The People oppose and argue that Nassau County, in the trial of People v. Darrell Fuller, Nassau County Court, Carter, J., Indictment No. 1784N-2012, in addition to other jurisdictions such as Illinois and Kansas, has permitted the use of PCMD at trial. There is no New York authority or case that has ruled on whether a Frye hearing is necessary to decide this issue. The People argue that “PCMD is similar to cell site location information in that it tracks the location of the defendant’s handset.” The People affirm that PCMD “differs from cell location data because it is captured whether or not a phone call or text is received.” The defense does not contest that cell site information data is routinely admitted in New York courts. Defendant’s argument is limited to PCMD. Several New York cases have ruled that cell site location information data is not a proper subject for a Frye hearing “since the expert testimony proffered by the prosecution did not concern a novel scientific theory, technique, or procedure, but instead involved deductions made from cell phone site data in a manner consistent with a generally accepted scientific process upon which courts have previously relied” {People v. Littlejohn, 112 AD3d 67, 73 [2d Dept 2013]. Similarly, the Fourth Department in People v. Clayton, 175 AD3d 963 [4th Dept 2019], affirmed the County Court’s denial of the defendant’s request for a Frye hearing with respect to the admission of the defendant’s cell phone tracking evidence “because the testimony of the People’s expert did not concern a novel scientific theory, technique, or procedure, but instead involved deductions made from cell phone site data in a manner consistent with a generally accepted scientific process” (id. at 967). This Court believes that PCMD should be treated the same as cell site location information data in deciding whether to grant a Frye hearing and thus, reject the defendant’s request for a Frye hearing with respect to this evidence. Accordingly, the defendant’s motion to suppress PCMD is denied. In addition, defendant’s motion for a Frye hearing is denied. The Court’s decision should not be interpreted to mean that PCMD will be admissible at trial. The decision to admit PCMD is left to the sound discretion of the trial court. Testimony on “how cell phone towers operate must be offered by an expert witness because an analysis of the possible ranges of cell phone towers and how they operate is beyond a juror’s day-to-day experience and knowledge” (People v. Ortiz, 168 AD3d 482, 483[1st Dept 2019]). The Court in Ortiz concluded that the “expert was not qualified to provide expert testimony regarding deductions from cell phone site data” (id. at 483). III. HUNTLEY HEARING The People served the defendant with CPL §710.30 notices pertaining to oral statements, some of which were electronically recorded, alleged to have been made by him to law enforcement on several different dates in January 2020. The defendant’s motion for suppression of statements is granted to the extent that the Court will conduct a Huntley hearing prior to trial concerning the noticed statements for the purpose of determining whether Miranda warnings were necessary and, if so, whether he was properly advised and made a knowing, intelligent and voluntary waiver thereof, or whether the statements were otherwise involuntarily made within the meaning of CPL §60.45. IV. MAPP HEARING The defendant moves to suppress several cell phones that were seized from him upon his arrest. The People oppose the defendant’s application in its entirety and affirm that no property that the People are seeking to introduce at trial was recovered from the defendant’s person at the time of his arrest. The People submit the defendant’s cellular phone was observed in plain view inside the center console of the defendant’s vehicle and was removed for safekeeping the day he was arrested. To the extent that the defendant is requesting a Mapp hearing, said request is denied based upon the failure of the motion papers to raise a factual dispute on a material point which must be resolved before the Court can decide the legal issues (People v. Mendoza, 82 NY2d 415 [1993]). Suppression motions must state the legal ground of the motions and “must contain sworn allegations fact,” made by the defendant or another person (CPL §710.60[1]). In the instant matter, the affirmation submitted in support of said motion fails to contain any sworn allegations of fact supporting the basis for relief, namely that the evidence was obtained from an illegal search. Inasmuch as no “ground or grounds” (CPL §710.60[1]) have been set forth by the defendant to establish a legal basis for suppression, defendant’s request for a Mapp hearing is denied with leave to renew, upon presentation of facts to justify a Mapp hearing. V. SEARCH WARRANT Defendant’s motion to controvert the warrants for cell site tracking and to search the defendant’s car and cell phone is denied. A presumption of validity attaches to a warrant issued by a Judge (see People v. Castillo, 80 NY2d 578, 