DECISION AND ORDER m ichael Disdier, who stands charged, inter alia, with Attempted Assault in the First Degree [P.L. §110/120.10(1)], has moved to controvert the search warrant issued on April 26, 2023, by the Honorable Dena Douglas, which authorized a search of Disdier’s vehicle. The People have submitted for the Court’s review the search warrant application, along with the transcript of testimony by Detective Kaitlin Walsh-Guzman as heard by Justice Douglas. The People oppose the motion in its entirety. On April 13, 2023, Louis Linder was driving northbound on Vermont Avenue, in East New York, Brooklyn, with his girlfriend, Nicole Robinson, who was in the front passenger seat. Linder honked at the vehicle in front of him, purportedly driven by Disdier, for driving too slowly. When both vehicles reached the intersection, Disdier rolled down his window and yelled at Linder. The light then turned green, and Disdier and Linder’s vehicles nearly collided. At the following intersection, Linder pulled alongside Disdier’s vehicle, whereupon the parties began to argue. Linder exited his vehicle, walked towards Disdier’s vehicle, and Disdier allegedly shot Linder, causing a graze wound to his chest. Robinson became central to the NYPD’s eventual apprehension of Disdier for the shooting. According to the search warrant application, she informed Det. Walsh-Guzman that she had observed the shooting and recognized the driver as “Mike, Kim’s uncle, who she has known since growing up.” See Search Warrant Affirmation, 597/23, at 2 (hereafter “SW Aff.”). On April 13, 2023, Robinson provided a screenshot of Disdier’s Facebook account to Det. Walsh-Guzman, and later identified Disdier in a confirmatory photo identification procedure on April 15, 2023. When Det. Walsh-Guzman reviewed the NYPD surveillance video of the incident, the vehicle belonging to the shooter was assigned license plate number KZB1086, which, upon a check of the NYPD records, was registered to Michael Disdier. The vehicle was discovered at 185 Wortman Avenue in Brooklyn, New York, and was towed to the 75th Precinct pending the outcome of the search warrant application. During the course of his arrest, Disdier informed the police that “the gun is at the bottom of the Canarsie River, that he has a tendency to black out and fight…when he got to the corner of Hegman he heard a guy beeping, that instead of going around him, the guy blocks, that he starts some Jamaican shit, that he just drove…that he feared for his life, and the next thing he remembers is parking his car.” SW Aff. at 2. “To establish probable cause, a search warrant application must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place.” People v. German, 251 A.D.2d 900, 901 (App. Div. 3d Dept 1998). Probable cause may be based on hearsay information if the application satisfies the two-prong Aguilar-Spinelli test: the warrant must demonstrate “(i) the veracity or reliability of the source of the information, and (ii) the basis of the informant’s knowledge.” People v. Griminger, 71 N.Y.2d 635 (1998); see Spinelli v. U.S., 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). As to the first prong of the test, when reviewing the issuance of the search warrant, “a presumption of validity attache[s] to the warrant given that a Magistrate had already reviewed the purported basis for the search and determined it to be valid[.]” People v. Castillo, 80 N.Y.2d 578, 585 (1992). Here, Justice Douglas reviewed the search warrant application, heard live testimony from the detective, and found the witness reliable, all in accordance with CPL §690.40(1). See also People v. Taylor, 73 N.Y.2d 683 (1989). The second “basis of knowledge” component is satisfied by the informant’s own description of the underlying circumstances, or by independent police investigation that confirms or corroborates the information provided by the informant. See People v. Bigelow, 66 N.Y.2d 417 (1985); Delgado v. City of New York, 86 A.D.2d 502 (App. Div. 1st Dept. 2011). The Court has conducted a review of the search warrant application and minutes and finds that the “basis of knowledge” prong was met. Det. Walsh-Guzman provided sufficient details regarding the police investigation that corroborated the identification of Disdier provided by the informant. Det. Walsh-Guzman was informed by Nicole Robinson, who purportedly observed the shooting, that the perpetrator was “Mike, Kim’s uncle, who [Robinson] has known since growing up.” Robinson then provided Det. Walsh-Guzman with a screenshot of Disdier’s Facebook account. She also identified Disdier to the police via a confirmatory photograph. While investigating the matter further, Det. Walsh-Guzman recovered the license plates for the shooter’s vehicle from an NYPD surveillance video, searched the plates in the NYPD database, and found that the vehicle was registered to Michael Disdier. The vehicle was not reported stolen at any time. While at the precinct, Disdier also purportedly admitted to an altercation on the road at the same time and place of the alleged offense, along with ownership of the subject vehicle when shown a still of the surveillance footage. Accordingly, the Court finds that the search warrant is valid. Disdier argues that if the motion to controvert the search warrant is denied, a Wade or Rodriguez hearing must be granted to determine whether the photographic identification procedure in this matter was unduly suggestive. See Wade, 388 U.S. at 228; see also People v. Chipp, 75 N.Y.2d 327, 335 (1990); People v. Adams, 53 N.Y.2d 241, 252 (1981). A narrow “confirmatory identification” exception exists for the notice and hearing requirements of CPL §710, wherein a Wade hearing may be summarily denied. The People invoke such an exception here. In cases where “the protagonists are known to one another, ‘suggestiveness’ is not a concern, and hence, [CPL 710.30] does not come into play.” Gissendaner, 48 N.Y.2d at 552. The invocation of this exception is “tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification. This is so, because as a consequence of applying the exception, the defendant will be denied a Wade hearing to explore suggestiveness.” Rodriguez, 79 N.Y.2d at 450. Given the significance of such a finding, the People bear the burden of showing that the parties are known to each other, and that any confirmatory identification would be impervious to police suggestiveness. See People v. Boyer, 6 N.Y.3d 427 (2006). While the People’s motion papers state that Ms. Robinson knows Disdier from “seeing him approximately one thousand times over the last twenty or thirty years,” Ms. Robinson does not know Disdier personally. There are also no facts in the People’s submission to this Court about the nature of those contacts, nor the most recent time Ms. Robinson has encountered Disdier. Accordingly, while the People have demonstrated the threshold familiarity for probable cause in the search warrant application, a Rodriguez hearing is ordered to determine whether the confirmatory identification is impervious to police suggestiveness. This constitutes the decision and order of the Court. Dated: May 31, 2024