585 [1992]. Search warrant applications must merely “provide the court with sufficient information to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search” (People v. Cooper, 120 AD3d 710 [2d Dept 2014]; see also People v. Nieves, 36 NY2d 396, 401 [1975]). With regard to cell site location information (CSLI) applications specifically, “the factual allegations must establish probable cause to believe that relevant and material evidence of the kind specified in the Order would be found within the requested records” (People v. Harris, 62 Misc3d 1076, 1081 [Sup Ct, Queens County 2019] citing Carpenter v. United States, ___ US ___, 138 S Ct 2206, 2221 [2018]). This Court has reviewed the CSLI affidavit as well as the affidavit in support of the warrant to search defendant’s car and cell phone. The cell site application contained information establishing probable cause to believe that records relating to the location of defendant’s phone would provide evidence of the location, planning and execution of the underlying offense (see People v. Simpson, 62 Misc3d 374, 389-90 [Supt Ct, Queens County 2018]; citing Carpenter, 138 S Ct at 2217; Riley v. California, 573 US 373, 385 [2014]). In regards to the affidavit in support of the warrant to search the defendant’s car and cell phone issued by the Honorable Helene Gugerty, Detective Finn based his application on information he obtained from named witnesses, surveillance videos depicting the defendant and his car, statements made by the defendant and a source for defendant’s cell phone number. Similarly, with respect to the affidavit in support of the warrant for cell site location information issued by the Honorable Patricia Harrington on January 21, 2020, Detective Carroll based his application on information he obtained from named witnesses, surveillance videos depicting the defendant and his car, statements made by the defendant and a source for defendant’s cell phone number. This information was more than sufficient to supply requisite probable cause to issue both warrants. Even if this Court were to find that the affidavit with respect to the cell site application failed to establish probable cause, it still satisfied the requirements of the Stored Communications Act (SCA). The SCA authorizes disclosure of non-content information as defined in section 2703(c) pursuant to court order if the People establish “specific and articulable facts showing that there are reasonable grounds to believe that…the records or other information sought, are relevant and material to an ongoing criminal investigation” (see In Re Application of the US for Orders Pursuant to Title 18, US Code, Section 2703(d), 509 F Supp 2d 76, 79 [D Mass 2007]). The facts submitted in the affidavit established reasonable grounds to believe that the cell site records were relevant to the ongoing murder investigation. VI. WADE HEARING The defendant further moves to suppress the out of court identification made by Lisa Brown to the Grand Jury. The People oppose and contend that identification was not a police arranged identification procedure and thus, no hearing is warranted. A review of Ms. Brown’s Grand Jury testimony indicates there was no police arranged identification procedure within the meaning of CPL §710.20(6). Accordingly, the defendant’s request for a Wade hearing is denied. VII. BAIL APPLICATION The defendant’s application to release the defendant on his own recognizance or in the alternative, with a GPS monitor bracelet is denied. There has been no change in circumstances demonstrated by the defendant that would warrant a deviation from his current remand status. VIII. DNA TESTING The defendant requests an order directing the Nassau County Medical Examiner’s Office to release to his expert, Windsor Forensic and Bode Technologies Inc., all Y-STR DNA and fetal DNA material for an independent examination. The People consent to the release of the unused portions of the dried secretion swabs from the victim’s neck and fetal tissue by the Nassau County Medical Examiner to the defense expert for analysis. The People request the Court direct that any portions of the materials not used by the defense expert be returned to the Nassau County Medical Examiner’s Office upon completion of testing. The defendant’s application is granted. The People are hereby directed by this Court to submit a proposed short form order permitting the release of the aforesaid material to the defense expert. IX. DISMISSAL/INTEREST OF JUSTICE The defendant’s motion for dismissal in the interest of justice pursuant to CPL §210.40 is summarily denied, as he has failed to set forth any facts warranting dismissal and thus, no hearing is necessary (People v. Schlessel, 104 AD2d 501 [2d Dept 1984]). Lastly, the defendant’s request for an extension of time to make further motions is denied as premature, with leave to renew upon a proper showing of necessity. All applications not specifically addressed herein are denied. This hereby constitutes the decision and order of this Court. SO ORDERED. Dated: February 8, 2021
